# Atar Singh v. State of U.P. & others

- **Citation:** (2013) 1 ILRA 103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-19
- **Case number:** Civil Misc. Writ Petition No. 52664 of 2004
- **Bench:** Ashok Bhushan, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atar-singh-v-state-of-u-p-others-42401
- **Pages:** 11

## Headnote

C.S.C.
Sri A.K. Rai
Sri Ashok Kumar Srivastava
Sri Rahul Sahai
Sri S. Chaturvedi

U.P.
Zamindari
Abolition
and
Land
Reforms Rule 1952 Rule 279, 284
readwith 282 of Civil Procedure Code,
Section 54-auction sale of land without
Munadi
without
publication-without
valuation of property without taking
resource to procedure-entire proceeding
of auction limited to non observance of
mandatory provision contained in the
rule-auction quashed.

Held: Para-30 and 33

Here in this case, as we have noticed
that the required munadi and required
valuation of the property before holding
auction proceedings have not been done,
as required under the Act and Rules and
these things go to the root of the matter,
therefore, non-observance of that would
vitiate the entire sale proceedings as the
provisions contained under the Act and
Rules relating to the auction of land for
arrears of land revenue are mandatory in
nature and non-observance of the same
would render the proceeding void.

Here in the present case, no munadi /
publication was made, no valuation was
fixed as required under Rule 283 of the
Rules and without taking recourse as
contained in condition nos. (a), (b) and
(c) of section 279 of the Act the land has
been auctioned on the consideration of
Rs. 1,08,000/-, which would go to
establish that a valuable land was
auctioned by the respondents without
taking
recourse
to
procedure
as
contained under the Act and the Rules,
therefore,
the
entire
proceeding
of
auction is vitiated and the same deserves
to be quashed.

## Text

1 All] Atar Singh V. State of U.P. & others
103

11. In the circumstances, the writ
petition deserves to be allowed and is
accordingly allowed. The impugned orders
dated 16.9.2000 and 3.10.2000 are quashed.
The restoration proceedings before the
respondent no.3 on the application dated
14.9.2000 are quashed

12. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 52664 of 2004

Atar Singh

 ...Petitioner
Versus
State of U.P. And others ...Respondents

Counsel for the Petitioner:
Sri Vivek Dubey
Sri A.K. Upadhyay
Sri Kamal Kishore Mishra
Sri Jitendra Kr. Sharma
Sri K.K. Mishra
Sri Vivek Chaubey
Sri Om Vikas Chaudhary
Sri Vinay Dubey

Counsel for the Respondents:
C.S.C.
Sri A.K. Rai
Sri Ashok Kumar Srivastava
Sri Rahul Sahai
Sri S. Chaturvedi

U.P.
Zamindari
Abolition
and
Land
Reforms Rule 1952 Rule 279, 284
readwith 282 of Civil Procedure Code,
Section 54-auction sale of land without
Munadi
without
publication-without
valuation of property without taking
resource to procedure-entire proceeding
of auction limited to non observance of
mandatory provision contained in the
rule-auction quashed.

Held: Para-30 and 33

Here in this case, as we have noticed
that the required munadi and required
valuation of the property before holding
auction proceedings have not been done,
as required under the Act and Rules and
these things go to the root of the matter,
therefore, non-observance of that would
vitiate the entire sale proceedings as the
provisions contained under the Act and
Rules relating to the auction of land for
arrears of land revenue are mandatory in
nature and non-observance of the same
would render the proceeding void.

Here in the present case, no munadi /
publication was made, no valuation was
fixed as required under Rule 283 of the
Rules and without taking recourse as
contained in condition nos. (a), (b) and
(c) of section 279 of the Act the land has
been auctioned on the consideration of
Rs. 1,08,000/-, which would go to
establish that a valuable land was
auctioned by the respondents without
taking
recourse
to
procedure
as
contained under the Act and the Rules,
therefore,
the
entire
proceeding
of
auction is vitiated and the same deserves
to be quashed.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari, quashing the auction proceedings
dated 13.9.2004, auctioning the petitioner's
valuable land measuring about 0.650
hectare for an amount of Rs. 1,08,000/- in
favour of respondent no. 6.

2. Heard Sri Kamal Kishore Mishra,
learned counsel for the petitioner, learned
Standing Counsel and Sri Ashok Kumar
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Srivastava along with Sri Rahul Sahai,
learned counsel for the respondents.

