Case: Pravesh Kumar Sachdeva Vs. State of Uttar Pradesh and Ors

No. 6 Alok Mitra to act for them and on their behalf, and were also not ratified the act and action taken by said Sri Alok Mitra.4. That the applicants never asked, directed and consented with Sri Alok Mitra opposite party No. 6 not to press or to withdraw the aforesaid objection/application No. 5 of 2004.14. A reading of the aforesaid two paragraphs indicates an inherent self-contradiction. While it is stated in paragraph 3 that the applicants had not given any power of attorney to Alok Mitra to act for them and on their behalf whereas in paragraph 4 they say that they had not asked, directed and consented to the withdrawal of the objections/application filed by Alok Mitra. The inherent contradiction is that if they had not authorized Alok Mitra to file an application, there cannot be any question of their authorizing Alok Mitra to withdraw the application since it was not filed on their behalf. The two paragraphs quoted above confirm that the application/objections of 16th December, 2004 were not filed by the private Respondents.15. Unfortunately, by an order dated 21st November, 2005 the application filed by the private Respondents (other than Alok Mitra) was allowed by the Competent Authority and the confirmation of sale in favour of Sachdeva was set aside. This led Sachdeva to file a writ petition1 in the Allahabad High Court, which came to be dismissed by the impugned judgment and order dated 23rd March, 2006. This resulted in Sachdeva and the vendee, Pawan Kumar Agarwal to prefer the present appeals in this Court.16. As mentioned above, on these facts, the only question for our consideration is whether the High Court was in error in setting aside the confirmed auction sale.17. It is quite clear from the narration of facts that the objections raised to the auction sale were only by Alok Mitra, who did not communicate the objections to the District Magistrate in time. No other objection was raised to the auction sale and it was duly confirmed by the District Magistrate. Alok Mitra later withdrew his objections.18. The other private Respondents contended that even they were parties to the objections filed by Alok Mitra. We cannot agree for the simple reason that the objections were signed only by R.K. Pandey, advocate and the vakalatnama given to him was signed only by Alok Mitra. None of the other private Respondents signed the vakalatnama in favour of R.K. Pandey. On the contrary, when the other private Respondents objected to the withdrawal of the objections by Alok Mitra, they categorically stated that they had not given a power of attorney to Alok Mitra. In that view of the matter, it can hardly lie in the mouth of these private Respondents to contend that the objections filed by Alok Mitra were also filed on their behalf. The private Respondents other than Alok Mitra have come out with an unbelievable story only to somehow or other keep the issue alive through litigation and unfortunately, they have been successful in doing so for the last more than one decade.19. We also find that the conduct of all the private Respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private Respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private Respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private Respondents by the Competent Authority. It appears that the present litigation is being fought by the private Respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private Respondents is a clear indication, if any is required, that they had no objection to the auction sale.20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private Respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private Respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever.21. In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. 1959 Supp (2) SCR 217 it was observed as follows:Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied.22. In Municipal Corporation of Greater Bombay v. Dr Hakimwadi Tenants Association 1988 Supp SCC 55 it was held that"In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case."23. Finally, in P. Dasa Muni Reddy v. P. Appa Rao (1974) 2 SCC 725 this Court held:...Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right......The doctrine which the courts of law will recognise is a Rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts.24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, the High Court was in error in setting aside the auction of the land belonging to the private Respondents (Alok Mitra, Ashok Mitra, Deepak Mitra, Manmohan Mitra and Madhurima Ghosh) and thereby prejudicing the rights of the Appellants17. It is quite clear from the narration of facts that the objections raised to the auction sale were only by Alok Mitra, who did not communicate the objections to the District Magistrate in time. No other objection was raised to the auction sale and it was duly confirmed by the District Magistrate. Alok Mitra later withdrew his objections18. The other private Respondents contended that even they were parties to the objections filed by Alok Mitra. We cannot agree for the simple reason that the objections were signed only by R.K. Pandey, advocate and the vakalatnama given to him was signed only by Alok Mitra. None of the other private Respondents signed the vakalatnama in favour of R.K. Pandey. On the contrary, when the other private Respondents objected to the withdrawal of the objections by Alok Mitra, they categorically stated that they had not given a power of attorney to Alok Mitra. In that view of the matter, it can hardly lie in the mouth of these private Respondents to contend that the objections filed by Alok Mitra were also filed on their behalf. The private Respondents other than Alok Mitra have come out with an unbelievable story only to somehow or other keep the issue alive through litigation and unfortunately, they have been successful in doing so for the last more than one decade19. We also find that the conduct of all the private Respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private Respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private Respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private Respondents by the Competent Authority. It appears that the present litigation is being fought by the private Respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private Respondents is a clear indication, if any is required, that they had no objection to the auction sale20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private Respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private Respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal.