1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R 1. S.B.CIVIL WRIT PETITION NO.4160/2007 (Kulwant Singh & Ors. Vs. State of Raj.& Ors.) 2. S.B.CIVIL WRIT PETITION NO.4760/2007 (Sukhpal Singh Vs. State of Raj. & Ors.) Date of Order : : 12/09/2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.S.L.Jain, for the petitioners-Kulwant Singh & Ors. Mr.Sudheer Sharma, for the petitioner-Sukhpal Singh Mr.O.P.Boob, Addl.Government Counsel for State. Mr.S.S.Purohit, for the respondent-Sri Ganganagar Kshetriya Gramin Bank BY THE COURT: Since both these writ petitions involve common question of law and facts, and arising between the same parties, therefore, with the consent of learned counsel for the parties, both the writ petitions are heard and decided together. The facts stated in the Writ Petition No.4160/2007; Kulwant Singh & Ors. are taken as leading case. 2 The facts and circumstances giving rise to these writ petitions are that writ petitioners Kulwant Singh and others, who are agriculturists by profession, took a loan from the respondent- Sri Ganganagar Kshetriya Gramin Bank, Sadulsahar (for short “the Bank” hereinafter) in the year 1995 for a sum of Rs.1,61,500/- and executed the loan agreement and the petitioners were required to repay the loan amount in installments in accordance with the terms and conditions mentioned in the loan agreement. However, the petitioners failed to repay the loan amount and therefore, the respondent Bank issued a notice demanding the loan amount and interest thereon. Thereafter, the respondents proceeded under the provisions of Rajasthan Agricultural (Removal of Difficulties) Act, 1974 (for short “the Act of 1974”) and the prescribed Authority attached the agricultural land, which was mortgaged by the petitioners while taking the loan from the respondent, vide Annexure-2. The total outstanding amount against the petitioners as intimated by the respondent-Bank was Rs.4,39,576/-. In pursuance of the auction notice, the land of the petitioners was put to auction. Thereafter, the petitioners appeared before the respondent-Bank and deposited a sum of Rs.2,50,000/- on 30.06.2007 and requested the respondent Bank to grant one month's period to repay the outstanding loan amount. However, the proposed 3 auction was not stayed by the respondent-Tehsildar (Revenue), Sangaria and the auction was held on 2.7.2007 vide Annexure-8. The petitioner-Sukhpal Singh was the highest bidder and he deposited one fourth of the bid amount with the Tehsildar (Revenue), Sangaria on 2.7.2007. However, subsequent thereof, the remaining amount was deposited by the auction purchaser Sukhpal Singh on 4.7.2007. The petitioners Kulwant Singh and others approached to the respondent District Collector, Hanumangarh showing their willingness that they are prepared to pay the entire loan amount within a period of one month from the date of auction sale. By order dated 2.8.2007, the respondent-District Collector, Hanumangarh directed the Tehsildar (Revenue), Sangaria to accept the amount of Rs.4,39,576/-, the actual outstanding as intimated by the respondent Bank, and 5% of the bid amount. The bid amount in the instant case was Rs.5,52,000/-. Adding to 5% of the bid amount, which comes to Rs.27,600/-, the petitioner deposited a total amount of Rs.4,67,176/- by receipt No.427072 dated 2nd August, 2007 with the respondent Tehsildar (Revenue), Sangaria. Hence, the petitioners Kulwant Singh and others seek setting aside the auction sale and the petitioner-Sukhpal Singh seeks quashing of the order/letter dated 2nd August, 2007 addressed by the District Collector, Hanumangarh to Tehsildar 4 (Revenue), Sangaria directing him to accept the amount, which the petitioners-Kulwant Singh and others were prepared to pay, as intimated by the Bank with adding of 5% of the bid amount. I have heard learned counsel for the parties. Carefully gone through the material available on record. Mr.Sudheer Sharma, learned counsel appearing for the auction purchaser Sukhpal Singh submit that there is no provision under the Act of 1974 for receiving the amount from the debtor after the property of borrower has been auctioned and the auction purchaser has deposited the amount. Mr.S.S.Purohit, learned counsel appearing for the respondent-Bank submits that so far as the Bank is concerned, the Bank has not received the amount either deposited by the petitioners Kulwant Singh and others or by the auction purchaser Sukhpal Singh, and therefore, the interest of Bank is only to the extent that Bank must get its loan amount, which is lying