# Kamal Kumar Srivastava v. Board of Revenue U.P. and others

- **Citation:** (2011) 2 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-18
- **Case number:** Civil Misc. Writ Petition No. 8658 of 2006
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-kumar-srivastava-v-board-of-revenue-u-p-and-others-42005
- **Pages:** 11

## Headnote

Sri Hari Shanker Mishra
Sri Pramod Kumar Srivastava
Sri J.P. Tiwari
Sri P.S. Baghel
Sri Rajendra Prasad Tiwari
Sri Uma Kant
Sri V.B. Upadhya
Sri V.S. Giri
Sri Vipin Sinha
Sri Dharm Pal Singh
C.S.C

U.P.Z.A. & L.R. Act , 1950 read with
U.P.Z.A & L.R. Rules 1952-Rule 281-286Auction
Sale
of
agricultural
landrecovery of amount of loan advance by
U.P. Finance Corporation-if such amount
can not be recovered as arrears of land
and revenue-subsequent entire follow up
action without jurisdiction-view taken by
Board of Revenue-held-justified-Petition
dismissed.

Held: Para 38

The functions being quasi-judicial, the
Commissioner
continues
to
have
a
judicious
duty
to
perform
with
a
conscience to guide him to apply his
mind. He cannot turn a blind eye or a
deaf ear to the decision in Unique Butyl's
case by any contrivance of ignorance or
2 All] Kamal Kumar Srivastava V. Board of Revenue U.P. and others

907
by cultivating any art of forgetfullness.
Obedience to law is not only a duty but
also a moral obligation towards society.
Performance of a statutory duty cast
under a rule has to be underlined with
such principles. The Commissioner, in
the given circumstances of a case, may
have to ensure such a performance by
avoiding
the
dilemma
between
an
illegality and irregularity.
Case law discussed:
(2003) 2 SCC 455; AIR 1968 Supreme Court
Pg. 954 (Para. 4); AIR 1971 Supreme Court
Pg. 1558 (Para.21); 1998 ACJ Pg. 1462(Paras.
2 and 5); 1991 AWC Pg. 842 (Para. 9); AIR
1987 Supreme Court pg. 1443 (Para. 14);
2000 (3) SCC Pg. 87 (Para. 10); 2006 (4) ADJ
Pg. 34; (1997) 8 SCC 22;

## Text

906 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

defined to mean "having suffered loss or
injury; damnified; injured", aggrieved
person has been defined to mean:

"One whose legal right is invaded
by an act complained of, or whose
pecuniary
interest
is
directly
and
adversely affected by a decree or
judgment. One whose right of property
may be established or divested. The word
"aggrieved" refers to a substantial
grievance, a denial of some personal,
pecuniary or property right, or the
imposition upon a party of a burden or
obligation."

12. Therefore, in our considered
view, the petitioner is not a person
aggrieved in regard to subject matter
involved in the instant case, hence , he
has no locus standi to file the present
Writ Petition under Article 226 of the
Constitution of India.

13. Further, Sri J.N. Mathur,
learned Additional Advocate General of
U.P. has very fairly submitted that he
will look into the matter and bring it to
the notice of respondents no. 1 and 2 to
take appropriate action , if the same is
correct. We hope and trust on the
submission made by Sri Mathur, who
will use his office to do the needful.

14. For the foregoing reasons, writ
petition
is
dismissed
with
above
observations.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2011

BEFORE
THE HON'BLE A.P. SAHI,J.

Civil Misc. Writ Petition No. 8658 of 2006

Kamal Kumar Srivastava
 ...Petitioner
Versus
Board of Revenue U.P. and others

 ...Respondents

Counsel for the Petitioner:
Sri Gajendra Pratap

Counsel for the Respondents:
Sri Hari Shanker Mishra
Sri Pramod Kumar Srivastava
Sri J.P. Tiwari
Sri P.S. Baghel
Sri Rajendra Prasad Tiwari
Sri Uma Kant
Sri V.B. Upadhya
Sri V.S. Giri
Sri Vipin Sinha
Sri Dharm Pal Singh
C.S.C

U.P.Z.A. & L.R. Act , 1950 read with
U.P.Z.A & L.R. Rules 1952-Rule 281-286Auction
Sale
of
agricultural
landrecovery of amount of loan advance by
U.P. Finance Corporation-if such amount
can not be recovered as arrears of land
and revenue-subsequent entire follow up
action without jurisdiction-view taken by
Board of Revenue-held-justified-Petition
dismissed.

