# Hazrat Ali & Ors v. State of U.P. & Ors. 608 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2014) 2 ILRA 607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-07
- **Case number:** Civil Misc. Writ Petition No.20434 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hazrat-ali-ors-v-state-of-u-p-ors-608-indian-law-reports-allahabad-series-42844
- **Pages:** 3

## Headnote

Constitution
of
India,
Art.-226Representation regarding cancellation of
sale
deed-rejected
by
District
Magistrate-with finding sale executed by
Civil Court-in execution of Decree-if any
share of petitioner affected-remedy to
take recourse of order 21 rule 90 of
C.P.C.-writ court can not interfere-helddismissed with liberty to approach under
order 21 rule 90 C.P.C.

Held: Para-9
In this view of the matter, no recourse
can
be
had
for
exercise
of
writ
jurisdiction under Article 226 of the
Constitution. The District Magistrate,
Siddharth Nagar was absolutely justified
in
declining
to
entertain
the
representation filed by the petitioners.
The District Magistrate can exercise
powers which are specifically conferred
upon him by law and he had no
jurisdiction to entertain a representation
in respect of a sale which had taken
place in pursuance of an execution of a
decree passed by the Civil Court in
pursuance of which a registered sale
deed had been executed and possession
had been handed over to the auction
purchaser. Even otherwise, the District
Magistrate
was
not
competent
to
entertain such a request. The remedies
of the petitioner must, therefore, lie
under the provisions of Order XXI Rule
90 as observed earlier. We leave it open
to the petitioners to do so.

## Text

2 All] Hazrat Ali & Ors. Vs. State of U.P. & Ors.
607

14. We are of the considered opinion
that the provisions of Article 309 of the
Constitution of India operate in a separate
field vis-a-vis the conduct of government
business
under
Article
166
of
the
Constitution of India. They are not
overlapping. Therefore, if under the service
rules framed under Article 309 of the
Constitution of India namely the Civil
Services Regulations, 1975, it has been
provided that sanction of the Governor
would be necessary before initiation of the
departmental proceedings with the service of
the charge sheet upon the retired employee
then such sanction has to be that of the
Governor and not of the minister with
reference to the U.P. Secretariat Instructions
1982 framed under the Rules of Business,
1975. We may also record that the U.P.
Secretariat Instructions 1982, Chapter VII
only provide that all business allocated to a
department under the Rules of Business,
1975 is to be disposed of by or under the
General or special directions of the minister
in charge (Reference Business Regulations
3). It is, therefore, clear that only such
business as allocated to the department under
the Rules of Business, 1975 can be disposed
of under the general or special directions of
the minister in charge.

15. Nothing has been demonstrated
before us to lead us to accept that the power
to sanction the departmental proceedings in
respect of a retired government servant has
been allocated as a business to be disposed of
under the general or special directions of the
minister concerned under the Business
Regulations.

16. We have, therefore, no hesitation
to hold that the sanction of the minister
referable to the Business Regulations in
the facts of the case will not amount to the
sanction of the Governor as contemplated
by Regulation 351-A of the Civil Services
Regulations, 1975.

17. So far as the judgment relied
upon by the counsel for the respondent in
the case of State of Orissa (Supra), we
may record that the same is clearly
distinguishable in the facts of the case
specifically with reference to the Rules of
Business, 1975 of the State of U.P.
referred to by us.

18. In absence of sanction of the
Governor, no departmental proceedings can
be initiated against a government servant after
his retirement, the impugned charge-sheet
cannot be legally sustained. Accordingly, the
charge-sheet dated 27.06.2011 is hereby
quashed as also the departmental proceedings
initiated thereto against the petitioner. The
petitioner shall be entitled to all the
consequential benefits with the result of the
quashing of the charge-sheet and the
departmental proceedings. The State is
directed to take appropriate action in that
regard within two months from the date a
certified copy of the order is served upon the
State Government.

19. Writ petition is allowed subject
to the observations/direction made herein
above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.20434 of 2014

Hazrat Ali & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
608 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Bijendra Kumar Mishra, Sri Shravan
Kumar Dubey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226Representation regarding cancellation of
sale
deed-rejected
by
District
Magistrate-with finding sale executed by
Civil Court-in execution of Decree-if any
share of petitioner affected-remedy to
take recourse of order 21 rule 90 of
C.P.C.-writ court can not interfere-helddismissed with liberty to approach under
order 21 rule 90 C.P.C.

