ATAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner herein seeks issuance of a writ of certiorari quashing the order dated 31.3.1997 passed by the respondent No. 4 and the recovery proceedings initiated against the father of the petitioner which culminated in the auction sale of tractor bearing registration No. UMV 9482, on 28.2.1997 and issuance of sale certificate dated March 6, 1997. The ground on which certiorari is sought is that the recovery proceedings were initiated against the petitioner's father Dhanus Dhari Singh who died on 9.9.1996 but the petitioner who is legal heir of Dhanus Dhari Singh was not brought on record and the recovery proceedings were initiated against dead person.

(2.) In 1994 a writ petition was filed by Dhanus Dhari in which the recovery proceedings initiated vide citation dated 28.1.1994 for the recovery of a sum of Rs. 1,74.527 were sought to be quashed. This Court by Judgment and order dated 1.4.1994 (quoted in paragraph 1 of the writ petition) stayed the recovery proceedings subject to the condition that the petitioner would deposit a sum of Rs. 70,000 within a month and a sum of Rs. 30,000 within one month next thereafter and the balance amount plus interest plus recovery charges in two monthly four equal Instalments. The tractor which had already been attached, it was further provided, would remain in the custody of the Recovery Officer till such time as the amount of Rs. 70,000 was deposited. The Recovery Officer was given option to consider the prayer of the borrower for the release of the tractor on payment of Rs. 70,000. It was further provided in the judgment and order dated 1.4.1994 that in case of default of any of the conditions, indulgence granted by the Court would not be available to the defaulter-petitioner therein. The writ petition was disposed of with these observations. It is alleged that a sum of Rs.70,000 was deposited on 3.4.1994 pursuant to the Judgment and order of this Court dated 1.4.1994 but it is nowhere stated that the tractor which was already seized and attached during the life time of Dhanus Dhari was ever released. It was on default being committed in respect of the payment of instalments pursuant to the judgment and order dated 1.4.1994 that the tractor was put to auction on 28.2.1997 in which the contesting respondent was the highest bidder having offered a sum of Rs. 1,04,500. He deposited one-fourth of the bid money on spot and the remaining three fourth on 4.3.1997 on which date certificate was issued under the Joint signatures of Deputy Collector. Handia, Allahabad. Tehsildar Handia. Allahabad and Nilam Adhikari, Naib Tehsildar, Handia, Allahabad. The auction, it is alleged in the counter-affidavit, was approved on 6.3.1997 and the vehicle which was under attachment was released in favour of the auction purchaser on 11.3.1997. It is further alleged in the counter-affidavit, that the tractor was in a ruined condition and a sum of Rs. 44,448 was spent in its repair by the auction purchaser.

(3.) Sri AH Hasan, learned counsel appearing for the petitioner urged, placing reliance on a decision of this Court in Smt. Sushila Devi v. State of U. P. and others, 1996 CRD (CRS), that the auction sale was void in that it was conducted in respect of the property of a dead person without giving any notice to the legal heirs of the deceased. Sri Kamal Singh Yadav, learned counsel for the respondent- auction purchaser submitted that the recovery proceedings were initiated during the life time of Dhanus Dhari and the tractor was in fact seized and attached before it was put to auction on 28.2.1997 but no objection was filed by the petitioner against the attachment and seizure and, therefore, submitted the learned counsel, the auction sale became absolute after the auction purchased deposited the entire auction money and hence it was not liable to be cancelled merely because on the date of auction sale Dhanus Dhari was not alive. Learned counsel placed reliance on a Division Bench decision of this Court in Shiv Narain Tiwari v. District Magistrate, Fatehpur and others, 1991 AWC 210. Learned counsel also submitted that objection under Rule 285-1 of the Rules made under the U.P.Z.A. and L.R. Act. 1950 would not be maintainable in respect of an auction sale of movable property and the Commissioner was justified in rejecting the objection of the petitioner.