Shanti Devi Vs. State of U.P. & Ors  INSC 544 (27 May 1997)
PARIPOORNAN, K. VENKATASWAMI, B.N. KIRPAL
9TH DAY OF SEPTEMBER, 1997 Present:
mr. Justice S.C.Sen Hon'ble Mr. Justice M. Jagannadha Rao R.K. Kapoor, P. Verma,
S.K. Srivastava, B.R. Kapur and Anis Ahmed Khan, Adv. for the appellant Tripurari
Ray, Adv. for Mukul Mudgal, Adv., for the Respondent.
following Judgement of the Court was delivered:
appellant filed objections before the Divisional commissioner, Lucknow is
regard to the sale of her agricultural land in an extent of 8.50 acres held on
25.2/1982 and conformed on 2.8.1982 under the provisions of Section 279 of the
Uttar Pradesh Zamindari Abolition and land Reforms Act, 1950, (hereinafter
called the Act). The Commissioner, by order dated 26.9.1983 dismissed the
objections. The writ petition of the appellant questioning the same was
dismissed by the High Court on 7.5.1997. This appeal arises out of the said order.
sale was conducted for recovery of arrears of Bank Loan in a sum of Rs.
11,619.73 (together with interest) due tot he Central bank of India, Branch Sitapur
pursuant to a certificate for recovery issued under Section 11A of the U.P.
Agricultural Credit Act, !973. The revenue sale was for a loan of Rs.13,000/-.
The Land was under mortgage to the bank for a loan of Rs.7,000/- obtained for
purchase of a pump-set. The auction sale dated 25.2.1982 was confirmed by the
Assistant Collector on 2.8.1982 after obtaining an affidavit from the purchaser
that even after this purchase, the purchaser's holding remained below acres
12.50. During the pendently of this SLP, the appellant was directed to deposit
a sum of Rs. One lakh by order dated 16.6.1997 and the same has been deposited
in this Court. By another order dated 15.7.1997, the said amount has been
directed to be invested in a short terms deposit.
commissioner set out the appellant's objections and to the purchaser's plea but
did not give findings on the various points except the one relating to service
of notices of sale. He held that notices were issued to the appellant regarding
attachment and sale, the sale was adjourned and in regard to the notice for
sale on 25.2.1984 the same was refused by the appellant. He said that in the
absence of objection to the sale within 30 days of sale, the sale had to be
confirmed by the Assistant Collector and this was done on 2.8.1982. Through a
contention\, among others, was raised that if acres 8.50 are added to the
existing holding of acres 5.00 held by the action purchaser, his holding would
exceed acres 12.50, as prescribed under section 154(1) of the Act, no finding
was given by the Commissioner on this question. He also said that before him,
the objector was given a fresh opportunity on sympathetic grounds to pay debt
but the same was not paid.
writ petition, the appellant raised all the objections that were raised before
the Commissioner. The learned Judge held that notice of sale proceedings was
given to the appellant, the same was not availed of, that in fact, the sale
notice for 25.2.1982 was refused by the appellant and none was present on
appellant's behalf at the auction.
High Court also noticed that the commissioner gave a fresh opportunity to the
appellant to pay the loan amount but the same was not availed of. So far as
Section 154(1) of the Act is concerned, the High Court felt that in view
Consolidation 1979 (4) SCC 199, even if the purchaser's holding would go in
excess of acres 12.50, after the purchase, it would be for the Gaon Sabha to
claim the excess from the purchaser and this was because of sections 163 of the
Act permitting taking over of the excess by the Gaon Sabha. Such a provision
showed that the sale in favour of a person whose holding would exceed acres
12.50 after the purchase was not void but was voidable at the instance of the Gaon
Sabha who could take over possession under section 163. In other words, the
High Court assumed that section 163 was in the statute book as on 25.2.1982.
This, as we shall show, is not correct. Reliance was also placed on 1968 R.D.
168 by the High Court to say that restriction under section 154 did not apply
to involuntary sales and that the right of the State to acquire land in excess
of acres 12.50 from the purchaser always remained. Learned Judge also held that
Section 154 dealt with transfers inter vivos and did not deal with the
situation which might arise out of involuntary sales . The writ petition was
against this judgement that this appeal has been preferred.
this appeal, the same contentions which were raised before the High Court were
raised. We have heard the counsel on both sides.
main points for consideration are whether the appellant who did not file
objections under Rule 285 H or I within 30 days of sale could file an objection
after confirmation that the Assistant Collector has not given effect to section
154(1) of the Act and whether there was non-application of mind by the
Assistant Collector, at the Stage of confirmation to this question? If so, what
relief is to be given?.
as the filling of an application for setting aside the sale is concerned, the
same has to be filed within 30 days of sale under Rule 285-H of the U.P. Zamindari
Abolition and Land Reforms Rules, 1952 (hereinafter called the 'Rules') (which
is akin to Order 21 Rule 89 CPC) or under Rule 285 I (which is akin to Order 21
Rule 90 CPC).
