HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule.32 (2)(b) Description of the case. WPMS No. 4112/01 Srinandan Agrawal, Vs The Board of Revenue Approved for reporting Not approved for reporting Date of decision 22.6.2006 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 4112 (MS) OF 2001 (OLD NO. 17210/96) Srinandan Agrawal, S/o Deep Chand Agrawal, R/o Station Road, Kashipur, Nainital. ................Petitioner. Versus 1. The Board of Revenue, U.P., Lucknow. 2. The Commissioner, Kumaun Division, Nainital. 3. The Collector, Nainital. 4. The Sub-Divisional Officer, Kashipur, Nainital. 5. The District Industries Centre, Haldwani, Nainital, through its General Manager. 6. The Bank of Baroda, Kashipur Branch, Nainital through Senior Manager. 7. Tehsildar Kashipur, Nainital. 8. M/S Voken Times (India) Pvt. Ltd. Stone, Moradabad Road, Kashipur District Nainital through its Managing Director. 9. Sadhu Pradhanani, Managing Director of U.P. Master Watch Industries Pvt. Ltd. Safdarjang Enclave New Delhi, residing at Shankar Bhawan, Model House, Nayagaon (East), Lucknow. ...........Respondents. Sri Akhilesh Kalra & Sri Paresh Tripathi, Advocate for the petitioner Standing Counsel, Sri S.K. Jain, Advocate and Sri Rakesh Tapliyal, Advocate for the respondents. Dated: June 22, 2006 Hon’ble Rajesh Tandon, J. Heard the learned counsel for the parties at length. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the impugned order dated 16.12.1995 filed as Annexure No. 14 to the writ petition. Briefly stated, respondent no. 9, Gopal H. Mulani, Executive Director, Ramesh Pridhnani and Chandra Hot Chand Pridhnani Directors executed an agreement for loan of a sum of Rs. 24,22,400/- from Central subsidy on 3rd October, 1986 with General Manager, District Industries, Haldwani, Nainital i.e. respondent no. 5. Thereafter, the Directors approached the respondent no. 6 to get cash credit facility for another firm M/s Modern Times Pvt. Ltd. The cash credit facility is alleged to have been sanctioned to them on 27.12.1987 by the respondent no. 6. The respondents no. 8 and 9 had to repay the central subsidy according to agreement-dated 03.10.1986, but they failed to repay the loan as such under the provisions of U.P. Public Money Recovery dues Act, 1972, the certificate for recovery through ordinary/registered. Process have been issued against the respondent no. 5 by the respondent no. 3 for Rs. 8,56,683/- against the respondent no. 8 relating to land of village Hariyawala, Kashipur, Nainital including building constructed on the said land as well as plant and machinery thereof. Thereafter, on 18.09.1990 a notice under Rule 273 of the U.P. Z.A. and L.R. has been issued for a sum of Rs. 2,56,683/- by the respondent no. 3 against the borrower. The said notice was served through affixation on 27.09.1990. Thereafter again notice under Rule 282 of U.P. Z.A. and L.R. Rules has been issued on 05.12.1990 by the respondent no. 3 against the borrower fixing 14.01.1991 for auction sale of gata nos. 719/1 (1.58) and 720/2 (2.95) total 2 plots (4.53) of Village Sarvar Khadra, Tehsil Kashipur, Nainital. The process server submitted its report on 02.01.1991. In compliance to the notice under Rule 282 of U.P. Z.A. and L.R. the respondent no. 7 was authorized to conduct the proceeding of auction sale on 14.01.1991. Extract of auction sale is quoted below: QnZ fuyke fnukad ƒ†-ƒ-‹ƒ cdhnkj eS0 oksdu Vkbe ¼bf.M;k½ fyfeVsM ‡ fdeh0 LVksu eqjknkckn jksM& dk’khiqj cdk;k /kujkf’k :0 Š‡ˆˆŠ…-00 ¼m|ksx foHkkx½ lEifRr dk fooj.k xzke ljoj[ksMk rglhy dk’khiqj esa eS0 ;w0ih0 ekLVj okp bUMLV`ht izk0 fy0 dk’khiqj ds uke ij ladze.kh; Hkwfe/kjh esa ntZ [k0 u0 ‰… ‰] ‰… Š] ‰… ‹] ‰†0] ,oa ‰†ƒ dqy jdok †-„ „ , ,oa mlesa fueZr pkjnhokjh ljdkjh cksyh :0 Š]ŒŒŒ]ŒŒ ¼vkB yk[k½ ƒ- Jh JhuUnu vxzoky iq= ‡ŒŒŒŒŒ †‰ŒŒŒŒ ˆŒ‡ŒŒŒ ˆ‡ŒŒŒ Jh nhipUnz vxzoky LVs’ku jksM dk’khiqj ‰„ ŒŒŒŒ ------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------------------- lcls mWph cksyh :0 ‰„ ŒŒŒŒ¼:0 lkr yk[k chl gtkj0½ Jh JhuUnu vxzoky dh vk;hA iz;kIr le; nsus ij Hkh blls vf/kd cksyh fdlh vU; us ugh yxkbZA uhyke Jh vfHkuUnu vxzoky us uhyke dh pkSFkkbZ /kujkf’k :ƒŠŒŒŒŒ ¼,d yk[k vLlh gtkj½ rRdky tek dh tks rglhy uktjr esa jlhn laŒ ,&ƒ‰‰‹ƒ‡ fnukad ƒ†-ƒ-‹ƒ ds }kjk tek dh xbZA Jh JhuUnu vxzoky dks fgnk;r nh x;h fd uhyke dh vo’ks"k /kujkf’k :Œ ‡]†Œ]ŒŒŒ ¼ikWp yk[k pkyhl gtkj½ uhyke Lohd`fr dh lwpuk dh izkfIr ds lkr fnu ds vUnj tek djsaxs vU;Fkk pkSFkkbZ tek /kujkf’k tCr dj yh tk;sxhA In the aforesaid auction sale, the petitioner was the highest bidder for a sum of Rs. 7,20,000/-. The petitioner deposited 1/4th auction money i.e. 1,80,000/- in cash vide receipt no. A-177915 dated 14.01.1991. Thereafter the Naib Tehsildar Kshetra Kunda directed the petitioner to deposit remaining 3/4th auction money i.e. a sum of Rs. 5,40,000/- within seven days from the date of its approval. On 23.01.1991 the respondent no. 6 filed an application before the respondent no. 2 under Rule 285 (I) of U.P. Z.A. & L.R. Act. The respondents nos. 6 and 9 have prayed that the auction sale dated 14.01.1991 may be set aside and also prayed that further proceeding may be stayed. This application was moved just after 10 days. Learned counsel for the petitioner has submitted that on the basis of stay application of the respondent no. 6, the respondent no. 2 passed the order to stay the confirmation of sale dated 14.01.1991 vide its order dated 25.01.1991. This order reads as under: “Heard counsel. It has been argued that the property is mortgaged with the Bank. Let the confirmation of sale be stayed and notice issued to O.P. Stay to be operation till 15.2.91. Fix 9.2.91 for hearing.” The respondent no. 8 has also filed an application under Rule 285 (I) of U.P. Z.A. and L.R. Act before the respondent no. 2 for setting aside the auction sale dated 14.01.1991. It has been submitted that the respondent no. 2 extended the stay order dated 25.01.1991 from time to time till final disposal of revision pending before him. Ultimately, the respondent no. 2 held vide its order dated 20.06.1991 to the effect that since balance amount i.e. ¾ auction money is not deposited as such there is no sale and the sale was nullity. The petitioner has challenged the order-dated 20.06.1991 before the Allahabad High Court in a writ petition. The said writ petition has been disposed of on 27.08.1991 and the petitioner was directed to file a revision before the respondent no. 1. The operative portion of the order passed by Allahabad High Court is quoted below: orZeku ;kfpdk dh ifjfLFkr;ksa esa ;g vknsf’kr djrk gwW fd ;fn ;kph vkt ls 20 fnu ds vUnj pqukSrh fn;s x;s vkns’k ds fo:) jktLo ifj"kn ds le{k fuxjkuh nkf[ky djsa rks fuxjkuh xq.knks"k ds vk/kkj ij fu.khZr dh tk;sxh vkSj vof/k ds ckgj gksus dh vkifRr fuxjkuh esa ugh mBkbZ tk;sxhA mDr fVIi.kh ds lkFk ;kfpdk fuLrkfjr dh tkrh gSA Accordingly, the petitioner has filed a revision against the order-dated 20.06.1991 before the respondent no. 1 Board of Revenue. The respondent no. 1 ultimately on 28.06.1992 decided the revision aforesaid and stayed the operation of the order-dated 20.06.1991. The operative portion of the order dated 28.6.1992 is quoted below: bu leLr ifjfLFkfr;ksa dks ns[krs gq, eSa vk;qDr dqek;Ww e.My ds fnukad „ Œ-ˆ- ‹ƒ ds vkns’k dks fujLr djrk gWwA fu;e „ Š‡ ¼bZ½ ds vUrxZr ftykf/kdkjh dks ;g vf/kdkj gS fd og fof/kd izkfo/kkuksa rFk /keZ vkSj leLr