Held: Para 38

The functions being quasi-judicial, the
Commissioner
continues
to
have
a
judicious
duty
to
perform
with
a
conscience to guide him to apply his
mind. He cannot turn a blind eye or a
deaf ear to the decision in Unique Butyl's
case by any contrivance of ignorance or
2 All] Kamal Kumar Srivastava V. Board of Revenue U.P. and others

907
by cultivating any art of forgetfullness.
Obedience to law is not only a duty but
also a moral obligation towards society.
Performance of a statutory duty cast
under a rule has to be underlined with
such principles. The Commissioner, in
the given circumstances of a case, may
have to ensure such a performance by
avoiding
the
dilemma
between
an
illegality and irregularity.
Case law discussed:
(2003) 2 SCC 455; AIR 1968 Supreme Court
Pg. 954 (Para. 4); AIR 1971 Supreme Court
Pg. 1558 (Para.21); 1998 ACJ Pg. 1462(Paras.
2 and 5); 1991 AWC Pg. 842 (Para. 9); AIR
1987 Supreme Court pg. 1443 (Para. 14);
2000 (3) SCC Pg. 87 (Para. 10); 2006 (4) ADJ
Pg. 34; (1997) 8 SCC 22;

(Delivered by Hon'ble A.P. Sahi,J.)

1. This petition arises out of an order
passed by the learned Commissioner
respondent no. 2 in objections filed by the
respondent no. 4 and 5 under Rule 285-I
of
the
Uttar
Pradesh
Zamindari
Abolitional & Land Reforms Rules, 1952,
in relation to an auction conducted for
sale of plot no. 273 situate in village at
Buxi Uparhar, Pargana & Tehsil Sadar,
District Allahabad. The order has been
affirmed by the Board of Revenue in
revision.

2. The background in which the
auction took place is that the respondent
no. 6 - Dinesh Kumar Pandey took a loan
from the U.P. Financial Corporation to set
up a Small Plastic Production Unit. He
defaulted in repayment of the loan, as a
result whereof, the Financial Corporation
issued a recovery certificate.

3. The plot in dispute was
mortgaged against the said loan and as
such the same was put to auction to
realise the dues as arrears of land revenue
under the provisions of the U.P. Z.A. &
L.R.
Act,
1950.
The
auction
for
immovable property is conducted under
Section 284 of the U.P. Z.A. & L.R. Act,
1950, read with under Rules 281 to 286 of
the U.P. Z.A. & L.R. Rules, 1952.

4. The petitioner claims to have
participated
in
the
said
auction
proceedings on 25th June, 2002, in which
one Smt. Sobha Yadav was the highest
bidder.
The
auction
was
however
cancelled on the ground of inadequacy of
the bid amount and the property was
again put to sale on 7th September, 2002,
on which date the petitioner succeeded in
offering an amount of Rs. 4,40,000/- for
the land in dispute and the bid was
knocked down in his favour.

5. The auction proceedings were
challenged by the respondent nos. 4 and 5
by moving an objection under Rule 285-I
as provided for under the 1952 Rules, and
the Commissioner, who is the competent
authority, instead of deciding the matter
himself remitted the matter to the Sub
Divisional Magistrate who had conducted
the
auction.
This
order
of
the
Commissioner dated 10th December,
2002 was subjected to challenge in writ
petition no. 7370 of 2003 by the
respondent no. 4 Smt. Dhanpatti and the
respondent no. 5 Sarla Devi. This petition
was allowed on 30th November, 2004 on
the ground that it is the Commissioner
who has to decide objection and the same
cannot be remitted to the Sub Divisional
Magistrate under the provisions of Rule
285-I of the U.P. Z.A. & L.R. Rules,
1952. A rider was also put in that till the
decision is taken on the objection, no
further constructions shall be made by the
petitioner auction purchaser.
908 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

