(1.) SUDHIR Narain, J. The petitioner seeks writ of certiorari quashing the order dated 2-11-1995 passed by the Additional District Magistrate (Finance & Revenue) Ghazipur, respondent No. 3 whereby he cancelled the auction of the disputed property held on 7th September, 1977.
(2.) THE facts of the case in brief are that respondent No. 4 Shamshul Haq had taken loan of Rs. 12,000 from the Industry Depart ment. He mortgaged his house in lieu of the loan. He could not repay the loan amount. Consequently, the Industry Department is sued recovery certificate for sum of Rs. 14,000 on 4- 11-1976. THE property of respondent No. 4 and guarantor was sold in auction on 7-9-1977. This auction is alleged to have been confirmed by the Collector Ghazipur on 18-1-1978 but latter on the amended confirmation order was passed on 16-10-1980 a copy of which is annexed as annexure 2 to this writ petition. After the confirmation of the sale, the petitioner was issued a sale certificate by the Sub- Divisional Magistrate concerned on 19-2-1984. This auction was not challenged either by respondent No. 4 or his guarantor whose properties were sold. On 24-2-1995 respondent No. 5 who is son of respondent No. 4, filed an application before respon dent No. 3 for cancellation of the auction held on 7-9-1977. On his application respondent No. 3 directed the Sub-Divisional Magistrate concerned to submit report in the matter who in his turn directed the subordinate authorities to submit report and consequently on 26-6-1995 the Naib-Tehsildar concerned submitted a report to the Tehsildar concerned stating that he made enquiry and found that house of respondent No. 4 and his guarantor had been sold in auction on 7- 9-1977. THE petitioner had purchased these houses. THE photostat copy of the order of the Collector Ghazipur dated 15-10-1980 and also certifi cate dated 19th February, 1984 were produced before him. He tallied the same from the original documents. THE Sub-Divisional Magistrate concerned submitted a report to the Additional District Magistrate, respondent No. 3 on 26-10-1996. In the report he stated that from the documents in appears that auction had taken place but the sale deed was not registered in the Sub-Registrar's office. THE property was alleged to have been sold for Rs. 5,000 which was not shown as deposited in the Treasury Office. THE original record relating to auction appears to be missing. THE sale was alleged to have been confirmed on 18-1-1978 but photostat copy of the sale confirmation order shows that the Collector confirmed it on 15-10-1980. Respondent No. 3 accepted the report of the Sub-Divisional Magistrate and held that the auc tion dated 7-9-1977 was invalid and can celled the entire auction proceedings. He further directed that if respondent No. 4 had not paid the amount, the recovery certifi cate be summoned from the Industry Department and respondent No. 4 be directed to pay. the amount to the petitioner. This order has been challenged in the in stant writ petition.
(3.) THE procedure for challenging the auction proceedings, is given under Rule 285-H and Rule 285-I of U. P. Zamindari Abolition and Land Reforms Rules, 1952 (in short as 'rules' ). Rule 285-H, provides that a person whose holding or other im movable property has been sold under the provisions of the Act, may at any time within thirty days from the date of sale, apply to have the sale set aside on5 his depositing in the Collector's office- (a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and (b) for payment on account of arrears, the amount specified in the proclamation. Rule 285-I of the Rules provides that at any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material ir regularity or mistake in publishing or con ducting it, but no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.