Held: Para-9
In this view of the matter, no recourse
can
be
had
for
exercise
of
writ
jurisdiction under Article 226 of the
Constitution. The District Magistrate,
Siddharth Nagar was absolutely justified
in
declining
to
entertain
the
representation filed by the petitioners.
The District Magistrate can exercise
powers which are specifically conferred
upon him by law and he had no
jurisdiction to entertain a representation
in respect of a sale which had taken
place in pursuance of an execution of a
decree passed by the Civil Court in
pursuance of which a registered sale
deed had been executed and possession
had been handed over to the auction
purchaser. Even otherwise, the District
Magistrate
was
not
competent
to
entertain such a request. The remedies
of the petitioner must, therefore, lie
under the provisions of Order XXI Rule
90 as observed earlier. We leave it open
to the petitioners to do so.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The relief which the petitioners seek
is for setting aside the sale deed dated 29
August 2012 by which Gata No.884 ad
measuring 0.9140 hectares of village
Pakarihava,
Tappa-Dhebarua,
pargana
Naugarh,
tehsil
Shohratgarh,
district
Siddharth Nagar has been sold in execution
of a decree. The petitioners seek to question
the legality of an order passed by the District
Collector, Siddharth Nagar declining to
entertain the representation submitted by the
petitioners on the ground that the sale having
taken place in execution of a decree of a
competent Civil Court, the grievance of the
petitioners cannot be entertained.

2. Suit 152 of 1999 was filed against
one Chinka son of Surya by his wife, son
and daughter before the Civil Judge
(Senior Division), Siddharth Nagar for
maintenance. A decree was passed in the
suit on 17 November 2000. In execution
proceedings, the movable property in
question was put to auction on 30 May
2009 at which the fourth respondent was
declared to be a purchaser. The sale was
confirmed by the Executing Court on 26
August 2009 and in pursuance of the
directions of the Court, possession was
handed over to the fourth respondent on
24 May 2011 and a registered deed of sale
was executed on 29 August 2012.

3. The petitioners challenged the
sale on the ground that they had acquired
share in the land in pursuance of a registered
sale deed dated 19 October 2004 and 12
December 2006. In an earlier writ petition
filed by the petitioners, a Division Bench of
this Court, noting that the petitioners had
submitted a representation to the District
Magistrate, Siddharth Nagar, directed that a
decision shall be taken in accordance with
law. In pursuance of the order of the Division
Bench, the District Magistrate, Siddharth
Nagar has rejected the representation of the
petitioners on the ground that the land was
sold in execution of a decree of the Civil
Court in pursuance of which a registered sale
2 All] Irshad Vs. State of U.P. & Ors.
609
deed was executed and possession has been
handed over to the auction purchaser. Hence,
the District Magistrate, Siddharth Nagar has
stated that he had no jurisdiction to entertain
the representation.

4. In a matter as in the present, where
an immovable property has been sold in
execution of a decree passed by the Civil
Court, it would be most inappropriate for the
Court in exercise of its writ jurisdiction under
Article 226 of the Constitution to interfere
when sufficient remedies are provided under
Order XXI Rule 90 of the Code of Civil
Procedure, 1908.

5. Order XXI Rule 90(1) stipulates
that where any immovable property has
been sold in execution of a decree, the
decree holder, or the purchaser, or "any
other person entitled to share in a rateable
distribution of assets, or whose interests
are affected by the sale", may apply to the
Court to set aside the sale on the ground
of a material irregularity or fraud in
publishing or conducting it.

6. Sub-rule (2) of Order XXI Rule 90
stipulates that no sale shall be set aside on the
ground of irregularity or fraud in publishing
or conducting it unless, upon the facts
proved, the Court is satisfied that the
applicant has sustained substantial injury.

7. Order XXI Rule 92(4) stipulates
that where a third party challenges the
judgment-debtor's title by filing a suit
against the auction-purchaser, the decreeholder and the judgment-debtor shall be
necessary parties to the suit.

8. Sufficient remedies are available
under the Code of Civil Procedure, 1908
for applying to set aside an auction sale,
which has been conducted in execution of
a decree including at the behest of a third
party which claims an interest or share in
the property which is affected by the sale.

9. In this view of the matter, no recourse
can be had for exercise of writ jurisdiction
under Article 226 of the Constitution. The
District Magistrate, Siddharth Nagar was
absolutely justified in declining to entertain
the representation filed by the petitioners. The
District Magistrate can exercise powers which
are specifically conferred upon him by law
and he had no jurisdiction to entertain a
representation in respect of a sale which had
taken place in pursuance of an execution of a
decree passed by the Civil Court in pursuance
of which a registered sale deed had been
executed and possession had been handed
over to the auction purchaser. Even otherwise,
the District Magistrate was not competent to
entertain such a request. The remedies of the
petitioner must, therefore, lie under the
provisions of Order XXI Rule 90 as observed
earlier. We leave it open to the petitioners to
do so.

10. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 21415 of 2014

Irshad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilanand Pandey, Sri Suresh Chandra
Varma