6. The matter reached the learned
Commissioner once again, and the same
proceeded before him. The respondent
owner of the plot took a clear plea that the
bid amount was inadequate as the
property was worth Rs. 10 lacs, and that
the auction was conducted in violation of
the rules. It was also urged by the owner
that
Dinesh
Kumar
Pandey
had
misutilized the documents and title deed
of the property by placing it in the
custody of the Financial Corporation for
the purpose of mortgage, and that the
recovery was absolutely illegal. No notice
was given about the auction nor any
attachment
was
carried
out
or
proclamation
issued
to
the
said
respondent.
There
were
only
two
participants in the auction and one of
them was the petitioner who is an
employee in the Collectorate which fact is
admitted by him. He is a clerk in the
office
of
the
District
Development
Officer, hence, he could not have
participated in the auction in view of the
bar operating by virtue of Rule 285-B of
the 1952 Rules.

7. The aforesaid objection was
supplemented after remand by the High
Court where it was stated that the
recovery certificate which had been sent
by
the
U.P.
Financial
Corporation
indicated that the price of the property
was
Rs.
8,35,000/-
and
that
the
description of the property and address
was not correctly shown. The notice was
not received by the respondent which was
sent on a wrong address deliberately.

8. In Paragraph 18 of the said
supplementary
objection
it
was
categorically stated that no recovery
should be made through the process of
arrears of land revenue in view of the Act
No. 51 of 1993 which is an Act of
Parliament and the law had been declared
categorically on this point in the case of
M/s Unique Butyle Tube Industries Pvt.
Ltd. Vs. U.P. Financial Corporation &
others, reported in (2003) 2 SCC 455. It
was also asserted therein that the
proceedings with regard to the conduct of
auction had been enquired into through
the then Additional District Magistrate,
Finance & Revenue, who had submitted a
report on 6th March, 2003, clearly stating
therein that the auction had been
conducted under the undue influence of
the Tehsil Sadar Authorities and had been
hurriedly carried out. This supplementary
objection dated 13.12.2004 is on record as
Annexure CA-2 of the counter affidavit.

9. The learned Commissioner
proceeded to consider the objections and
recorded a finding that the petitioner
(auction purchaser) was not in a position
to influence the auction proceedings and
therefore the objection that he being an
employee of the Collectorate has affected
the auction proceedings does not appear
to be correct.

10. On the issue relating to the
irregularities mentioned in the objection
the learned Commissioner came to the
conclusion that he is not fully in
agreement with the said objections even
though some of the steps relating to
procedure have not been correctly taken.
He
however,
held
that
since
the
respondent
-
Smt.
Dhanpatti
had
information about the auction, therefore
the contention of the respondent that she
had no information about the second
round of auction cannot be accepted.

11. Learned Commissioner further
went on to hold that the petitioner's
2 All] Kamal Kumar Srivastava V. Board of Revenue U.P. and others

909
contention that there was no fault on the
part of the auction purchaser appears to be
correct
and
that
he
has
raised
constructions after having purchased the
plot. However the Commissioner went on
to allow the objection filed by the
respondent solely on the ground that in
view of the provisions of 1993 Act, it
would be appropriate to set aside the
auction. The role of the U.P. Financial
Corporation was not found to be justified.

12. The said order of the learned
Commissioner was assailed before the
Board of Revenue which also came to the
conclusion
that
since
the
recovery
proceedings initiated fell within the scope
of the powers of the Debt Recovery
Tribunal, therefore, any arguments raised
on behalf of the petitioner cannot be
accepted and the revision was accordingly
dismissed. Aggrieved, the petitioner is
before this court under Article 226 of the
Constitution of India.

13. The petition was entertained and
an interim order was passed on 21.2.2006
to the effect that the parties shall maintain
status quo and that the petitioner will not
alienate the property in dispute.

14. Sri Gajendra Pratap learned
senior counsel for the petitioner advanced
his submissions focused on the point that
the learned Commissioner while allowing
the objection has travelled completely
beyond the scope of Rule 285-I of the
U.P. Z.A. & L.R. Rules, 1952. To
understand his submissions further Rule
285-I is reproduced herein under:-

"Rule 285-I (i) At any time within
thirty days from the date of the sale,
application
may
be
made
to
the
Commissioner to set aside the sale on the
ground of some material irregularity or
mistake in publishing or conducting it;
but no sale shall be set aside on such
ground unless the applicant proves to the
satisfaction of the Commissioner that he
has sustained substantial injury by
reason of such irregularity or mistake.

