# India Casting & Krishi Udyog v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005
- **Case number:** Civil Misc. Writ Petition No. 1633 of 2005
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/india-casting-krishi-udyog-v-state-of-u-p-and-others-40576
- **Pages:** 6

## Headnote

Sri K.M. Tripathi
Sri Pankaj Mithal
Sri S.K. Mishra
S.C.
Sri W.H. Khan

U.P.Z.A.
&
L.R.
Rules-Rule-285-Iobjection against the sale of movable
property-can
not
be
filed-but
the
question-about the Plant and Machinerythe subject matter of auction sale is
movable or immovable property-required
to be decided by the commission.

Held: Para 8

In view of the aforesaid Division Bench
decisions, which are of binding effect
and of higher authority than the Single
Judge decision in Bharat Singh's case
and also because attention of the court
was not drawn to Section 282 of the
U.P.Z.A. & L.R. Act in Bharat Singh's case
the decision in that case is per incuriam.
In view of what has been stated above I
am of the view that no objection against
the sale of movable property can be filed
within the scope of Rule 285-I of the
U.P. Z.A. & L.R. Rules. The question as to
whether the property in dispute is
movable property has to be decided by
the Commissioner.
Case law discussed:
1997 J.T. (10)-82
2005 (98) 203
1991 R.D. 250

## Text

1168 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
is not entitled for appointment on a
teaching post in a minority institution, he
may very well can be considered for
appointment on teaching post in other
non-minority institution. Right of a
dependent of deceased employee flow
from service conditions to which the
deceased was governed. The dependent of
deceased
employee
of
a
minority
institution is entitled for the benefit which
flow from service conditions of the
employee from whom he is claiming
right. As held above, the dependent of
deceased employee of the minority
institution is not entitled for appointment
on teaching post, hence his claim for
appointment on teaching post in nonminority institution can also not be
considered. The alternative submission
raised by the counsel for the petitioner
can also not be accepted.

25. In view of forgoing discussions
the petitioner has not made out any case
for issuing writ of mandamus for
appointment on teaching post. In the
counter affidavit the respondent has
referred to a class IV appointment offered
to the petitioner on 14.10.1994. Reference
of said appointment is made in the letter
dated 12.8.1997 of the District Inspector
of Schools to the State Government filed
as Annexure-16 to the writ petition. From
perusal of the said letter it appears that a
letter dated 14.10.1994 was written by the
District Inspector of Schools proposing
appointment of the petitioner on Class IV
post against the supernumerary post and
the Principal was directed to permit the
joining of the petitioner. The petitioner
has categorically denied receiving of such
information or letter. The copy of the said
letter dated 14.10.1994 has also not been
brought on record nor there is any
material brought by the respondent to
show that the petitioner was ever
communicated any such appointment. The
petitioner
has
categorically
denied
receiving
of
any
appointment
or
information. In this view of matter the
claim of the respondent that the petitioner
was offered Class IV appointment on
14.10.1994, cannot be accepted. In view
of the Division Bench judgement in the
case of The Governing Body of the
registered Society designated as St.
Andrew's
College
Association,
Gorakhpur and another Versus State
of U.P. and others (supra) the dependent
of deceased employee of a minority
institution is entitled for consideration for
appointment on a non teaching post. The
claim of the petitioner for appointment
against the non teaching post requires
consideration
by
the
respondents.
Consequently, the respondent no. 4 is
directed to consider the claim of the
petitioner for compassionate appointment
against non teaching post as dependent of
deceased
employee
expeditiously
preferably within a period of three months
from the date of production of a certified
copy of this order.

The writ petition is disposed of
accordingly. Parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2005

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 1633 of 2005

India Casting & Krishi Udyog ...Petitioner
Versus
State of U.P. and others ...Respondents
4 All] India Casting & Krishi Udyog V. State of U.P. and others
1169
Counsel for the Petitioner:
Sri A.K. Rai
Sri S.N. Singh

Counsel for the Respondents:
Sri K.M. Tripathi
Sri Pankaj Mithal
Sri S.K. Mishra
S.C.
Sri W.H. Khan

U.P.Z.A.
&
L.R.
Rules-Rule-285-Iobjection against the sale of movable
property-can
not
be
filed-but
the
question-about the Plant and Machinerythe subject matter of auction sale is
movable or immovable property-required
to be decided by the commission.

Held: Para 8

In view of the aforesaid Division Bench
decisions, which are of binding effect
and of higher authority than the Single
Judge decision in Bharat Singh's case
and also because attention of the court
was not drawn to Section 282 of the
U.P.Z.A. & L.R. Act in Bharat Singh's case
the decision in that case is per incuriam.
In view of what has been stated above I
am of the view that no objection against
the sale of movable property can be filed
within the scope of Rule 285-I of the
U.P. Z.A. & L.R. Rules. The question as to
whether the property in dispute is
movable property has to be decided by
the Commissioner.
Case law discussed:
1997 J.T. (10)-82
2005 (98) 203
1991 R.D. 250

(Delivered by Hon'ble Janardan Sahai, J.)

