DEVESH CHANDRA DWIVEDI Vs. COMMISSIONER FAIZABAD

JUDGEMENT

(1.) Heard Pt. S. Chandra, learned counsel for the petitioner and Shri Shiv Ganesh Singh, learned Standing Counsel appearing for the respondents-State.

(2.) By means of the present writ petition, the petitioner is challenging judgment and order dtd. 28/8/2002 passed by the Additional Commissioner (Judicial), Faizabad Division , Faizabad (Opposite party no.2 in Revision No.5583, contained in Annexure-27 to the writ petition and order dtd. 20/12/1999 passed by the Additional/ Naib Tehsildar rejecting the application of the petitioner for mutation, contained in Annexure-20 and order dtd. 21/12/1999 passed by the Additional/ Naib Tehsildar directing to record the name of Anjum Faroz over the land in dispute, contained in Annexure-21 with further prayer that the direction in the nature of Mandamus be issued to the opposite parties not to implement the impugned judgment and order dtd. 28/8/2002 passed by the opposite party no.2.

(3.) Factual matrix of the case is that one Jagesher son of Hari Charan tookloan from bank of Baroda in the year of 1981 against Plot No.1025 area 0-8-0, plot No.1344 area 0/3/10 and Plot No.961 area 0-2-5 situated at Village Katka Khanpur, Tehsil Sadar, District Sultanpur. Due to default of loan payment, District Magistrate appointed S.D.M. Sadar to hold the auction and S.D.M. Sadar, Sultanpur held auction as per Rule on 8/3/1989. Auction sale was conducted on 8/3/1989 by S.D.M. in favour of petitioner i.e. Devesh Chandra Dwivedi. S.D.M. made confirm the action sale by order dtd. 23/6/1989. S.D.M., Sadar, under political pressure and due to extraneous reasons cancelled the auction sale dtd. 8/3/1989 by order dtd. 28/7/1989 without power and jurisdiction. Subsequently, the petitioner filed objection before District Magistrate against order dated 28.071989 under Rule 285H but District Magistrate by order dtd. 9/2/1990 refused to entertain with observation that this remedy is open to aggrieved person whose land is auctioned and it is not for who has purchased the land. Petitioner (auction purchaser) approached the District Magistrate, Sultanpur narrated the whole facts. He instructed to contact SDM, the SDM, Sadar issued order of sale certificate on 10/1/1992 ignoring earlier order of SDM dtd. 28/7/1989 which was without jurisdiction. Sale Officer executed sale deed on 10/1/1992 in office of Sub Registrar, Sadar, Tehsil Sultanpur in favour of petitioner-Devesh Chandra Dwivedi and the same is still intact and not cancelled in any proceeding but despite of sale confirmation and auction sale deed in favour of petitioner he could not get possession on the land nor sale amount is ever returned to petitioner. Shri Jageshar took loan and his legal heir did not file objection within 30 days before Collector or Commissioner, Faizabad under Rule 285-I of UPZA & LR Rules,1952. As such, as per statute Rule 285-J the aution sale was become confirmed after 30 days automatically by fiction of law. After Death of Shri Jageshar, his son by making concealment of fact deposited money in bank on 16/6/1999 in Bank and executed sale deed illegally in favour of one Sri Anjum Faroz on 23/6/1999. Tehsildar Sadar by order dtd. 20/12/1999 (Annexure-20 of the writ petition) passed the order of mutation. Against the order executing sale deed, the petitioner approached the SDM stating the fact that the land in question has been auctioned and sale has been confirmed in favour of the petitioner. Thereafter, S.D.M. by order dtd. 27/11/2000 (Annexure No.24) set aside the order of Tehsildar and restored the name of petitioner. Against the aforesaid order, revision was filed before the Additional Commissioner, Faizabad Division, Faizabad. Commissioner Vide order dtd. 28/8/2002 set aside the order of the SDM which is not challenged in the present writ petition.