(ii) [* * *]

(iii) The order of the Commissioner
passed under this rule shall be final."

15. The submission of Sri Gajendra
Pratap is to the effect that an auction can
be set aside only if there is a material
irregularity in the holding of the auction
either in the publication thereof or its
conduct and further the objector will have
to prove to the satisfaction of the
Commissioner that the objector has
sustained substantial injury by reason of
such irregularity or mistake.

16. In the instant case Sri Gajendra
Pratap submits that the finding with
regard to any such irregularity or mistake
is against the respondent and the
Commissioner has categorically held that
he has not found any irregularity in the
conduct of auction. Once, this finding has
been arrived at it was not open to the
Commissioner to enter into the issue of
legality of the auction, namely, the impact
of the 1993 Act (supra), and the law as
declared in M/s Unique Butyle's case
(supra).

17. He contends that no effort was
made by the respondent to move any
application under Rule 285-H to set aside
the sale, and if the respondent was
aggrieved by any fraud having been
played by the original borrower Mr.
Dinesh Kumar Pandey, and the auction
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

having been conducted on account of
some fraud in relation thereto, then a suit
could have been filed in the Civil Court
for setting aside the sale on the ground of
fraud as provided for under the proviso to
Rule 285-K. He contends that the learned
Commissioner under Rule 285-I acts as a
Tribunal with limited jurisdiction and
authority to set aside a sale on the ground
as defined therein. It has no authority to
decide the validity of the proceedings of
recovery or its own authority to decide
such an objection. He submits that even if
the proceedings of auction were void as
contended by the respondent then the
same could have been ignored at an
appropriate forum but it could not have
been subject matter of adjudication on an
objection under Rule 285-I. The sale
could not have been set aside on such a
ground under the said rule. He further
submits that there is no finding on any
substantial injury having been caused to
the owner of the property and in the
absence of any ingredient as defined in
the rules the sale could not have been
annulled. He submits that an auction
purchaser needs a equal protection under
the law inspite of a complete procedure
having been provided for the protection of
the debtor.

18. Sri Pratap further invited the
attention of the Court to the original
objection filed under 285-I, to contend
that no such plea had been taken initially
in the year 2002, nor such a plea was
taken before this Court when the previous
writ petition no. 7370 of 2003 had been
filed. In such a situation, this pleading in
this proceeding should be treated to be
barred on the principles of Order II Rule
2.

He has cited the following decisions
in support of his submissions:-

1.AIR 1968 Supreme Court Pg. 954
(Para. 4), Ram Chandra Arya Vs. Man
Singh & another.

2.AIR 1971 Supreme Court Pg. 1558
(Para. 21), Union of India Vs. Tarachand
Gupta & Bros.

3.1998 ACJ Pg. 1462 (Paras. 2 and
5), Smt. Mahmooda Vs. District Judge,
Bahraich & others.

4.1991 AWC Pg. 842 (Para. 9),
Bachi Ram Vs. Swami Santosha Nandji.

5.AIR 1987 Supreme Court pg. 1443
(Para.14), Ganpat Singh Vs. Kailash
Shankar & others.

6. 2000 (3) SCC Pg. 87 (Para. 10),
Kadiyala Rama Rao Vs. Gutala Kahna
Rao & others.

19. He has further invited the
attention of the court to the provisions of
Order XXI Rule 90 Civil Procedure Code
and the celebrated authorities on this
branch of jurisprudence by Wade &
Forsyth and that of De-Smith.