1. There were certain electricity
dues against respondent no.5 M/s S.K.
Glass works. The dues were recovered as
arrears of land revenue. Certain plant and
machinery of S.K. Glass were brought to
sale in an auction held on 29.5.2004. The
petitioner India Casting & Krishi Udyog
was the purchaser. The auction sale was
confirmed on 23.6.2004. It appears that
objections under Rule 285-I of the U.P.
Z.A. & L. R. Rules were filed by the
respondent M/s. S.K. Glass Works on
13.8.2004. The objections were allowed
by the Commissioner, Varanasi Division
by his impugned order dated 16.10.2004.
The auction sale was set aside and it was
directed that fresh auction sale be held.
The Commissioner held that there was
material irregularity in the publication and
sale. He found that 30 days clear notice
between the dates of the proclamation of
sale and the sale itself was not given. This
constitutes breach of Rule 285-A of the
U.P.Z.A. & L.R. Rules. It was also found
that the sale proclamation was published
in an evening newspaper "Kashi Varta",
which has scant circulation and that the
valuation of the property was made by the
P.W.D., which is not authorized to value
plant and machinery. It was also found
that the sale price was reduced on account
of arbitrary fixation of the price of a
portion of the machinery released from
the sale. Further the properties were
mortgaged with the Canara Bank and no
notice had been given to it.

2. I have heard Sri S.N. Singh on
behalf of the petitioner and Sri Pankaj
Mittal on behalf of respondent no.5 and
the learned Standing Counsel on behalf of
respondents 1 to 4.

3. It appears that before the
Commissioner an objection was raised by
the petitioner auction purchaser that the
objections under Rule 285-I of the U.P.Z.
A. & L.R. Rules were not maintainable as
the properties were moveable properties.
The Commissioner has referred to this
objection in his order but no finding has
1170 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
been given in this regard. The other
submission raised by the petitioner's
counsel is that the order passed by the
Commissioner is an ex parte order and no
opportunity was given to the petitioner.
Learned counsel for the petitioner placed
before me the release certificate dated
24.6.2004 issued by the Tehsildar in
which reference is made to the property
sold, which are described as moveable
property. In the letter of the Tehsildar
dated 1.7.2004 reference is made to an
earlier letter dated 29.6.2004 directing
that the moveable property be not
removed. Reliance is also placed upon
the admission made by the respondent
no.5 in paragraph 4 of the counter
affidavit in which it is stated that movable
property, plant and machinery were
attached on 29.12.2003. In paragraph 30
of the counter affidavit the property has
been described as plant and machinery.
On this basis it is submitted by Sri S.N.
Singh that there was ample material on
the record to indicate that the properties,
which were the subject matter of sale
were moveable property. On the other
hand it is submitted by Sri Pankaj Mittal,
learned counsel for the respondent that the
plant and machinery were embedded in
the earth and was therefore immovable
property. He relied upon the averments
made in paragraph 4 of the application
filed on 11.4.2005 a portion of which is
quoted below;

"The plant and machinery was
installed on a concrete platform and was
fixing to the earth by means of steel nuts
and bolts, which were embedded to the
earth about 8'-10' deep."

4. The reply to this paragraph has
been given in the rejoinder affidavit in
paragraph 5 that it is moveable property,
which was sold. The question as to
whether the plant and machinery can be
treated as immovable property was
considered by the Apex Court in 1997
J.T. Vol. 10 page 82 Star Paper Mills Ltd.
Vs. The Collector of Central Excise. It
was held; "Apart from this finding of fact
made by the Tribunal, the point advanced
on behalf of the appellant, that whatever
is embedded in earth must be treated as
immovable property is basically not
sound. For example, a factory owner or a
householder may purchase a water pump
and fix it on a cement base for operational
efficiency and also for security. That will
not make the water pump an item of
immovable
property.
Some
of
the
components of water pump may even be
assembled on site. That too will not make
any difference to the principle. The test is
whether the papermaking machine can be
sold in the market. The Tribunal has
found as a fact that it can be sold. In view
of that finding, we are unable to uphold
the contention of the appellant that the
machine must be treated as a part of the
immovable property of the company just
because a plant and machinery are fixed
in the earth for better functioning, it does
not automatically become an immovable
property."