I refers to material irregularity or mistake in publishing or conducting the
sale and proof of substantial injury by reason of the irregularity or mistake.
If no application is filed under Rule 285 H or I within 30 days of sale, the
sale shall become final and sale certificate will be issued under Rule 285 J.
If no application is filed under Rule 285- I within the time allowed, all
claims on the ground of irregularity or mistake in publishing and conducting
the sale shall be barred subject of course to establishing fraud in a civil
court by way of a regular suit. We shall go into these provision in greater
detail, a little later.
view of the finding of the Commissioner as well as the High Court that the
appellant had notice of the sale proceedings and that she had refused the sale
notice for the appellant to urge the question of absence of notice of the sale
on 25.2.1982. If therefore the appellant is to be treated as having notice of
sale, then the non-filing of the application under Rule 285 I within 30 days of
sale, will preclude any objection being raised on the ground of "material
irregularity or mistake in publishing or conducting the sale", even if we
assume that the value of the property of acres 8.50 as on 25.2.1982 was
assessed to be Rs.43,664/- on 14.12.1982 by the revenue authorities and even if
that can be treated as proof of substantial prejudice. So this question is
as the plea that the pump-set and buffaloes should have been first proceeded
against before proceeding with the sale of immovable property under section 279
of the U.P. Act, 1951, even assuming the point could be raised after sale, the
respondents have raised a plea that in view of Section 282(3) of the Act,
clauses (a) to (o) of section 60(1) CPC are attracted and these were not
arises whether the pump-set is an 'implement of husbandry' belonging to an
agriculturist and except from attachment and sale under sub-clause (b) of
notice that there is some conflict between various propose to go into that
question. We find that the case can be disposed of an another ground.
here also state that the order dated 20.8.1982 dealing with confirmation of
sale of the collector merely says that an affidavit has been filed by the
auction purchaser that after sale, his holding would not exceed acres 12.50 and
that the affidavit is attached tot he confirmation order. The Assistant
Collector merely states as follows:- "The affidavit of 12 1/2 acres has
been given by the purchaser and the same is attached".
the application filed by the appellant before the Commissioner, it had been
stated by the appellant in para 10 and 11 that the purchaser was already
holding acres 5.05 in her name in Village Jamauli. This was disputed by the
auction purchaser. It is to be pointed out that in the SLP grounds (ground
No.14) it is stated that a photo copy of the Khatauni of the village Jamauli
pertaining to Khata No. 325 was brought on record to show that the auction
purchaser was already owning acres 5.06. In the counter filed by the purchaser
before us, it is stated (para 68) that the appellant's allegation in this
behalf is not correct and that the purchaser does not possess more than Ac.
12.50 and that an affidavit to that effect was filed before the Assistant
Collector. The allegation that in Khata 325 of this village it is shown that the
purchaser owned 5.06 acre, is denied. We have already stated that the
Commissioner has not given a finding on this issue though he has referred to
the rival contentions in this behalf. The High Court, as already stated, said
section 154 (1) deals with restriction on sales or gifts inter vivos and does
not apply to execution sales and that in any event, it was the Gaon Sabha to
recover the excess land, if any, from the purchaser.
we go into main aspect we shall first clear some procedural arising out of Rule
285-k. The question is whether the appellant could have raised this question
arising out of rule 285-J read with Section 154 (1) after the confirmation of
sale and without filing any objection within filing any objection within 30
days of the sale? We shall first refer to Rule 285-K:
285-K: If no application under Rule 215-I is made within the time allowed
therefore, all claims on the ground of irregularity or mistake in publishing or
conducting the sale shall be barred:
that nothing contained in this rule shall bar the institution of a suit in the
civil court for the purpose of setting aside the sale on the ground of
view, the objection that after the court sale vested Acres 12.50 in the
purchaser, she will hold land in excess of Ac.12.50 is not an objection
concerning any "irregularity or mistake in the publishing or conducting
the sale". We may state that the procedure for proclamation of sale is
contained in Rule 282 and the procedure for sale is set out in Rules 285,285-A
to Rule 285-G. None of them refers to section 154 (1) of the Act which deals
with the restriction of a purchaser holding land in excess of Ac.12.50 after a
sale or gift. The next rule, Rule 285-H deals with filing of an application by
the person whose property is sold, for setting aside sale on deposit
(corresponding to Order 21 Rule 89 CPC) and after that, Rule 285-I deals with
the filing of an application, on the ground of material irregularity or mistake
in publishing or conducting the sale. It is only when we come to a latter stage
of the proceedings, namely, after expiry of 30 days from date of sale, that is,
the stage of Rule 285-I that it requires the confirmation-authority to be
"satisfied" that there was no contravention of Section 154 of the
Act. In our view, therefore, any objection raised by the person whose property
has been sold to the effect that the collector has not, at the stage of
confirmation applied his mind to the question whether after the revenue sale,
the purchaser would be holding land in excess of Ac.12.50, is not an objection
relating to any irregularity or mistake in publishing or conducting the sale
and hence it is not barred by Rule 285-k. The sale here was over on 25.2.1982.