3. The facts giving rise to this case are
that,
it
appears,
the
petitioner
was
sanctioned loan for a sum of Rs. 50,000/- by
respondent no. 5, the State Bank of India, in
February, 2000 under Prime Minister
Rojgar Yojna for running shop of general
merchant. In paragraph no. 3 of the writ
petition, it is stated that the petitioner was
only paid Rs. 25,000/- and remaining Rs.
25,000/- was never given. Since the
petitioner could not pay the loan in due
time, it appears, the bank has issued a
recovery
certificate
on
4.1.2003
for
recovery of Rs. 69,729/- before respondent
no. 2, the Collector, Mathura. In paragraph
No. 6 of the writ petition, it is stated that
without giving any information to the
petitioner and without following the
provisions of auction, i.e., without munadi
and publication, the auction was held and a
bid offered by respondent no. 6 for an
amount of Rs. 1,08000/- was accepted. It is
also stated that the valuation of the land is
more than 5 lakhs and the Gram Pradhan
has also written a letter for cancellation of
the
aforesaid
auction
proceeding
on
31.9.2004.

4. After the aforesaid auction, the
petitioner herein, it appears, has filed an
application before the Collector, Mathura
for depositing the amount of loan in easy
instalments and the Collector thereon has
directed the Naib Tehsildar to accept Rs.
25,000/- and for remaining amount, some
time be granted. Pursuant thereto, the
petitioner has deposited Rs. 25,000/- with
the bank on 11.10.2004.

5. Thereafter, the petitioner has filed
present writ petition on the ground that the
entire proceeding is vitiated on account of
non-observance of the procedure contained
in U.P. Zamindari Abolition and Land
Reforms Act, 1950 (hereinafter referred to
as, 'the Act') and the Rules framed
thereunder for recovery of the government
dues as arrears of land revenue. In the said
writ petition, on 10.12.2004, a Division
Bench of this Court has passed an interim
order for not confirming the auction sale.
However, it appears, the said writ petition
was dismissed for want of prosecution on
17.8.2005 and the then Tehsil authorities
have confirmed the sale after dismissal of
the writ petition in default on 5.10.2005.

6. However, subsequently, the writ
petition was restored to its original number
on 16.11.2005. On 4.4.2007, this Court has
stayed the dispossession of the petitioner
from the land in dispute and also passed an
order that entire action taken by the
respondents on account of the dismissal of
the writ petition in default is illegal.

7. Two counter affidavits and one
supplementary counter affidavit have been
filed; one by the State and remaining two by
respondent No. 6, in favour of whom
auction was confirmed. In the counter
affidavit filed by the State sworn by one Sri
Darshan Singh, Tehsildar, Sadar District
Mathura, it is stated in paragraph no. 3(1)
that there is no record on the file of the
auction proceedings with respect to the
publication of notice in daily newspapers. In
paragraph no. 2 of the same, it is stated that
the Naib Tehsildar, on 15.10.2004, has
submitted a report stating that the highest
bid is of Rs. 1,08,000/-, whereas the
valuation of the land is 3,20,000/-,
therefore, auction be not confirmed.

8. In paragraph no. 4, it is stated that
after dismissal of the writ petition on
17.8.2005, a proceeding for confirmation of
1 All] Atar Singh V. State of U.P. & others
105
sale was initiated and after getting the
reports, the sale was confirmed on
5.10.2005 because of absence of interim
order and possession of the land was given
to respondent no. 6, Smt. Rajesh Devi. It is
also stated that after depositing Rs. 25,000/-
on 4.10.2004, the petitioner has not
deposited any amount.

9. In response to the averments made
in the writ petition, that procedure relating
to the auction of the immovable property,
has not been followed, it is stated in
paragraph no. 9 of the counter affidavit that
there is no paper in the record with respect
to Munadi and publication for auction. It is
stated in paragraph no. 13 of the counter
affidavit that on 2.11.2004, a notice was
sent to the petitioner to deposit the
remaining amount. In paragraph no. 14 of
the counter affidavit, it is stated that citation
was issued, but the petitioner has refused to
accept the same and that was pasted on the
door of the petitioner.

10. A rejoinder affidavit has been filed
in response to the counter affidavit filed by
the State-respondents, in which it is stated
that the procedure contained in the Act and
the Rules relating to auction of the
immovable property has not been followed.
It is also stated that after deposit of Rs.
25,000/-, the petitioner has tried to deposit
the remaining amount, but that was not
accepted. In paragraph no. 8 of the rejoinder
affidavit, it is stated that the petitioner is still
in possession over the land in dispute. It is
reiterated in the rejoinder affidavit that
without there being any advertisement in
newspaper and without fixing the valuation
of the land and without munadi, the auction
was held against the mandatory provisions
contained in the Act. It is also stated in
paragraph no. 17 of the rejoinder affidavit
that for satisfaction of loan of Rs. 69,729/-,
the petitioner's valuable land, worth of Rs. 6
lakhs, has been auctioned for Rs. 1,08,000/-,
but out of that excess amount, not even a
single penny has been paid to the petitioner.

11. Although, the respondent no. 6 has
not filed any counter affidavit in the writ
petition, but he has filed a counter affidavit
in the restoration application, wherein it is
stated that the petitioner has transferred the
land in dispute through registered sale deed
dated 21.4.2009 in favour of one Sri Padam
Singh. A copy of the sale deed has also
been brought on record of the counter
affidavit filed in restoration application,
from the perusal of which, it transpires that
the land in dispute was sold through
registered sale deed on the consideration of
Rs. 5 lakhs in favour of Sri Padam Singh,
on which stamp duty of Rs. 28,150/- has
been paid.

12. Through supplementary affidavit,
the respondent no. 6 has brought on record
the sale deed of the said property executed
in favour of respondent no. 6 on
26.11.2005, for which sale certificate was
issued on 14.11.2005. It is also stated that
the possession of the land was given to
respondent no. 6 on 5.12.2005.

13. On the record of counter affidavit,
an order passed by Sub Divisional
Magistrate, Mathura dated 8.4.2011 passed
in case no. 5 of 2011, in between State Vs.
Rajesh Devi and Others, has been brought
on record, from which it transpires that the
crop of Laha was given in supardgi of third
person, with the direction that after getting it
harvested and selling the same on market
price, deposit the sale proceed in the Court.

14. A rejoinder affidavit, in response
to the counter affidavit filed by respondent
no. 6, has been filed, in which also it is
106 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
reiterated that without following the
procedure contained in the Act and Rules,
the auction proceeding has been concluded.

15. It is contended by Sri Kamal
Kishore Mishra, learned counsel for the
petitioner that the petitioner belongs to
Harizan community and is a very poor
person and after mortgaging the entire land
which he possessed, i.e., 0.650 hectare,
applied for loan of Rs. 50,000/- for opening
a Pertune shop with a view to augment his
income and out of which, only 25,000/- has
been paid and the bank has sent an illegal
recovery certificate to the Collector for
recovering Rs. 69,729/-. Pursuant thereto,
the petitioner's land was auctioned for an
amount of Rs. 1,08,000/-, whereas the
valuation of the land was more than Rs. 5
lakhs. In his submissions, the relative of
respondent no. 6 was collection amin in the
Tehsil and he has manipulated the entire
auction
proceedings.
He
has
further
contended that there is a complete
mechanism for auction of immovable
property, i.e., land given in the Act and the
provisions contained therein are mandatory
in character, therefore, without taking
recourse of the same, if any auction was
held, that cannot be sustained in the eye of
law. In his submissions, the respondents
have not been able to deny the petitioner's
specific stand with regard to the holding of
auction without there being any munadi and
publication, therefore, the same deserves to
be quashed.

16. Refuting the submissions of
learned counsel for the petitioner, learned
Standing Counsel as well as Sri Ashok
Kumar Srivastava along with Sri Rahul
Sahaiand respondent no. 6 have submitted
that the auction proceeding was conducted
in accordance with law and in the event of
failure of petitioner in depositing the
amount contained in the citation, the auction
was confirmed on 5.10.2005. In their
submissions, ample opportunity was given
to the petitioner to satisfy the loan even after
the auction, which took place on 13.9.2004
and thereafter, on 11.10.2004. Petitioner has
only deposited Rs. 25, 000/- and thereafter,
he did not deposit any amount and on
failure, there was no escape, except to
auction the mortgaged land.