5. The issue as to whether the
properties were movable or immovable is
a mixed issue of law and fact and in a writ
petition it is not appropriate to decide it in
the first instance as facts are involved.
The Commissioner who is vested with the
jurisdiction of deciding an objection
under Rule 285-I is competent to go into
this question to determine whether the
objections are maintainable.

6. It was however submitted by Sri
Pankaj Mittal that even if the properties
4 All] India Casting & Krishi Udyog V. State of U.P. and others
1171
are treated as movable properties Rule
285-I is still applicable. He relied upon
the decision of this Court in 2005 (98)
R.D.203 (Bharat Singh Vs. State of U.P.
and others). In that case it was held that
objections under Rule 285-I can be filed
even in respect of movable property. This
decision would ordinarily bind me.
However, it appears that certain decisions
of higher authority of Division Benches of
this Court as well as certain provisions of
the Statute were not brought to the notice
of the Court in Bharat Singh's case.
Before referring to the Division Bench
decisions on the point I will refer to the
statutory provisions governing the point.
Section 282 of the U.P.Z.A. & L.R. Act
provides that the procedure for the sale
and attachment of moveable property
shall be the same as that in execution of a
decree under the Civil Procedure Code.
The U.P.Z.A. & L.R. Rules also contain
certain provisions relating to attachment
and sale of movable properties. These
rules find place under the heading of
attachment and sale of movable property
and begin from Rule 254 and continue
upto Rule 271. To the extent to which
direct provision has been made under the
U.P.Z.A.& L.R. Rules the rules would
prevail. However, recourse to the civil
procedure code in respect of matters on
which the U.P.Z.A. & L.R. Rules are
silent has to be made. This follows not
only from the provisions of Section 282
of the U.P.Z.A. & L.R. Act but also in
view of the provisions of Section 341 of
the U.P. Z.A. & L.R. Act, which makes
applicable to the proceedings under the U.
P. Z. A. & L.R. Act the provisions of the
civil procedure code. There is a clear
bifurcation under the C.P.C. between the
procedure for the sale of movable
property and for the redressal of grievance
in respect of them on the one hand and for
the sale of immovable property on the
other hand. Although under the civil
procedure
code
objections
to
the
attachment of moveable property can be
filed under Order 21 Rule 58 Civil
Procedure Code but there is no provision
under which the sale of movable property
can be challenged on the ground of
material irregularity in the publication or
sale. This would be clear from Order 21
Rule 78-A of the Civil Procedure Code,
which in terms provides that no sale shall
be set aside on the ground of irregularity
in the publication but the remedy of the
person
aggrieved
is
to
obtain
compensation. Under Order 21 Rule 77
the sale of movables becomes absolute on
payment of the purchase money. Sale of
immovable property can however be set
aside under the provisions in Order 21
Rule 90 C.P.C. on ground of material
irregularity or fraud in the publication or
conducting of the sale. A sale of
immovable property can also beset aside
under Order21 Rule 89 C.P.C. on
payment of the purchase price and certain
additional amount. In case no objections
are filed, the sale shall be confirmed in
accordance with the provision of Order 21
Rule 92 Civil Procedure Code. The
scheme of the U.P. Z.A. & L.R. Act and
the Rules framed thereunder appears to be
similar in this regard. This is what appears
from the provisions contained in Rules
285-H and 285-I. Rule 285-H provides
that any person aggrieved by the sale
whose holding or other immovable
property has been sold can apply for
setting aside the sale on payment to the
purchaser the sums mentioned therein. It
is clear from this provision that it applies
only to immovable property. Rule 285-I,
which follows this rule provides that the
remedy of a person whose property has
been sold is to apply before the
1172 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Commissioner for setting aside the sale on
account of material irregularity or mistake
in publishing or conducting it. The
proviso to Rule 285-H takes away the
right of the person who applies under
Rule 285-I to get the sale set aside under
Rule 285-H. The consequence of not
filing objections under Rule 285-I or of
their dismissal have been given in the
Rules 285-J which is that the sale shall be
confirmed if the Collector is satisfied that
the purchase of land would not be in
contravention of Section 154. Rule 285-J
thus refers to land, which is immovable
property. Rule 285-M also refers to the
sale of immoveable property and provides
for putting the purchaser in possession. It
will thus be seen that the consequences
contemplated for not filing objections or
of confirmation of sale are in respect of
immovable property. The consequence of
filing objections under Rule 285-I is the
deprivation of right to apply under Rule
285-H
which relates
to immovable
property. If the consequences of not filing
objections under Rule 285-I fall upon
immovable property it can be inferred that
the objections contemplated under Rule
2985-I relate to immovable property.