ifjfLFfr;ksa dks n`f"Vxr j[krs gq, bl lEcU/k esa U;k;ksfpr fu.kZ; ysaA ftykf/kdjh vius v/khuLFk leLr jktLo vf/kdkfj;ksa dsk mijksDr fu;e „ Š‡ ¼bZ½ ds vkns’kkRed izkfo/kuksa ls voxr dj;s ftlls fd os Hkof"; esa bu izkfo/kkuksa dk dBksjrk ls vuqlj.k djsaA After the order darted 28.06.1992 passed by the respondent no.1, the petitioner filed an application-dated 05.06.1992 before the respondent no. 4. Again on 04.07.1992, the petitioner filed an application along with questionnaire to the effect that whether there was any direction to deposit 3/4th auction money, which was replied in negative: iz’u mRrj &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& D;k izkFkhZ JhuUnu vxzoky ds izkFkZuk i= egksn;] … @† /kujkf’k uktjr fnukad ‡-ˆ-‹„ esa tks fd uhykeh ewY; dh esa tek djus ds vkns’k ugh gq, … @† jkf’k tek djus ckcr gS dksbZ vkns’k gŒ rglhynkj rglhy vkt fnukad †-‰-‹„ rd djs x;s gS vFkok dk’khiqj †-‰-‹„ ughA Ultimately, the petitioner has been directed to deposit ¾ auction money, which he deposited on 7.7.1992 vide receipt No. A-585351 for Rs. 3,54,750/-. The auction sale dated 14.1.1991 has been confirmed on 17.7.1992 and sale certificate has been issued in favour of the petitioner on 12.8.1992. Extract of the sale certificate is quoted below: cdhnkj eS0 oksdu VkbZe bafM;k fy0 eqjknkokn jksM dk’khiqj us ftyk uSuhrky ls m|ksx _.k dk eqŒ Š‡ˆˆŠ… -ŒŒ :i;s dh olwyh ds vUrZxr ckdhnkj dh xzke ljoj [ksM+k rglhy dk’khiqj fLFkr vpy lEifRr ftldk uhps fn;k x;k gS dks esjs iwokZf/kdjh ds vkns’k ƒŠ-‹-‹Œ ds vuqlkj tehnkjh fouk’k vf/kŒ dh /kkjk „ Šˆ ds rgr dqdZ dh x;h Fkh vkSj ckdhnkj dh xzke ljoj [ksMk fLFkr [kljk la[;k ‰… ‰] ‰… Š] ‰… ‹] ‰†0] o ‰†ƒ dqy †-„ „ dh uhykeh uk;c rglhnkj dq.Mk }kjk fnukad ƒ†-ƒ-‹ƒ dks dh xbZ ftlesa mPpre cksyh Jh vfHkuUnu vxzoky iq= Jh nhipUnz vxzoky LVs’ku jksM dk’khiqj dh eqŒ †‰… ŒŒŒ-ŒŒ :i;s dh izkfIr gqbZ FkhA rglhynkj dk’khiqj dh laLrqfr fnukad ƒ… -‰-‹„ ds vuqlkj mPpre cksyh mŒizŒ tehnkjh fouk’k vf/kfu;e dh /kkjk „ … † ds lkFk ifBr fu;ekoyh „ Š‡ ds vUrZxr esjs }kjk fnukad ƒ‰-‰-‹„ dks Lohd`r dh xbZ gSA dszrk }kjk leLr /kujkf’k tek dh tk pqdh gS ftldks rglhynkj dk’khiqj }kjk fu/kkZfjr en esa tek djk fn;k x;k gSA rglhynkj dk’khiqj mPpre ----------------------------------- ---------------------------------------- Thereafter on 14.08.1992, the possession has been delivered to the petitioner. The extract of certificate of possession is quoted below: dCtk izek.k i= vkt fnukad ƒ†-Š-‹„ dks eSa ;wŒihŒ ekLVj okp b.MLV~ht fyŒ dk’khiqj ftyk uSuhrky dks xzke ljoj [ksMk rglhy dk’khiqj ftyk uSuhrky fLFkr fuEufyf[kr lEifRr dk ijxukf/kdkjh dk’khiqj ds vkns’k fnukad ƒ„ -Š-‹„ tks vkns’k fodz; i= fnukad ƒ„ -Š-‹„ esa of.kZr gS ds vuqikyu esa dzsrk Jh JhuUnu vxzoky iq= Jh nhipUnz vxzoky fuŒ LVs’ku jksM dk’khiqj dks fuEufyf[kr xokgku dh mifLFkfr esa ekSds ij n[ky fn;kA--------------------------------------- -------------------------------------------- From the above facts it is clear that the auction proceedings have reached to its finality and certificate of sale was issued in favour of the petitioner and physical possession of the land in dispute was also handed over to him but inspite of the finality to the sale proceedings the respondent no. 8 moved another application before the Collector and obtained ex parte stay order against the petitioner. The said stay order has been vacated on 28.10.1992. Feeling aggrieved against order dated 28.10.1992, he filed a revision being Revision No. 1 of 1992-93 praying therein for quashing the order dated 28.10.1992. Thereafter, the petitioner also filed second revision being Revision No. 2 of 1992-93 against the order dated 12.08.1992 through which the petitioner was given permission to deposit 3/4th auction