17. We have heard learned counsel for
the parties and perused the record.

18. For resolving the controversy in
hand, it would be in benefit to peruse the
provisions in the Act, the Rules framed
there under in the year 1952 known as U.P.
Zamindari Abolition and Land Reforms
Rules, 1952 (hereinafter referred to as, 'the
Rules') and the relevant provisions of the
Code of Civil Procedure, 1908, which read
as under:

Relevant provisions of the Act.

"279. Procedure for recovery of an
arrear of land revenue,-(1) An arrear of
land revenue may be recovered by any one
or more of the following processes - (a) by
serving a writ of demand or a citation to
appear on any defaulter, (b) by arrest and
detention of his person, (c) by attachment
and sale of his movable property including
produce. (d) by attachment of the holding in
respect of which the arrears is due, (e) (by
lease or sale) of the holding in respect of
which the arrear is due", (f) by attachment
and sale of other immovable property of
the defaulter, (and) (g) by appointing a
receiver of any property, movable or
immovable of the defaulter. (2) The costs of
any of the processes mentioned in subsection (I) shall be added to and be
1 All] Atar Singh V. State of U.P. & others
107
recoverable in the same manner as the
arrears of land revenue."

19. Section 280 of the Act deals with
writ of demand and citation to appear.
According which, as soon as an arrear of
land revenue has become due, a writ of
demand may be issued by the tahsildar on
the defaulter calling upon him to pay the
amount within a time to be specified. Sub
section (2) of section 280 of the Act
provides that in addition to or in lieu of a
writ of demand, the tahsildar may issue a
citation against the defaulter to appear and
deposit the arrears due on a date to be
specified. Further, section 281 provides
penal provision for the defaulter, according
to which, on failure to deposit the land
revenue, the person may be arrested and
detained in custody upto a period not
exceeding 15 days. This section also
provides that no woman or minor shall be
liable to arrest or detention. Section 282 of
the Act deals with attachment and sale of
movable property.

20. The corresponding rules in this
regard, have been made under U.P.
Zamindari Abolition and Land Reforms
Rules, 1952 (hereinafter referred to as 'the
Rules'). The relevant rules, relating thereto,
are reproduced hereinunder:

Relevant provisions of the Rules.

"273. Where any land is attached in
pursuance of the provisions of clause (d) or
(f) of Section 279 or sub-section (1) of
Section 284 or of Section 280 or is let out
under sub-section (2) of section 284, a
proclamation in Z.A. Form 78, shall be
affixed at a conspicuous place in the
village in which the land is situate, and it
shall also be notified by beat of drum.

273-A. The attachment of holding or
other immovable property under clause (d)
or (f) of section 279 or under section 284 or
section 286, shall be effected in the manner
prescribed in Order XXI, Rule 54 of the
Code of Civil Procedure, 1908 and the
order to the defaulter shall be issued in Z.A.
Form 73-D.

274. [* * *]

275. [* * *]

276. [* * *]

277. [* * *]

278. As soon as may be, after the
holding is attached under sub-section (1) of
section 284, the Collector shall proceed to
let out the holding to any person other than
the defaulter, whom he thinks fit, and who
pays the whole of the arrears due on the
holding before a lease is given to him in
respect of that holding.

279. The lease given by the Collector
under section 284 shall be in Z.A. Form 73C.

280. [* * *]

280-A. When a lease is made under
section 284, the Collector shall issue orders
for the necessary mutation of names to be
made in the registers. No fee shall be levied
in respect of any such mutation.

281. Section 284. - (1) Recourse can
only be had to the sale of the holding
under section 284 when the process
specified in clause (a), (b), ( c) or (d) of
section 279 would be insufficient for the
recovery of the arrear.
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(2) Process for sale of holding under
section 284 and of other immovable
property under section 286 shall be issued
by the Collector.

(2-A) In the case of sale of a holding
the Collector shall auction the holding in
lots of 1.26 hectares 3.125 (acres) to 5.04
hectares (12.50 acres) after working out
and announcing the land revenue and the
estimated value of each lot.

It should also be made clear that only
those persons would bid in the auction,
acquisition of land by whom would not
contravene the provisions of section 154.

(3) [* * *]

282. The proclamation of sale shall be
in Z.A. Form 74.

283. In proclamation for sale under
section 286, the Collector shall state the
amount of the annual demand and the
estimated value of the property calculated
in accordance with the rules in Chapter
XV of the Revenue Manual.

