SRICHAND JAIN Vs. STATE OF U P

JUDGEMENT

(1.) -This petition has been filed for quashing the order dated 19th September, 2001 passed by the Sub-Divisional Magistrate attaching the land in question, order dated 10th November, 2001 passed by the Principal Secretary (Revenue), Government of U. P. and for setting aside the auction proceedings. The petitioner has also sought a direction from this Court for deciding the objections filed by the petitioner under Order XXI, Rule 58 of the Code of Civil Procedure (hereinafter called the 'C.P.C.').

(2.) THE dispute in present petition relates to Khasra Plot No. 233 measuring 4-13-0 bighas in village Pathanpura in Saharanpur. Two sale deeds were executed on 24.4.1992 and 1.4.1992. THE Additional Collector (Finance and Revenue), Saharanpur initiated proceedings under Section 33/47A of the Indian Stamp Act in respect of both the sale deeds and an order was passed for payment of the deficient stamp duty and penalty amounting to Rs. 1,64,140 in respect of sale deed dated 24.4.1992 and an amount of Rs. 2,75,485 in respect of sale deed dated 1.4.1992. THE said amount was not deposited as a result of which a recovery certificate was sent to the Collector. THE Sub-Divisional Magistrate passed an order for attachment of the property. THE petitioner filed objection on 3rd March, 1999 under Order XXI, Rule 58, C.P.C. and also moved an application for release of the property in both the cases. THE two cases were consolidated and heard. An order dated 19th March, 1999 was passed by the Sub-Divisional Magistrate, Saharanpur, allowing the objections filed by the petitioner under Order XXI, Rule 58, C.P.C. and releasing the property attached but ordered that other properties of the vendors be sold. Surprisingly, the property which had been ordered to be released by the Sub-Divisional Magistrate vide order dated 19th March, 1999 was again attached vide order dated 19th September, 2001. THE said property was directed to be sold by auction. When the petitioner came to know about this order, he again filed objections under Order XXI, Rule 58, C.P.C. before the Sub-Divisional Magistrate, Saharanpur and alongwith the said objection, he also filed an application for stay of further proceedings. THE Sub-Divisional Magistrate passed any order on 5th November, 2001 on the stay application that as Khasra No. 233 had already been released by his predecessor, further proceedings of auction sale fixed for 12th November, 2001 would remain stayed. It is after passing the said order, that one Shri Mahesh Bhargav, advocate and Press Reporter of the Swatantra Bharat newspaper, a total stranger, produced his own letter before Principal Secretary (Revenue), Government of U. P. on 10th November, 2001 at his residence on a holiday (Second Saturday) and the Principal Secretary on the said application itself passed an order directing the District Collector, Saharanpur, to auction the property for realisation of the stamp dues. This order dated 10th November, 2001 passed by the Principal Secretary (Revenue) was brought to the notice of the District Collector on Sunday, the 11th November, 2001. THE District Collector, pursuant to the directions issued by the Principal Secretary (Revenue) directed the Sub-Divisional Magistrate to comply with the directions. THE Sub-Divisional Magistrate, in turn, passed an order directing the Naib Tehsildar to take immediate action. THE result was that the property in dispute was sold by the Naib Tehsildar on 12th November, 2001 to one Shri Kamal Nain Sharma for a sum of Rs. 6,10,000. THE petitioner had no knowledge of these facts and when he went to the court of Sub-Divisional Magistrate on 13th November, 2001 and inspected the file, he came to know about the aforesaid developments. He has, therefore, filed this writ petition for the reliefs, referred to above.

(3.) LEARNED counsel appearing for the respondents, however, defended the order passed by the Principal Secretary (Revenue) and the consequential auction proceedings contending that for realizing the amount, the property of the petitioner was rightly sold and the objections filed under Order XXI, Rule 58, C.P.C. were not maintainable and the order so passed was void.