20. Replying to the said submissions
Sri Dharm Pal Singh learned Senior
Counsel assisted by Sri H.S. Mishra
submits that the petitioner manipulated
this auction in his favour as he was a
Collectorate employee and under Rule
285-B of the 1952 Rules, such an
employee was ineligible to participate in
the auction. He contends that after the
first proclamation, the auction was
conducted but set aside, and the second
proclamation was issued on 23.8.2002 for
2 All] Kamal Kumar Srivastava V. Board of Revenue U.P. and others

911
holding an auction on 7th September,
2002. He therefore contends that the
second auction was held in violation of
Rule 285-A, which requires 30 days of
notice, whereas the proclamation only
gives 15 days time. He submits that even
though the findings recorded by the
learned
Commissioner
were
not
challenged separately yet the finding of
the learned Commissioner that there was
no irregularity in the auction, is incorrect.
The violation of the said Rule as also the
participation of the petitioner both are
material irregularities that vitiate the
auction and therefore the sale deserves to
be set aside. No notice was given to the
answering respondent and that the finding
of
knowledge
about
the
second
proclamation is perverse. Not only this,
the Collector before proceeding to put up
the property to an auction failed to
acknowledge his inability to do so in view
of the law as expounded in M/s Unique
Butyle's case (supra), and apart from this,
the U.P. Financial Corporation had clearly
written a letter on 31st January, 2002,
requesting the Collector not to recover the
amount as against the respondent - Smt.
Dhanpatti. He further submits that the
value of the property was not indicated in
the proclamation and Rule 283 appears to
have been violated for which reliance is
placed on the judgment of a learned single
Judge in the case of Pravesh Kumar
Sachdeva Vs. State of U.P. & another,
reported in 2006 (4) ADJ Pg. 34.

21. He has further invited the
attention of the Court to Paragraph 13 of
the decision in the case of Martin Burn
Ltd.
Vs.
Municipal
Corporation,
Calcutta, AIR 1966 Supreme Court
529, to contend that the meaning of the
word irregularity should not be confined
only to procedural defects, and which
would also include within its fold the
authority to hold auction. He further
submits that the Commissioner in his own
order had clearly held that all steps that
were required to be taken had not been
followed. Hence, the order of the
Commissioner should not be construed as
if there was no irregularity in the auction
proceedings.

22. Having considered these rival
submissions and in view of the position of
law that emerges, the contention of Sri
Gajendra Pratap that the Commissioner
has to proceed within the precincts of
Rule 285-I cannot be doubted. The
authority cited by him in the case of
Shanti Devi Vs. State of U.P. & others,
(1997) 8 SCC 22, the scope of the said
rules have been explained in paragraph 8,
12 and 13 thereof. There an objection had
been
raised
at
the
stage
of
the
confirmation of sale that the auction of
the land was in violation of Section 154 of
the U.P. Z.A. & L.R. Act, which provides
that no person can hold land in excess of
12.50 acres. This nature of objection was
held to be entertainable after confirmation
and it was not an objection relating to any
irregularity or mistake in publishing or
conducting the auction. Such an objection
was therefore held not to be barred and
could have been raised. The scope of the
said decision was in relation to the
statutory duty of the Collector to ensure
that the provision of Section 154 is not
violated. While deciding the case, the
apex court derived support from the
provisions of the C.P.C. to hold that Rule
285-H and Rule 285-I are akin to Order
XXI Rule 90.

23. Sri Gajendra Pratap submits that
this
authority
therefore
should
be
extended
to
construe
that
the
912 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Commissioner cannot travel beyond the
irregularities or mistake as defined under
Rule 285-I of the U.P. Z.A. & L.R. Rules,
and enter into the question of illegality.
He supports his contention with the recital
contained in the authority of the Wade &
Forsyth to the following effect:-

"As to these 'jurisdictional facts' the
tribunal's decision cannot be conclusive,
for otherwise it could by its own error
give itself powers which were never
conferred upon it by Parliament."

24. On this issue he has also invited
the attention of the court to the language
used in Order XXI Rule 90 and he
therefore submits that the authorities
relied on by him clearly establish that the
Commissioner had committed an error in
proceeding to entertain the objection after
having
found
that
there
was
no
irregularity in the auction proceedings.

25. On this issue Sri Gajendra Pratap
is right in his submission that this
objection came to be raised after the
matter was remitted by this Court on 30th
November, 2004. His submission is that
this Court had only directed the decision
on the original objection which had been
filed along with the said petition dated
18.9.2002.
What
he
intends
to
communicate is that the supplementary
objection filed in the year 2004 by the
respondent after remand could not have
been subject matter of consideration.

