IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (M/S) NO. 261 OF 2001 Badri Dutt Phuloriya (since deceased) Through his legal heirs. …….…Petitioner. Versus Board of Revenue, Lucknow and others. …….Respondents. Present: Mr. Kurban Ali, Advocate for the petitioner. Mr. Sudhir Kumar, Brief Holder, for the State of Uttarakhand. JUDGMENT Hon’ble Sudhanshu Dhulia, J (Oral) 1. Heard Mr. Kurban Ali, Advocate for the petitioner and Mr. Sudhir Kumar, Brief Holder, for the State of Uttarakhand on the applications. 2. This restoration application (MCC No. 1007 of 2010) has been filed along with Delay Condonation Application for recalling the order dated 25.10.2002. The reasons assigned for delay in filing the restoration application appear to be just and bonafide. Therefore, delay is condoned. Delay Condonation Application (CLMA No. 9943 of 2010) is allowed. 3. The reasons assigned for recalling the order dated 25.10.2002 appear to be just and bonafide. Therefore, order dated 25.10.2002 is recalled and the case is restored to its original number. Restoration Application (MCC No. 1007 of 2010) is allowed. 4. A substitution application (CLMA No. 9945 of 2010) has been filed along with Delay Condonation Application (CLMA No. 9944 of 2010) for substituting the legal heirs of the petitioner. The reasons assigned for delay in filing the substitution application appear to be just and bonafide. Therefore, delay in filing the substitution 2 application is condoned. Delay Condonation Application (CLMA No. 9944 of 2010) is allowed. 5. The reasons assigned for substituting the legal heirs of the deceased also appear to be just and bonafide. Therefore, Substitution Application (CLMA NO. 9945 of 2010) is allowed. Applicants are permitted to supply the amended memo of parties during the course of the day. 6. Also, heard on writ petition. 7. This writ petition has been filed by the petitioner (now deceased) challenging the order dated 19.10.1982 (Annexure –1 to the writ petition) passed by the Board of Revenue, Lucknow in Revision No. 50/L.R./78-79. 8. The matter pertains to an auction sale. Evidently, father of respondent nos. 2, 3 and 4, namely, Gyan Chand had taken a loan from a co-operative society. When the said loan was not repaid, orders were passed by the competent authority for recovery of the same as arrears of land revenue. In the said proceeding, an auction sale of the said land was made on 24.11.1975. Evidently, as per the procedure, which is laid down for such auction under U.P. Zamindari Abolition & Land Reforms Rules, 1972 (from hereinafter referred to as the Rules). Under Section 285 E of the Rules, full amount of purchase money has to be paid by the purchaser on or before the 15th day from the date of said sale at District Treasury. It is an admitted position that for the sale which was made for ` 2,000/- (Two Thousand) only 1/4th of the said amount was deposited by the auction purchaser on the said date and the remaining amount was not deposited within the stipulated period of fifteen days, as given under Rule 285 E of the Rules. Rule 285 E of the Rules reads as under:- 3 “285-E. The full amount of purchase money shall be paid by the purchaser on or before the fifteenth day from the date of the sale at the district treasury or any sub-treasury and in case of default the deposit, after the expenses of the sale has been defrayed therefrom, shall be forfeited to Government and the property shall be re-sold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold. “ 9. The other rules, which are relevant for our purposes, are Rules 285 I, 285 J and 285 K. The same are reproduced below:- “285-I. (i) 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 irregularity or mistake in publishing or conducting 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 injury by reason of such irregularity or mistake. (ii) [***] (iii) The order of the Commissioner passed under this rule shall be final. 285-J. On the expiration of thirty days from the date of sale if on such application as is mentioned in Rule 285-H or Rule-I, 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 bidder would not be in contravention of the provisions Section 154. Every order passed under this rule shall be final. 285-K. If no application under Rule 285-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: Provided that nothing contained in this rule shall bar the institution of a suit in the Civil Court for the purpose of setting aside a sale on the ground of fraud.” 4 10. Meanwhile, the defaulter i.e. Gyan Chand also passed away and his heirs, as it has come on record, moved an application before the concerned authority stating that they are prepared to deposit the amount, which their father had taken as a loan. However, it is also true that no application for setting aside the said sale was filed by the heirs of Gyan Chand, which are presently respondent nos. 2, 3 and 4. An application under Order XXI Rule 99, 100, 101 and 105 of CPC was moved by them before the Collector, which was dismissed by the Collector on 14.3.1978 stating that the said provisions of CPC do not apply to these proceedings. Thereafter, an appeal was filed against the order dated 14.3.1978 before the Commissioner, Garhwal Division, which was dismissed on the ground that no objection had been taken to the sale within time. Ultimately, respondent no. 2, 3 and 4 moved a revision before the Board of Revenue, Lucknow under Section 219 of the Uttar Pradesh Land Revenue Act, 1901. This revision has been allowed by the Board of Revenue on grounds, primarily that mandatory provisions of the Rules, more particularly, Rule 285 E of the Rules, whereby it is mandatory upon the auction purchaser to deposit the amount within 15 days and this 15 days would not mean the day on which the sale is confirmed, but the date when the actual sale is made, as referred above. Board of Revenue has come to conclusion that there was material irregularity and violation of statutory provision while making this auction, it has set aside the auction and has remanded the matter back to the Collector to initiate further recovery in accordance with law. 11. Learned counsel for the heirs of the auction purchaser states that they did deposit the amount when 5 the sale was finally confirmed on 19.5.1977. It is the sole ground taken for justifying the late deposit of the sale amount. This Court is not impressed with this argument. The provisions under Section 285 E are absolutely mandatory. Any violation of the same would entail that the mandatory deposit is taken away and the property be set for fresh auction. Accordingly, this Court is wholly in agreement with the views expressed by the Board of Revenue in the matter. There is no scope for interference in this writ petition. The writ petition is, therefore, liable to be dismissed and is hereby dismissed. No order as to costs. 12. The Registry is directed to inform the concerned Collector about the orders so that the Collector may move in accordance with law. (Sudhanshu Dhulia, J.) 13.12.2010 Rathour