The confirmation order was passed on 2.8.1982. Rule 285-J read with Section 154
(1) therefore raises an issue which relates to a factor which the Confirmation.
In our view, Section 285-K does not bar this objection.
aspect becomes clearer if we read the language of Rule 285-J in respect of the
duties of the Collector at the time of 'confirmation' of sale. It reads:-
"Rule 285-J: On the expiration of thirty days from the date of the sale,
if no such application as is mentioned in Rule 285-H or Rule 285-J has been
made or if such application has been made and rejected by the Collector or the
Commissioner, the collector shall pass an order confirming the sale after
satisfying himself that the purchase of land in question by the bidden would
not be in contravention of the provisions of Section 154. Every order passed
under this rule shall be final." It is clear that a statutory duty is cast
on the collector to keep Section 154 in mind at the stage of confirmation of Sale. If it is an objection as to non application of mind
to a provision statutorily relevant at the stage confirmation, the objection
cannot be treated as an objection relating to the irregularity or mistake at or
before the stage of sale. That is why Rule 285-K will not come in the way.
question also arises that if no objection was filed within 30 days of sale
under: Rule 285-I or J, then no other application could have been filed before
the Commissioner after the Confirmation. Assuming it to be so, we are of the
view that the writ petition filed by the appellant can be treated as a challenge
to the order of the Assistant Collector's that he did not apply relevant
factors which he was bound to take into account while confirming the order.
point raised under section 154(1) does not refer to 'fraud' and therefore
remedy of suit mentioned in proviso to Rule 285K is not attracted.
the above hurdle is crossed, the next question is whether such an issue
relevant to Section 154 can be raised in relation to execution sales. Section
154 of the Act deals with restrictions on transfer by a bhumidar. It reads as
follows:- "Section 154. Restrictions on transfer by a bhumidar: (1) Save
as provides in sub section (2), no bhumidar shall have a right to transfer by
sale or gift, any land other than tea gardens any person where the transferee
shall, as a result of such sale or gift, become entitled to land which together
with land, if any, held by his family will in the aggregate, exceed 5.0586
hectares (12.50 acres) in Uttar Pradesh." No doubt, there is no definition
of sale in section 3 of the Act which deals with the meaning of several words.
it has to be noticed that Rule 285-I requires the Collector to 'satisfy'
himself whether the purchase of land in question by the bidder would not be in
contravention of the provisions of Section 154. Obviously, it is intended that
those who purchase in revenue sales should not have a greater advantage over
those who obtain property by transfers transfer inter-vivos.
view, therefore, the High Court was wrong in thinking that the provisions of
Section 154 were not applicable to court sales. If the ruling in Gaon Sabha vs.
Dy.Director of Consolidation, Lucknow[1968 R.D.168] relied upon by the High
Court expressed such a view, then it must be held to be not correct expressed
such a view, then it must be held to be correct in law in view of the express
reference to section 154 in Rule 285 J. Obviously, the attention of the High
Court in the present case was not drawn to rule 285-J.
the same reason, it is not possible to accept the view, at any rate so far as
revenue sales are concerned - that it will only be for the Gaon Sabha to claim
the excess from the purchaser. It is true, while dealing with a private
transfer by way of gift, such a view was expressed [1979 (4) SCC 199] but that
case related to a gift deed dated 19.12.1964 and this court referred to Section
163 of the Act which enabled the Gaon Sabha to eject the transferor from the
excess land and held that the gift as such in that case was therefore not void.