money. Against the ex parte order dated 28.10.1992, the respondent no. 8 filed a restoration application, which was registered as Restoration Application No. 3 of 1992-93. The aforesaid revisions and restoration applications were decided on 15.02.1996 and 16.12.1995 respectively. Petitioner has submitted that he is in physical possession over the property and the auction sale has been confirmed. Rule 281-I framed under U.P. Z.A. and L.R. Act reads as under:- “285-I. At anytime 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 substantial injury by reason of such irregularity or mistake.” In Ram Swaroop Vs. Board of Revenue 1990 RD (H.C., LB-F.B.) 291, the Full Bench has held as under:- “Rule 285-I as extracted above indicates that the Commissioner is to adjudicate certain rights and intrest of the parties in respect of immovable property. The Commissioner is to decide as to whether there was any irregularity which was material in nature or there was mistake in publishing or conducting the sale for which purpose a procedure is prescribed and in case the Commissioner comes to the conclusion that such things existed, he is to set aside the sale. The order so passed by the Commissioner has been made final. Obviously the proceedings so taken b the Commissioner are judicial in nature. Though it could be said that the Commissioner is not sitting as a court to decide the same, and there is no specific provision in this behalf, the Commissioner will be deemed to be sitting in the court and the order passed by the Commissioner will be amenable to the revisional jurisdiction of the Board of Revenue under Sec. 333 of the U.P. Z.A./ and L.R. act which is analogous to Sec. 219 of U.P. Land Revenue Act. A single Judge of this Court took the view that there was some inconsistency in Indu Engineering and Textiles Ltd. case (supra) and earlier decision on the same point in Sudama Prasad v. State of U.P. 1968 R.D. 88 and referred the matter to the larger bench and this is how the division bench took cognizance of the case in Nihal Singh v. Board of Revenue 1987 R.D. 308. In Indu Engineering’s case (supra), the question was whether Sec. 5 of Indian Limitaiton Act applies to these proceedings and the Commissioner has jurisdiction to enlarge the time during which objection can be filed. There is no dispute that Indian Limitation Act will apply before any court of law. The Division Bench was of the view that there was no inconsistency in the two judgments. The Division Bench did not take notice of the fact that this matter has been referred to the larger bench. The Bench was of the view that no revision lies to the Board of Revenue under Sec. 219 of Land Revenue Act. Obviously in regard to the proceedings under U.P. Z.A. and L.R. Act and the Rules framed thereunder, revision will lie under Sec. 333 of the Act and not u/Sec 219 of Land Revenue Act and it appears that the Division Bench did not notice the distinction. The Division Bench took into consideration paragraph 911 and 912 of Revenue Manual and held that these paragraphs do not in terms apply to the instant case but the classification made in the Revenue Manual is on the whole sound and according to the division Bench hearing of case before the Commissioner assumes the character of quasi-judicial in nature and the same does not alter the essence of proceedings as a whole. Accordingly, we are of the view that the Commissioner while deciding the objection under Rule 285-I of U.P. Z.A. and L.R. Rules will be a ‘court’ as such and the proceedings taken before him will be deemed judicial proceedings as such and the Commissioner who otherwise is a court under U.P. Z.A. and L.R. Act will be deemed to be a