284. (1) When the land is put up for
sale a charge shall be levied on account of
the costs of every sale, upon such amount
not exceeding the total sum due for recovery
as may be realised by the sale at the
following rates:

(i ) Where such amount does not
exceed 200 rupees at the rate of one rupee
for every 100 rupees or portion of 100
rupees;

(ii)Where such amount exceeds 200
rupees but does not exceed 1,000 rupees, 2
rupees for the first 200 rupees and at the
rate of 150 naye paise for every 100 rupees
or portion of 100 rupees, in excess of 200
rupees;

(iii) Where such amount exceeds 1,000
rupees, six rupees for the first 1,000 rupees
and at the rate of one rupee for every 500
rupees or portion of 500 rupees in excess of
1,000 rupees.

(2 ) When immovable property other
than the land is put up for sale, a charge
shall be levied upon such amount not
exceeding the total sum due for recovery as
may be realized by the sale at the rate of
three naye paise per rupee of the sale
proceeds, fractions of a rupee being
excluded.

( 3) When the sale officer goes to any
place to conduct a sale and no sale takes
place, a charge shall be levied to meet the
cost of his deputation according to the
following scale: Rs. P.

(i ) When the amount for recovery does
not exceed Rs. 100. 1 50

(ii) When such amount exceeds Rs. 100
but does not exceed Rs. 1, 000. 3 00

(iii) When such amount exceeds Rs.
1,000. 6 00

285. Whenever any house or other
building situated within the limits of a
military cantonment or station is sold, the
Collector shall as soon as the sale has been
confirmed, forward to the Commanding
Officer of such cantonment or station for his
information, or for record in the brigade or
other proper office, a written notice that
such sale has taken place, and such notice
shall contain full particulars of the property
sold and of the name and address of the
purchaser."
1 All] Atar Singh V. State of U.P. & others
109
Relevant provisions of the Code of Civil
Procedure,1908

"54.
Attachment
of
immovable
property. (1) Where the property is
immovable, the attachment shall be made
by an order prohibiting the judgmentdebtor from transferring or charging the
property in any way, and all persons from
taken any benefit from such transfer or
charge.

(1-A) The order shall also require the
judgment-debtor to attend Court on a
specified date to take notice of the date to be
fixed for settling the terms of the
proclamation of sale.

(2) The order shall be proclaimed at some
place on or adjacent to such property by
beat of drum or other customary mode, and
a copy of the order shall be affixed on a
conspicuous part of the property and then
upon a conspicuous part of the Courthouse, and also, when the property is land
paying revenue to the Government, in the
office of the Collector of the district in
which the land is situate and, where the
property is land situate in a village, also in
the office of Gram Panchayat, if any, having
jurisdiction over that village."

21. From going through the record of
the writ petition, counter affidavits and
rejoinder affidavits, following undisputed
facts would appear:

(1) There was no publication in any
newspaper with respect to the auction in
question.

(2) No valuation was fixed of the land
auctioned prior to holding of auction.

(3) Ignoring the report of Naib
Tehsildar dated 15.10.2004 for cancelling
the sale, the sale has been confirmed.

22. When the writ petition was filed
on 10.12.2004, an order was passed
restraining the respondents from confirming
the sale in question. The writ petition was
dismissed in default on 17.8.2005 and
restored on 16.11.2005. The sale was
confirmed on 5.10.2005.

23. For appreciating the controversy,
it would be necessary to peruse the contents
of paragraph 6 of the writ petition and its
reply given in paragraph 9 of the counter
affidavit filed by the State - respondents,
where the averments have been made for
non-publication of notice and munadi
before proceeding with the auction, which
are reproduced hereinunder:

Paragraph No. 6 of the Writ
Petition:

"That the land mortgaged has been
auctioned in favour of the Respondent no. 6
without giving any information to the
petitioner
and
without
following
the
provisions of the auction of the land. It is
also stated that no munadi was made in the
village and there was no publication for the
auction and the auction was held in favour
of the Respondent no. 6 in collusion with
Bhawar Singh, who is the husband of the
Respondent no. 6 in as much as the auction
has been held at low price where as the
valuation of the land is more than 5 lakh.
The Gram Pradhan of the village has
requested for cancellation of the auction by
letter dated 21.9.2004. A true copy of the
letter dated 21.9.2004 is being filed
herewith and marked as Annexure no. 3 to
this writ petition."
110 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