7. The provisions of Section of 282
of the U.P. Z.A. & L.R. Act were
considered by a Division Bench of this
Court in 1991 R.D. 250 Shiv Narain
Tiwari Vs. District Magistrate, Fatehpur.
This was a case relating to sale of a bus as
arrears of land revenue under the
provisions of the U.P. Z.A. & L.R. Act.
The court referred to Section 282 and
applied the provisions of Order 21 Rules
77 and 78 of the C.P.C. and held that the
sale becomes absolute on payment of the
purchase price and the remedy of the
person whose property is sold is to obtain
compensation. The Division Bench relied
upon an earlier Division bench in Seth
Hira Lal Vs. State of U.P. that a sale of
movable property becomes complete on
payment by the purchaser of the price and
issuance of receipt and no order or
confirmation of sale is necessary. This
Division Bench was not considered in the
case of Bharat Singh Vs. State of U.P. and
others decided by the learned Single
Judge of the Lucknow Bench of this
Court. A learned Single Judge of this
Court while considering the provisions of
Section 282 of the U.P.Z.A., & L.R.Act
has held that the auction sale of movable
property
does
not
require
any
confirmation and that the sale becomes
absolute on payment of purchase money.
Sri S.N. Singh also placed reliance upon a
decision in 1967 (37) A.W.R. Lakshmi
Narayan Vs. Sub Divisional Officer,
Gyanpur, Varanasi and another on the
point that an objection under Rule 285-I
of the Rules has to be disposed of
judicially on evidence and by an order
recording findings on the relevant points.

8. In view of the aforesaid Division
Bench decisions, which are of binding
effect and of higher authority than the
Single Judge decision in Bharat Singh's
case and also because attention of the
court was not drawn to Section 282 of the
U.P.Z.A. & L.R. Act in Bharat Singh's
case the decision in that case is per
incuriam. In view of what has been stated
above I am of the view that no objection
against the sale of movable property can
be filed within the scope of Rule 285-I of
the U.P. Z.A. & L.R. Rules. The question
as to whether the property in dispute is
movable property has to be decided by the
Commissioner. If the Commissioner holds
that the property in question was
4 All] Kali Charan and others V. Addl. Collector, Aligarh and others
1173
immovable property it will be open to him
to decide the objections on merits. If he
comes to the conclusion that it is movable
property the objection would have to be
dismissed as being not maintainable. It is
not necessary for me to advert to the other
submission made by Sri S.N. Singh that
the order passed by the Commissioner
was an ex parte one and without
opportunity as the order is being set aside
on another point.

9. In view of the discussions made
above the writ petition is allowed and the
order dated 16.10.2004 passed by the
Commissioner,
Varanasi
Division,
Varanasi is quashed. The Commissioner
is directed to decide the matter afresh and
if possible within a period of six months
from the date of presentation of a certified
copy of this order before him. Counsel for
the parties agree that they will appear
before the Commissioner on 26.9.2005
and in case for any reason that is not a
working day then on the next working
day.

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No.14671 of 1984

Kali Charan and others ...Petitioners
Versus
Additional Collector, Aligarh and others

 ...Respondents

Counsel for the Petitioners:
Sri A.K. Sand
Sri P.M. Gupta
Sri M.C. Joshi

Counsel for the Respondents:
Sri V.K. Singh
Sri Anuj Kumar
S.C.

U.P.Z.A. & L.R. Act 1955-Section 122-BPetitioner was granted lease of Bachat
land being uneven and uncultivated by
the L.M.C. under Section 195-earliear
case under Section 209 dismissed on
317.75 with findings the possession of
petitioner is not illegal-became final
between
the
parties-another
village
Pradhan initiated proceeding u/s 122-B
decided in favour of petitioner by order
dt. 21.1.84-on the basis of report of
Lekhpal to the effect the name of
petitioner recorded in colum-4-hence
possession illegal-the Tehsildar by order
dt.
30.6.84
passed
the
order
of
dispossession with direction to Pay
damage
of
Rs.24,675/-held-without
jurisdiction,
manifestly
erroneous,
wrong, bad and illegal-Quashed the
finding recorded earlier will operate as
resjudicata.

Held: Para 8

The assumption of power to initiate
proceedings by the Tehsildar again under
Section 122-B of the Act in which the
impugned orders dated 19.9.1984 and
30.6.1984
were
passed
by
the
respondents no.1 and 2 respectively are
wholly
without
jurisdiction
and
manifestly erroneous, wrong, bad and
illegal and liable to be quashed. In view
of the same, the imposition of damages
to the extent of Rs.24,675/- imposed
arbitrarily
by
the
respondent
no.2
without any basis is also unjust and the
petitioners are not liable to pay the
same.

(Delivered by Hon'ble V.C. Misra, J.)

Heard learned counsel for the parties
at length and perused the record.

1. This writ petition has been filed
challenging the Judgments and Orders