with the Tehsildar (Revenue), Sangaria. Mr.S.L.Jain, learned counsel appearing for the petitioners-Kulwant Singh and others submits that the order Annexure-10 dated 2nd August, 2007 has been passed by the respondent-District Collector under Section 246 of the Rajasthan Land Revenue Act, 1956 (for short “the Act of 1956” hereinafter), the provisions of setting aside the sale on deposit of 5 the arrear, which provides that any person whose land or other immovable property has been sold under this Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector's office; (a) for payment to the purchaser a sum equal to five per cent of the purchase money; and (b) for payment, on account of the arrear, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, loss any amount which may, since the date of such proclamation of sale, have been paid on that account; and (c) the cost of the sale. If such deposit is made within the thirty days, the Collector shall pass an order setting aside the sale: Provided that, if a person applies under Section 247 to set aside such sale, he shall not be entitled to make an application under this section. Provided also that if the land has been sold free of encumbrances under Section 236, the encumbrances shall be revived as soon as the sale is set aside under this section. In the instant case, the petitioners Kulwant Singh and others seek setting aside the sale on the ground that the petitioners have deposited a sum of Rs.4,67,176/- with the Tehsildar (Revenue) Sangaria inclusive of the outstanding amount intimated by the respondent Bank i.e. Rs.4,39,576/- with addition of 5% of Rs.5,52,000/-, which is the auction sale 6 price. According to learned counsel for the petitioners, the petitioners have fulfilled the requirement of the provisions of Section 246 of the Act of 1956 and, therefore, entitled to set aside the auction sale in favour of Sukhpal Singh. Learned counsel appearing for the auction purchaser Sukhpal Singh submits that auction purchaser is entitled for the interest under the provisions of Section 250 of the Act of 1956. Learned counsel appearing for the petitioners-Kulwant Singh and others submits that the petitioners are prepared to pay the interest to the auction purchaser Sukhpal Singh @ 18% per annum on the amount deposited/paid by the auction purchaser within a period of one month from today and therefore, the auction sale may be set aside. Having regard to the facts as noticed above and also the fact that the possession of the land in question has not been transferred to the auction purchaser and still it is with the receiver Tehsildar (Revenue), Sangaria and the petitioners Kulwant Singh and others, who are the original land owners and have been cultivating the land for last many years and the land being their only source of income, in my view, the auction sale deserves to be set aside. In this view of the matter, the auction sale dated 2nd July, 2007 in favour of auction purchaser Sukhpal Singh as 7 confirmed vide order dated 4th July, 2007 is quashed and set aside provided the petitioners Kulwant Singh and others deposits the interest @ 18% per annum on the sum paid by auction purchaser Sukhpal Singh i.e. 5,52,000/- within one month from today with the Tehsildar (Revenue), Sangaria and the amount which has been deposited by the petitioners Kulwant Singh and others with the Tehsildar (Revenue), Sangaria in pursuance of the order of Collector, Hanumangarh dated 2nd August, 2007 vide receipt No.427072 dated 2nd August, 2007 shall be paid to the respondent-Bank by the Tehsildar, Revenue forthwith. On petitioners depositing the amount of interest aforesaid payable to the auction purchaser Sukhpal Singh, the respondent Tehsildar (Revenue) Sangaria shall hand over the possession of the land to the petitioners Kulwant Singh and others and the amount of interest so deposited by petitioners Kulwant Singh and others be paid to Sukhpal Singh, the petitioner in writ petition No.4760/2007. With these directions, both the writ petitions are disposed of to the extent above. There shall be not order as to costs. Stay petitions also stands disposed of. (H.R. PANWAR), J. NK 8 S.B.CIVIL MISC.STAY APPLICATION NO.3138/2007 IN S.B.CIVIL WRIT PETITION NO.4760/2007 Date of order : : 12/09/2008 HON'BLE MR.H.R.PANWAR,J. Mr.Sudheer Sharma, for the petitioner. Mr.O.P.Boob, Addl.Govt.Counsel. Mr.S.S.Purohit, for the respondent-Bank. Mr.S.L.Jain, for the private respondents. Since the writ petition itself has been disposed of, the stay petition also stands disposed of. (H.R.PANWAR), J. NK