26. This in my opinion would not be
the correct position of law, inasmuch as,
once the matter had been remitted to the
Commissioner to decide the matter afresh
then the objection will be deemed to have
been pending before the Commissioner
and it was open to the objector to raise all
other pleas that were available for the
purpose of the decision on the objection.
Secondly, what was brought to the notice
of the learned Commissioner was the
correct position of law in relation to the
authority to hold auction. Whether this
could have been gone into by the
Commissioner or not is a different issue,
but the supplementary objection filed by
the respondent could not have been
rejected
merely
because
it
raised
additional points in support of the
objection already filed. The petitioner was
not prejudiced as he had full opportunity
to contest the said objection.

27. Coming to the main issue
advanced, an action authorised by law is
one which is sanctioned by law. Such an
action which is authorised by law has to
be in accordance with law or in other
words in conformity with law. An action
which is unlawful cannot be described as
lawful only on the ground that authority
which has been conferred with the power
to deal with the action has no authority by
itself to decide such an objection. It is true
that the Commissioner cannot travel
beyond the scope of the power invested in
him under Rule 285-I, which has the
ingredient only of material irregularity or
mistake coupled with the satisfaction of
substantial injury. The Commissioner
cannot by a wrong decision clutch at a
jurisdiction which he does not posses nor
can he refuse to exercise jurisdiction
which he otherwise possesses. He can
only decide a question which is within his
jurisdiction.

28. In the instant case the
Commissioner, to translate his own
words, has stated that he does not fully
agree with the contention of the objector
that the auction should be annulled on the
2 All] Kamal Kumar Srivastava V. Board of Revenue U.P. and others

913
ground of non-compliance of procedure.
In the very next sentence he holds that it
is true that every step that was required to
be taken has not been taken. He however,
again holds that the meaning of the word
step stood fulfilled as it substantially
means, notice by the authority, and which
according to him was given to the
respondent. The Commissioner therefore
himself did not spell out each step that
had been complied with or those steps
which had been faulted with. It is here
where Sri Gajendra Pratap insists that
even if it is assumed that there was some
irregularity, and that the finding is
incomplete, then the matter would at best
require
a
remission
before
the
Commissioner
as
it
cannot
be
conclusively said that there was any
material irregularity.

29. The said argument of Sri
Gajendra Pratap has to be understood in
the light of the other two submissions
made by Sri Dharm Pal Singh, who has
pointed out that Rule 285-A and Rule
285-B have been violated. The second
proclamation gave only 15 days notice
and the finding that the respondent had
notice of the said second proclamation is
perverse.

30. Sri Gajendra Pratap contends
that once the proclamation that had been
issued after the first auction, had been set
aside, the respondent will be presumed to
have knowledge, more so, when the first
auction had been set aside and was in the
knowledge
of
the
respondent.
The
aforesaid contention of Sri Gajendra
Pratap is not borne out from the record.

31. The learned Commissioner could
not have travelled beyond Rule 285-I, and
after having recorded a finding in favour
of the petitioner on the issue of
irregularity, should have further gone to
record a finding of substantial injury,
which he did not do. To that extent the
Commissioner may not have fulfilled his
obligation as required under Rule 285-I,
nonetheless the gamut of the findings do
indicate that the Commissioner had doubt
about all the steps having been taken for
holding of the auction in accordance with
rules. The finding on irregularity was
therefore neither clinching nor conclusive
so as to read it entirely in favour of the
petitioner. The Commissioner for reasons
best known to him employed a dubious
language to make his reasoning look more
obscure than transparent.

32. In this background, the auction
was set aside by the Commissioner on the
ground of an illegality, apart from any
irregularity or mistake as urged on behalf
of the learned counsel for the petitioner,
holding that recovery was impermissible
through a procedure as arrears of land
revenue. This basis has been affirmatively
enunciated in matters relating to loans
taken from the Financial Corporation
clearly and unequivocally in the matter of
M/s Unique Butyle's case (supra). The
Apex Court has already referred this
matter to a larger bench but so far as the
law already declared is concerned, it still
holds the field. The decision in the case of
M/s Unique Butyle (supra), therefore
clearly declares law that such a recovery
cannot be undertaken as arrears of land
revenue.

