IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1022 of 2007(M/S) Beer Singh, S/o Sri Dal Chandra, R/o Village Chauhan Patti, Tehsil Jaspur, District Udham Singh Nagar, Uttaranchal. ….Petitioner Vs Tehsildar, Jaspur, District Udham Singh Nagar and others. …..Respondents Dated: - 01-05-2008 Hon’ble B.S. Verma , J. Heard Sri V. D. Bisen, learned counsel for the petitioner and Sri Vinod Nautiyal, learned Additional Advocate General for the State. The present writ petition has been filed by the petitioner with a following prayers: - (a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 8-12-2006 (Annexure No.1 to this petition) (b) Issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to deposit the remaining amount of auction, within the time prescribed. (c) Issue, any other order or direction which this Hon’ble High Court may deem fit and proper in the facts and circumstances the case. (d) Award the cost of the petition to the petitioner. Brief facts giving rise to the present writ petition are that the auction was made on 23-11-2006 on behest of State Bank of India of the land of debtors i.e. Sri Mahendra Singh S/o Sri Dilip Singh and Sri 2 Ranjeet Singh, S/o Sri Mahendra Singh, residents of Village Tanda Prabhapur, Tehsil Jaspur, District Udham Singh Nagar. On 23-11-2006 an auction was made in respect of the land measuring 1.053 Hectare, the petitioner was the highest bidder in the auction. The petitioner’s bid was of Rs. 8,70,000/- (Rs. Eight Lac and Seventy Thousand only) as per the conditions of the auction. The petitioner had deposited ¼th amount of the total amount i.e. Rs. 2,17,500/- as per auction condition and the remaining amount was directed to be paid within 15 days from the date of auction. However, due to some personal difficulties, the petitioner could not deposit the remaining ¾ amount. The petitioner’s nephew Sri Om Prakash approached to the respondent No.2 i.e. Additional District Magistrate, Udham Singh Nagar to grant some more time to deposit the remaining amount, but the respondent No.1 i.e. Tehsildar, Jaspur, District Udham Singh Nagar has passed the impugned order without considering the difficulty of the petitioner. The petitioner has also made a representation on 14-12-2006 through his nephew Sri Om Prakash to the District Magistrate, Udham Singh Nagar but no action had been taken on the representation made by the petitioner so far. In the short counter affidavit, the respondent No.1 i.e. Tehsildar, Jaspur, District Udham Singh Nagar has stated in paragraph No. 4 of the affidavit that the ¼ amount has been rightly forfeited in view of the fact that the petitioner did not deposit the ¾ amount within 15 days as per terms and conditions of the auction. In the rejoinder affidavit, the petitioner has further reiterated the averments made in the writ petition and it has been stated in paragraph No. 3 that the debtor and owner of the land, which was auctioned, has deposited the defaulted amount and it has further been stated in paragraph 5 of the affidavit that the cause of action was terminated when the consequential steps were not been taken and as such the petitioner is entitled to get back the forfeited amount. 3 I have heard Sri V.D. Bisen, learned counsel for the petitioner and Sri Vinod Nautiayl, learned Additional Advocate General for the State. The only controversy in the present writ petition is that whether the petitioner is entitled for refund of the ¼ amount, which was deposited in auction proceedings by him on 23-11-2006 or not. It is not a disputed fact that the recovery certificate was issued by the Collector on the request made by the State Bank of India and the amount was recoverable as the land revenue and recovery proceedings were initiated to recover the defaulted amount from Sri Mahendra Singh and Sri Ranjeet Singh, who had taken loan from the State Bank of India. The relevant provision to decide the controversy is Rule 285-D and 285-E of the U.P. Zamindari Abolition and Land Reforms Act, 1952 (hereinafter referred to as ‘Act’), which are quoted as under: - “285-D. The person declared to be the purchaser shall be required to deposit immediately twenty-fiver per cent of the amount of his bid, and in default of such deposit the land shall forthwith be again put up and sold and such person shall be liable for the expenses attending the first sale and any deficiency of price which may occur on the re-sale which may be recovered from him by the Collector as if same were an arrear of land revenue”. “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.” 4 On a perusal of the above quoted rules, it is very clear from the language of the said rules that in case of default of the deposit, after the expenses of the sale has been defrayed therefrom, the amount shall be forfeited to the 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. The argument of the learned counsel for the petitioner is that the Rule 285-E of the Act also provides that the property be re-sold and the defaulted amount was permitted to be deposited by the debtors by the Tehsildar concerned. The only provision whether the petitioner is entitled to receive back purchase money of the amount as has been provided under Rule 285-L of the aforesaid Act which provides that whenever the sale of any holding or other immovable property is set aside under Rule 285-H and 285-I to receive back 5% of the purchase as the Collector or the Commissioner, as the case may be, may determine. These provisions only apply in those cases wherein the full amount has been deposited by the auction purchaser and the sale has been set aside as provided under 285-H and 285-I of the U.P. Zamindari Abolition and Land Reforms Rules, 1952. As there is no such provision in the rule to refund the purchased money to the auction purchaser in that eventuality where the property was not sold further and to auction property and it has been released in favour of the owner/debtor of the land. Learned counsel for the petitioner as well as the State relied upon the judgment of Hon’ble Supreme Court in Munni Lal Mohan Lal Sah Vs. Sardar Sayeed Ahmad reported in AIR 1954 S.C. 349, wherein in paragraph 8, it has been held by the Apex Court that if the payment is not made within the period of fifteen days, the court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the court to re-sell the property is imperative. A further consequence of non –payment is that the defaulting purchaser forfeits all claim to the 5 property. This judgment of the Apex Court is of no help to the petitioner because the auction proceedings were initiated under the U.P. Zamindari Abolition and Land Reforms Rules, 1952 being the amount was recoverable as arrears of land revenue in case at hand while in case before the Hon’ble Apex court the amount was being recovered through Civil Court in execution proceeding. The provisions of Order 21 Rule 85 and Order 21 Rule 86 of C.P.C. and said Rules 285-D and 285-E of the Act are not paremateria. It is pertinent to mention here that Rule 285-E of the Act is mandatory in nature. The full amount of purchased money shall be paid by the purchaser on or before the 15 days of sale and in case of default, the amount shall be forfeited to the Government whether the property has been sold or has been released in favour of the debtor/owner of the land, thus, this provision also of no help the petitioner to receive the amount back as in case of Rule 285-L after the sale is set aside only in 285-H and 285-I of the U.P. Zamindari Abolition and Land Reforms Rules, 1952. In view of the discussion in foregoing paragraphs, I do not find any illegality or infirmity or any perversity in the impugned order. The writ petition is devoid of merit and is hereby dismissed. All pending applications stands disposed of accordingly. (B.S.Verma,J) M.K. 6