In fact case, this Court pointed out that in connection with some other type of
transfers covered by Section 166, the legislature had, in contrast, declared
such transactions to be void whereas no such words were used in Section 154 or
section 163 and section 163 permitted the Gaon Sabha to acquire the excess land
for the transferee who detained the excess through a sale or gift inter vivos.
above case is clearly distinguishable because we are here not concerned with
the question whether the court sale is void or voidable. We are here concerned
with a statutory provision contained in Rule 285-J which mandates the
Collector, to be "satisfied" about a certain factual position at the
stage of confirming a sale.
here point out that after Kirpa Shankar's case (supra) in 1979, section 163 permitting
Gaon Sabha to take over the excess land was deleted by U.P. Act 20 of 1982 w.e.f.
3.6.1981 and section 166 was introduced w.e.f.
which said that ; "Every transfer made in contravention of the provisions
of this Act, shall be void".
Kirpa Shankar's case cannot apply to post 3.6.1981 sales. The case before us
deals with a sale dated 25.2.1982 and confirmation dated 2.8.1982. We do not
however purpose to go into this aspect because it is sufficient for the
appellant to replay upon the duty cast on the confirmation authority in Rule
285-J to take section 154 into account and prove that duty was not discharged.
question then is whether the Assistant Collector was 'satisfied' on the
material before him that the purchaser did not contravene Section 154(1). In
our view, the statement in the confirmation order by the Collector that the
affidavit of the purchaser that she will not, after purchase, exceed Ac. 12.50
is "attached" to the confirmation order, does not amount to
'satisfaction' of the officer.
was to be arrived at, on an examination of the relevant revenue records of the
area or village concerned.
mere statement of fact by the purchaser by an affidavit before the Collector
that the purchaser did not exceed Ac. 12.50 does not help. The word 'satisfied'
means that there must be evidence of application of mind by the authority
concerned. Merely attaching the affidavit of the purchaser, in our view, does
not amount to application of mind but on the other hand, amounts to
non-application of mind. As already stated, the Commissioner merely referred to
the contention of purchaser that her holding, after purchase, did not exceed
Ac. 12.50. The Commissioner, also referred to the appellant's contention to the
contrary. he did not give any finding on this behalf. The High Court's
attention as already stated, was not drawn tot he express language of Rule
285-J which refers to section 154. The High Court therefore proceeded on the
assumption that Section 154 did not apply to involuntary sales and it also
thought that it was for the Gaon Sabha to intervene. It did not enter any
finding regarding the 'satisfaction' of the Assistant Collector as required by
Rule 285-J. As stated earlier, even if the appellant's application before the Commissioner
is to be treated as not maintainable, it is open to the appellant to challenge
the order of Confirmation dated 2.8.82 on the ground of violation of the
requirement of Section 154 and we can read the said order and quash it inasmuch
as we are not dealing with irregularity or mistake in the proclamation or
conduct of sale. We are only dealing with an illegality arising out of the
confirmation order passed under section 285-J in not noticing section 154(1)
and this can be corrected directly in writ jurisdiction.
result, we hold that the confirmation of sale order dated 2.8.1982 passed by
the Assistant Collector and the order of the Commissioner dated 26.9.1983
rejecting the objections of the appellant are vitiated. The judgement of the
High Court, for the reason given above, is also set aside.
we come to the question whether the matter must be remitted to the confirmation
authority to go into this question. We are of the view that this is not a case
where at this distance of time, we should remand the case to the Commissioner.
There is no question of remitting the matter to the Assistant Collector who
passed the confirmation order to go into this question. Having heard the
counsel and taken noticed of the fact that the appellant has now deposited Rs.
1 lakh as directed by this court and taking note of the fact that the
Commissioner, irrespective of the points in issue, also inclined to give a
chance to the appellant to the deposit the money, we feel that this is a fit
case where instead of going into the question whether the sale was void in view
of section 166 which was introduced w.e.f. 3.6.81- the sale should nit be
confirmed and that consequently the appellant who has been in possession during
the proceedings throughout and also obtained an order of status quo from this
court on 16.6.97 should be allowed to retain the property.
amount of Rs. 1 lakh has been invested in short term deposit in this Court. The
same shall, on maturity, be sent to the High Court to the credit of civil writ
petition No.6557 of 1983. The amount due as per the sale warrant amount with
interest will be ascertained and the same shall first be disbursed to the
concerned revenue authority for satisfying the certificate issued to the said
authority order section 11-A of the U.P. Agricultural Credit Act, 1973. The
High Court will ascertain the amount payable under the Certificate together
with interest, if any, as stated in the sale proceedings as incurred by the
Govt. If the amount in deposit now transferred to the High Court is not
sufficient, the appellant has to make good the deficiency. The amount deposited
by the purchaser shall be returned to her together with interest at 12% from
the date of deposit. The interest amount payable to the purchaser shall be disbursed
out of the amount now being.