33. If the very authorisation of
conducting an auction under the revenue
law as arrears of land revenue cannot be
countenanced then it would be a travesty
of justice to allow the Commissioner to
reject such an objection where the very
914 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

basic authority of auction is outside the
purview of the Act. It is correct on the
part of Sri Gajendra Pratap to urge that
the respondent could have straight away
challenged the auction proceedings before
the Collector by raising an objection or by
assailing the same through a writ petition
before this Court which has not been
done.

34. Sri Gajendra Pratap may be right
in his submissions on the scope of the
Commissioner's powers under Rule 285-I
but it is equally true that this Court in the
exercise of its jurisdiction under Article
226 read with Article 227 of the
Constitution of India is not denuded of its
power to come to the aid of a litigant
whose rights should be taken away on
account of an incorrect forum having been
approached by him. Otherwise also, the
law declared by the Apex Court binds all
under Article 141, the tribunals and the
courts alike.

35. As a matter of fact the
respondent had approached this Court by
filing a writ petition where this issue had
not been raised yet the Commissioner was
directed to decide the objections filed by
the respondent. The Commissioner or the
Board could not have taken it as a ground
of irregularity or mistake but they could
not have ignored a patent want of
jurisdiction to hold the auction. The
authority cited by Sri Gajendra Pratap in
the matter relating to a conditional sale
would not be applicable in the instant case
where by operation of a statute of
Parliament and declaration of law to that
effect by the Apex Court, the very
authority of the revenue officials under a
statute has been taken away denuding
them of any authority to hold any auction.
The proceeding of auction, therefore
would be void and this Court would not
upturn the order once it is established that
the law declared by the apex court clearly
comes to the aid of the respondents. The
operation
of
a
statute
cannot
be
subjugated by the incompetence of the
authority to decide an objection under a
rule.

36. The Commissioner may not have
the authority to decide an illegality but he
can always acknowledge that the auction
could not have been held under the
procedure of the U.P. Z.A. & L.R. Act,
and the rules prescribed thereunder. If the
very authority to hold an auction is taken
away then the Commissioner or the Board
of Revenue cannot be said to have
committed any error in declaring the
auction to be illegal. This Court would
also not exercise its discretion where any
interference may cause the restoration of
an unlawful auction.

37. This Court is not oblivious of the
distinction
between
"illegality"
and
"irregularity" as pointed out by Sri
Gajendra Pratap with the aid of Law
Lexicon by P. Ramanatha Aiyer. The
word "illegal" has been defined in Section
43 of the Indian Penal Code which is
comprehensive in nature. Illegality, in my
opinion, is a higher degree of patent
infirmity in law which is fundamental, as
compared to an irregularity which is
limited generally to procedural lapses.
The Commissioner under Rule 285-I may
not be conferred with powers to deal with
any illegality other than the irregularity or
mistake defined therein, but he is also not
empowered to ignore the mandate of
substantive law declared by the apex
court. The Commissioner cannot say that
he has the choice to turn blind to a law
enunciated directly on the issue by the
2 All] Kamal Kumar Srivastava V. Board of Revenue U.P. and others

915
highest court of the land. Even this court
has hardly any or little choice. The duty
of all courts and tribunals under Article
144 of the Constitution of India is to come
to the aid of the Supreme Court to uphold
the laws and therefore all options to avoid
law stand ruled out. The binding nature of
the law in Unique Butyl's case (supra)
eclipses all arguments of mere procedural
irregularities. It would be impossible for
any tribunal or court to guess, probe,
adjudicate and decide the wisdom of any
law declared by the apex court. Neither
equitable considerations nor principles of
estoppel would be attracted in the face of
the decision of the Supreme Court.

