INDUSTRIAL WEAVERS COOPERATIVE SOCIETY LTD Vs. COLLECTOR HARDOI

JUDGEMENT

(1.) THIS is an appeal from the judgment and order of a learned Single Judge dated 6-3-1974 allowing a writ petition. The petition arose out of proceedings of an auction sale held in connection with the recovery of a loan advanced to Industrial Weavers Cooperative Society Ltd., opposite party no. 6, in the writ petition. It appears that the loan was not paid and proceedings for the recovery of loan were taken under the provisions of Secs. 279 and 282 of the U. P. Zamindari Abolition and Land Reforms Act. Fifteen power loom machines and twelve electric motors together with accessories were attached and put to sale. The bid of respondent no. 6, viz. Niaz Ahmad, was the highest. It was to the tune of Rs. 21,000/-. He was declared the purchaser and he deposited a sum of Rs. 5,250 being 1/4th of the sale price on the spot. The remaining 3/4th was to be deposited by 31st March, 1973, which he did within the time prescribed. He then applied for the delivery of the goods sold but he was informed by the authorities concerned that the papers had been submitted to the Collector for confirmation of sale and delivery could be made only after the sale was approved by him. On August 31, 1973 the respondent no. 6 was informed that the Collector had refused to sanction the sale on the objection of the Industrial Weavers Cooperative Society Ltd. on the ground that the price fetched was inadequate, and a re-auction was ordered. The Collector's order to that effect was dated 23rd of August 1973. Before re-auction could take place respondent no. 6 Niaz Ahmad challenged the order dated ?3rd of August, 1973 and prayed for its quashing. The direction for re-auction was challenged on the ground that the sale stood concluded, as the bid of the respondent no. 6 was accepted and full price of the property had been realised from him. It was alleged that the Collector had no jurisdiction to cancel the auction.

(2.) THE proceedings for recovery of the loan were taken under the provisions of Sec. 282 of the U. P. Zamindari Abolition and Land Reforms Act by attachment and sale of the machineries.

(3.) IT is admitted that the machinery was fitted in earth and was attached to it. The question however is whether all machinery which is embedded in the earth is 'immovable property'. The observation of Blackurn, J. in Holland v, Hodgson, 1872 LR 7 CP, 323 may be usefully quoted in this connection. They are as follows :-