24. The reply of paragraph no. 6 of the
writ petition has been given in paragraph 9
of the counter affidavit filed by the State, in
which following averments have been
made:

"9- ;g fd ;kfpdk ds izLrj 6 esa of.kZr dFku
ftl izdkj mfYyf[kr fd;k x;k og xyr gS vkSj
Lohdkj ugh gSA bl en esa rRdkyhu vf/kdkfj;ksa }kjk
fof/kor uhykeh fnukad 13-09-2004 fd;k tkuk Lohdkj
gS QnZ uhykeh dh Nk;k izfr bl izfr'kiFki= ds lkFk
layXud lh0,0 &3 ds :i esa layXu dh tk jgh ;g
xyr fy[kk gS fd uhykeh esa dfFkr rkSj ij tehu dh
uhykeh laca/kh izkfo/kkuksa dk vuqlj.k ugh fd;k x;k
gksA equknh o izdk'ku foHkkxh; i=koyh esa miyC/k ugh
gS ysfdu ;kph dks lwfpr fd;k lwpuk i= fnukad 123-2004 dh Nk;k izfr layXud lh0,0 &4 ds :i esa
layXu dh tk jgh gSA tgkW rd rRdkyhu xzke iz/kku
}kjk i= fnukad 21-09-2004 izLrqr fd;s tkus dk iz'u
gS] ,slk dksbZ i= foHkkxh; i=koyh esa izkIr gksuk ugh
ik;k tkrkA "

25. From the perusal of the reply
given by the State - respondents, it would
appear that the respondents have not come
with the clear case that the munadi and
publication was made prior to holding the
auction. However, what they state is that the
record of the munadi and publication is not
available on record. There is no denial with
respect to the valuation of the land in
dispute, which according to the averments
made in paragraph no. 6, was five lakhs.

26. Rule 273 A of the Rules provides
that the attachment of holding or other
immovable poperty under clause (d) or (f)
of section 279 or under section 284 or
section 286, shall be effected in the manner
prescribed in Order XXI, Rule 54 of the
Code of Civil Procedure, 1908 and the order
to the defaulter shall be issued in Z.A. Form
73-D. Sub rule (1A) of Rule 54, Order XXI
of Civil Procedure Code, 1908 provides that
the order shall also require the judgmentdebtor to attend Court on a specified date to
take notice of the date to be fixed for
settling the terms of the proclamation of
sale. The sub-rule (2) of the aforesaid Rule
provides that the order shall be proclaimed
at some place on or adjacent to such
property by beat of drum or other
customary mode, and a copy of the order
shall be affixed on a conspicuous part of the
property and then upon a conspicuous part
of the Court-house, and also, when the
property is land paying revenue to the
Government, in the office of the Collector
of the district in which the land is situate
and, where the property is land situate in a
village, also in the office of Gram
Panchayat, if any, having jurisdiction over
that village. Rule 273 of the Rules also
provides almost the same thing.

27. In view of sub-rule (1A) of Rule
54, Order XXI of Civil Procedure Code,
1908, it is incumbent upon the authority
holding auction and taking recourse of sale
of the land to fix a date for settling the terms
of proclamation for sale. Under section 283
of the Act, the Collector shall state the
amount of the annual demand and the
estimated value of the property calculated in
accordance with the rules in Chapter XV of
the
Revenue
Manual.
The
State
-
respondent has filed counter affidavit. In the
counter affidavit, it has no where been
stated that the estimated value of land was
calculated in accordance with the Rules and
was made known to all before holding the
auction. The factum of non-publication of
notice and munadi has also not been denied.
It may also be noticed that the petitioner
himself has sold the land through registered
sale deed on the consideration of Rs. 5
lakhs, which, it appears, has latter on been
cancelled. The requirement under the Rules
for munadi before holding an auction and
fixation of the value of the land is the
condition precedent and if any auction is
1 All] Atar Singh V. State of U.P. & others
111
held, contravening the statutory provisions
of the Rules, that cannot be sustained in the
eye of law.