38. That which is fundamental
cannot be avoided or buried under a
canopy of assumed helplessness. This
would bring about more injustice than
adherence to law. It is correct for Sri
Gajendra Pratap to say that if the rules
require the performance of a duty by the
Commissioner in a particular manner,
then it has to be performed in that manner
alone. However, this duty cannot be
performed by sacrificing law itself at the
altar of diminished jurisdiction. The
Commissioner has not lost the authority to
obey law. He cannot pretend to be blind
and continue to see things with open eyes
simultaneously.
The
functions
being
quasi-judicial,
the
Commissioner
continues to have a judicious duty to
perform with a conscience to guide him to
apply his mind. He cannot turn a blind
eye or a deaf ear to the decision in Unique
Butyl's case by any contrivance of
ignorance or by cultivating any art of
forgetfullness. Obedience to law is not
only a duty but also a moral obligation
towards
society.
Performance
of
a
statutory duty cast under a rule has to be
underlined with such principles. The
Commissioner, in the given circumstances
of a case, may have to ensure such a
performance by avoiding the dilemma
between an illegality and irregularity.

39. Sri Gajendra Pratap then urged
that the petitioner had raised certain
constructions and he has sold away a
parcel of the land to a third party and as
such the matter can be disposed of by
compensating the respondent adequately
in lieu of the said property in terms of
money. Sri Dharm Pal Singh clearly
denied accepting any such offer. It will be
relevant to repeat that this Court while
allowing the writ petition on 30th
November, 2004, restrained the petitioner
(auction purchaser) from raising any
further constructions. Not only this, in the
new writ petition there was a restraint of a
status quo and from alienating the
property in dispute. Sri Singh has further
indicated that there were other interim
orders operating before the learned
Commissioner and the Board of Revenue
and that any deliberate attempt on the part
of the petitioner to sell the property or
raise any constructions is hit by such
orders and by the doctrine of pendentilite. There can be no dispute on the said
proposition.

40. oIn view of the conclusions
drawn hereinabove, it is difficult to upturn
the decision of the Commissioner as
affirmed in revision.

41. The writ petition fails and is
hereby dismissed.
---------
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 12756 of 1993

Ram Swaroop Singh

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petition:
Sri Anil Sharma

Counsel for the Respondents:
S.C.

Civil Procedure Code Order 41 Rule 23Remand-order
when
entire
material
available before the appellate authorityitself should decide the matter on merit
instead of remanding before Prescribed
authority-unnecessary remand-order not
sustainable.

Held: Para 5

Before holding an order or part of order
to be incorrect it is incumbent upon the
appellate
authority
to
discuss
and
demonstrate as to how it found the order
in appeal incorrect or vitiated on one or
other ground. The mere observation that
finding recorded by court below is
incorrect makes the order unreasoned
and non speaking and such an order
cannot sustain. An order of reman ought
not to have been passed in routine
course but the appellate court must
consider
the
matter
with
more
seriousness and unless and until it finds
that order of court below cannot be
sustained at all then after demonstrating
and discussing the matter it ought to
have passed an order. When the entire
material on record is available the
appellate
court
ought not
to
have
remanded the matter but should have
decided on its own. An order of remand
normally passed when something not
evident from record has to be seen.
Case law discussed:
1993 UPTC-407; 1995 UPTC-1035; AIR 1999
SC 1125; AIR 2004 SC 1239; 2006(8) ADJ 586

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard Shri Anil Sharma, learned
counsel for petitioner and the Standing
Counsel for the respondents.

2. It is contended that the land
purchased by major son of the petitioner
from his own resources could not have
been included in the land of the petitioner.
When he received the notice under
Section 10(2) read with Section 29 of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1973, he raised his
objection
whereupon
the
Prescribed
Authority recorded a finding while
considering Issue Nos. 5 & 6, that the
land purchased by Pritam Singh, son of
the petitioner from his own resources
cannot be included in the holdings of Ram
Swaroop Singh and the issues were
decided in favour of the petitioner.

3. Learned Commissioner in appeal
held the findings recorded by Prescribed
Authority on Issues 5 & 6 incorrect and
that court below has not taken decision on
merits on the said issue and on this
ground he remanded back the matter to
the court below to decide afresh on merits
after hearing both the parties. However
while holding the findings it has not
shown how the findings are incorrect.

4. After hearing the learned counsel
for the parties and perusing the record, I
find force in the contention of the learned
counsel for petitioner. The appellate
authority has committed illegality in
setting aside the judgement and order of