BABU RAM Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) THE petitioner, Babu Ram, has filed this writ petition under Article 226 of the Constitution of India praying for quashing the impugned orders dated 19-10-1982 passed by the Board of Revenue U. P. Lucknow contained in Annexure-5 and the order dated 9-4-1981 passed by the Commissioner, Allahabad Division, Allahabad, contained in Annexure-1 to the writ petition.

(2.) THE matter pertains to sale proceedings conducted by the Collector, Kanpur for realisation of an industrial loan of Rs. 13,250/- taken by the opposite party no 6, Smt. Shanti Devi. On default in payment the sale officer proceeded to attach house no. 119/233 situate in Mohalla Omnagar, Darshanpurwa, Kanpur which was entered in the names of Babu Ram and his two brothers. Babu Ram had 1/3rd undivided share in the said house. Ram Charan held the other 1/3rd undivided share in the said house. After attachment a proclamation for sale was issued and it was on 10th April, 1978 that the sale took place. Opposite Parties 4 and 5 were the auction purchasers and they made a deposit of 25 per cent of the auction money then and there. Admittedly the balance 3/4th of the auction money was deposited by the opposite parties 4 and 5 on 26th April, 1978. THE petitioner filed an objection before the Commissioner against confirmation of this sale. THE Commissioner by his order dated 9-4-1981 (Annexure-1) rejected the objection. Smt. Shanti Devi also filed an objection. A revision was also filed by Babu Ram and Ganga Shree, the daughter of Ram Charan, before the Board of Revenue, besides the revision preferred by the petitioner before the Board of Revenue. THE Board of Revenue by its impugned order dated 19-10-1982, contained in Annexure-5, dismissed the revisions. It is against this order that the writ petition has been preferred.

(3.) AS a fact it has been disputed that the Naib Nazir was not present on 25th April, 1978. This, however, is a question of fact and cannot be considered in the writ petition. The only question that survives is as to whether under the provisions of Rule 285-E (supra) the Tahsildar had authority to extend the period of deposit beyond 15 days as provided in the rules. It is not contended by the learned counsel for the opposite parties 4 and 5 that Rule 285-E is not mandatory but he submits that since the fault was on the part of the Tahsil authorities the opposite parties 4 and 5 were not to suffer. The Board of Revenue while dismissing the revision has taken a view that the delay in depositing the money could be extended by the Tahsildar in the circumstances of the case. The Board of Revenue has relied on a decision of Nichhattar Singh v. Babu Khan, AIR 1972 Punjab and Haryana 204. In this case the learned Judge of the Punjab and Haryana High Court noticed a decision of their Lordships of the Supreme Court in the case of Manilal Mohanlal Shah v. Sardar Sayed Mohamad, AIR 1954 SC 349 but failed to take notice of the principle of law laid down by their Lordships. The Punjab and Haryana High Court while distinguishing the case of Shahzadi Begum v. Hakim Manohar Lal, AIR 1955 Hyd. 110 did not take into account the Supreme Court decision. The decision of the Punjab and Haryana High Court as such could not in any way affect the decision taken by the Board of Revenue and the Board of Revenue erred in accepting the view taken by the Punjab and Haryana High Court in preference to the law laid down by their Lordships of the Supreme Court. In the case of Manilal Mohanlal Shah (supra) the Court was considering the provisions of Order 21 Rules 84, 85 and 86 of the Code of Civil Procedure which are para materia to the provisions of sale under the U. P. Zamindari Abolition and Land Reforms Rules. The Court held as under :-