28. The matter may be examined from
another angle also. In view of Rule 281 of
the Rules read with section 284 of the Act,
it would transpire that recourse can only be
had to the sale of holding under section 284
of the Act, when the process specified in
Clauses (a), (b), ( c) and (d) of section 279
of the Act would be insufficient for the
recovery of the arrears.

29. Here, from the perusal of the
pleadings of the parties, available on record,
it transpires that so far as the condition no.
(a) of section 279 of the Act is concerned,
the service of writ of demand or a citation
has been denied. So far as the condition no.
(b) is concerned,i.e., the arrest and
detention, that is also absent here in this
case. So far as the condition no. (c) is
concerned, there is no such averment in the
counter affidavit that recourse to condition
no. (c) has been taken, whereas Rule 281 of
the Rules provides that recourse of sale
under section 284 can only be taken if the
process of Clause (a), (b) and (c) of section
279 would be insufficient. The imposing of
these conditions are purposive as the effect
of taking recourse of auction of immovable
property, i.e., the agricultural land, would
mean the deprivation of a person from the
land in question for every time, which will
not only affect the person concerned, but it
will deprive the persons of coming
generations. The agricultural land of an
agriculturist is the source of their livelihood,
therefore, that cannot be taken casually
without strict adherence to the provisions
contained under the Act and Rules for
taking recourse of the sale of the immovable
property, i.e., the agricultural land.

Besides that, where a Statute requires
to do certain thing in a particular method,
then that thing must be done in that very
method and other methods or mode of
performance are impliedly and necessarily
forbidden. The aforesaid legal proposition is
based on a legal maxim " Expressio unius
est exclusio alterius", meaning thereby that
'if a Statute provides for a thing to be done
in a particular manner, then it has to be done
in that very manner and other manner and
procedure is ordinarily not permissible'.
(Vide Taylor Vs. Taylor, (1876) 1 Ch.D.
426; Nazir Ahmed Vs. King Emperor, AIR
1936 PC 253; Deep Chand Vs. State of
Rajasthan, AIR 1961 SC 1527; Haresh
Dayaram
Thakur
Vs.
State
of
Maharashtra & Ors., (2000) 6 SCC 179;
Dhanajaya Reddy Vs. State of Karnataka
etc. etc., (2001) 4 SCC 9; Commissioner of
Income Tax, Mumbai Vs. Anjum M.H.
Ghaswala & Ors., (2002) 1 SCC 633).

It is also well settled that if any thing
has not been done in the manner provided
for under the Statute and the Statute has
provided
a
consequence
for
nonperformance of such act as provided for,
then those provisions are mandatory and not
directory. While determining whether a
provision is mandatory or directory, in
addition to the language used therein, the
Court has to examine the context in which
the provision is used and the purpose behind
it to achieve. It may also be necessary to
find out the intention of the legislature for
enacting it and the serious and general
inconveniences or injustice to persons
relating thereto from its application.

30. Here in this case, as we have
noticed that the required munadi and
required valuation of the property before
holding auction proceedings have not been
done, as required under the Act and Rules
112 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
and these things go to the root of the matter,
therefore, non-observance of that would
vitiate the entire sale proceedings as the
provisions contained under the Act and
Rules relating to the auction of land for
arrears of land revenue are mandatory in
nature and non-observance of the same
would render the proceeding void.

31. In the case of Union Bank of
India Vs. Official Liquidator, 2000 (5)
SCC 274, the apex Court has observed as
under:

"In auction-sale of the property of the
company which is ordered to be wound up,
the Company Court acts as a custodian for
the interest of the company and its
creditors. It is the duty of the Company
Court to satisfy itself as to reasonableness
of price by disclosing valuation report to
secured creditors of the company and other
interested persons. It was further held that
the Court should exercise judicial discretion
to ensure that sale of property should fetch
adequate price. For deciding what would be
reasonable price, valuation report of an
expert is essential. The Company Judge
himself must apply his mind to the valuation
report. The Court observed that the High
Court did not interfere with the auction-sale
on the ground of sympathy for the workers
which was not proper. The auction-sale
was, therefore, set aside by this Court and
the Official Liquidator was directed to
resell the property after obtaining fresh
valuation report and after furnishing copy
of such report to secured creditors."

32.