court. We are accordingly of the view that the cases of Indu Engineering (supra) and Nihal Singh (supra) were not correctly decided and are over-rules.” Further the Hon’ble Supreme Court in Mangu Ram vs. Delhi Municipality, AIR 1976 SC 105, has held as under: “There is an important departure made by the Limitation Act, 1963 insofar as the provision contained in Section 29, sub- section (2), is concerned. Whereas, under the Indian Limitation Act, 1908 Section 29, sub-section (2), clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded, Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which could include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, sub-section (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani case the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holing that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-section (4) of Section 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court.” In (2005) 4 SCC 572, Hans Raj Banga vs. Ram Chander Aggarwal, the Apex Court has held that after the property is auctioned and the sale having been confirmed a valid title passes to the purchaser. The observations are quoted below: “The bid by way of tender given by the appellant being the highest was accepted. He paid the entire sale consideration. The sale was confirmed in his favour and the sale certificate was issued. Since the property was sold on leasehold basis, the lease deed was executed on 17-10-1963 which was registered on 22-2-1964. The appellant became the owner of the property, the moment full price of the property was paid and the title of the property passed on to him from the day of the confirmation of the sale and the issuance of sale certificate. The High Court, in our view, erred in holding that the issue of ownership was not concluded in the earlier proceedings instituted by the respondents before the Rehabilitation Authorities, the writ petition in the High Court and the appeal in this Court. It also erred in holding that only the question of validity of sale was involved in the earlier proceedings and not of ownership. It failed to appreciate that the valid sale confers both the title and the ownership rights in the purchaser. After the rejection to the challenge to the sale deed up to this Court, the appellant become the owner of the property in dispute and it cannot be said that even though the sale has been upheld the appellant did not become the owner of the property. The view taken by the High Court is against the law laid down by this Court in Bishan Paul v. Mothu Ram1 and also against the fundamental principle of jurisprudence as it is an established fact that a valid sale confirmed by the authorities confers title as well as ownership rights in the purchaser. Valid sale of property and ownership are inseparable and the moment the price is paid and sale is confirmed the purchaser becomes the owner. In Bishan Paul case 1 it was held: (AIR p. 1999, para 16) “16. It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate reproduced in Jaimal case. No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from 3-10-1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale become absolute.” Hon’ble Supreme Court in the case Bishan Paul vs. Mothu Ram AIR 1965 SC 1994 has held that in a auction sale of property, the title to the highest bidder on the property matured after the sale becomes absolute and not when certificate is issued. The present writ petition is squarely covered by the decision of the Apex Court in as much as in the present case on 14.1.1991, 1/3 amount of the auction sale was deposited by the petitioner at the spot. The remaining amount was deposited by the petitioner on