In
Divya
Manufacturing
Company (P) Ltd. and Another Vs. Union
of India and Others AIR 2000 SC 2346,
the apex Court held that in appropriate
cases, even the confirmed sale can be set
aside. In Gajraj Jain Vs. State of Bihar and
Others (2004) 7 SCC 151, the apex Court
held that in absence of valuation report and
reserve price, the auction sale becomes only
a pretence and if there is no proper
mechanism and if the intending purchasers
are not able to know the details of the assets
or itemised valuation, the auction-sale
cannot be said to be in accordance with law.
If publicity and maximum participation is to
be attained, all bidders must know the
details of the assets and the valuation
thereof. In S.J.S. Business Enterprises (P)
Ltd. Vs. State of Bihar 2004 (7) SCC 166,
the apex Court held that it is the duty of the
authority conducting the sale to ensure the
maximum participation of the bidders in
turn requires that a fair and practical period
of time must be given to purchasers to
effectively participate in the sale. Unless the
subject matter of sale is of such a nature
which requires immediate disposal, an
opportunity must be given to possible
purchaser who is required to purchase the
property on 'as-is-where-is basis' to inspect
it and to give a considered offer with the
necessary financial support to deposit the
earnest money and pay the offered amount,
if required. It has also laid emphasis that the
proper valuation has to be fixed and the
bidder has to be noticed in adequate manner
with a view to require their maximum
participation.

33. Here in the present case, no
munadi / publication was made, no
valuation was fixed as required under Rule
283 of the Rules and without taking
recourse as contained in condition nos. (a),
(b) and (c) of section 279 of the Act the land
has been auctioned on the consideration of
Rs. 1,08,000/-, which would go to establish
that a valuable land was auctioned by the
respondents without taking recourse to
procedure as contained under the Act and
the Rules, therefore, the entire proceeding
1 All] Dilip Kumar Singh and another V. State of U.P. & others
113
of auction is vitiated and the same deserves
to be quashed.

34. In the result, the writ petition
succeeds and is allowed. The entire
proceedings of recovery is hereby quashed.

35. The respondent no. 6 shall be
entitled to the refund of the auctioned
amount alongwith 9% interest, which is to
be borne out by the petitioner and be paid
within a period of one month from today.
However, the petitioner shall also be
entitled to get back the excess amount after
satisfying the loan out of the auctioned
money, if any.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 58329 of 2012

Dilip Kumar Singh and another

 ...Petitioner
Versus
State of U.P. Thru Secy.and others

 ...Respondents

Counsel for the Petitioner:
Sri Deepak Kumar Jaiswal
Sri Sanjay Kumar Gupta

Counsel for the Respondents:
C.S.C.
Sri P.N. Tripathi
Sri Tarun Verma
Sri Vikram D. Chauhan

Securitization
and
Reconstruction
of
Financial
Assets
and
Enforcement
Security Interest Act, 2002-Section 14Application before District Magistrate by
secured crediting-whether maintainable
even after execution of sale deed in
favour
of
auction
purchaser
and
pendency of application under Section 17
before the Tribunal-held-"Yes".

Held: Para-16 and 24

In view of the aforesaid discussions, the
Issue No.1 is decided holding that
secured creditor is legally entitled to
take physical possession even after
execution of sale deed in favour of
auction purchaser and the application
under Section 14 of the 2002 Act by the
Bank before the District Magistrate was
fully maintainable. The Issue No.1 and 2
are answered accordingly.

In view of the aforesaid discussions, we
are of the view that by mere filing an
application under Section 17 of the 2002
Act, there is no embargo on the Bank
from proceeding under the 2002 Act.
Case Law discussed:
A.I.R. 2010 Madras 24; (1921) 41 MLJ 297;
(1923) 45 MLJ 431; AIR 2006 P H 211

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Deepak Kumar Jaiswal
learned counsel for the petitioners, Sri
Tarun Verma appearing for the Allahabad
Bank and learned Standing Counsel for the
State-respondents.

2. By this writ petition, the petitioners
have prayed for quashing the order dated
3rd August, 2012 passed by the District
Magistrate, Mirzapur under Section 14 of
the Securitisation and Reconstruction of
Financial Assets and Enforcement of
Security Interest Act, 2002 directing for
providing police help for taking possession
of the mortgaged assets. A writ of
mandamus
has
also
been
sought
commanding the respondents No.2 to 5 not
to dispossess the petitioners from their
residential house situate at Plot No.78/1,
Bhajan Ka Pura, Mirzapur.