# Ram Awadh Tiwari v. Sudarshan Tiwari and others

- **Citation:** (2008) 2 ILRA 574
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-16
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-awadh-tiwari-v-sudarshan-tiwari-and-others-41229
- **Pages:** 6

## Headnote

Sri. V.K. Goel
Sri. A.P. Srivastava
Sri. A.B. Srivastava
Sri. R.S. Mishra

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 286 read with
Notification dated 17.01.1976-Sale of
agricultural land-in auction proceeding
held towards realization of loan-sale
confirmed
by
the
Sub
Divisional
Magistrate and not by Collector-heldS.D.M. Can exercise every power except
confirmation of sale-direction issued to
refund the amount of auction sale with
5% interest.

Held: Para 24, 25 & 26

Thus, after notification dated 17.1.1976
it has to be accepted that the power to
approve the auction sale conducted
under section 286 of the U.P.Z.A. & L.R.
Act vest with the Collector and Sub
Divisional Officer cannot exercise the
power of approval.

In the present case it is admitted
position that Collector has not approved
the auction sale and learned Single
Judge has rightly set aside the auction
and
also
its
confirmation
by
Sub
Divisional
Officer
and
all
other
consequential action on that ground.

In view of the aforesaid observations,
we are of the considered opinion that the
learned Single Judge has rightly allowed
the writ petition. We do not find any
error in the order of the learned Single
Judge. The appeal is dismissed.
Case law discussed:
JT 2005(5) SC 467

## Text

574 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal 1201 of 2003

Ram Awadh Tiwari

...Appellant
Versus
Sudarshan Tiwari & others ...Respondents

Counsel for the Appellant:
Sri. Veer Singh
Sri. S.C. Pandey

Counsel for the Respondents:
Sri. V.K. Goel
Sri. A.P. Srivastava
Sri. A.B. Srivastava
Sri. R.S. Mishra

U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950-Section 286 read with
Notification dated 17.01.1976-Sale of
agricultural land-in auction proceeding
held towards realization of loan-sale
confirmed
by
the
Sub
Divisional
Magistrate and not by Collector-heldS.D.M. Can exercise every power except
confirmation of sale-direction issued to
refund the amount of auction sale with
5% interest.

Held: Para 24, 25 & 26

Thus, after notification dated 17.1.1976
it has to be accepted that the power to
approve the auction sale conducted
under section 286 of the U.P.Z.A. & L.R.
Act vest with the Collector and Sub
Divisional Officer cannot exercise the
power of approval.

In the present case it is admitted
position that Collector has not approved
the auction sale and learned Single
Judge has rightly set aside the auction
and
also
its
confirmation
by
Sub
Divisional
Officer
and
all
other
consequential action on that ground.

In view of the aforesaid observations,
we are of the considered opinion that the
learned Single Judge has rightly allowed
the writ petition. We do not find any
error in the order of the learned Single
Judge. The appeal is dismissed.
Case law discussed:
JT 2005(5) SC 467

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

1. Heard Sri Veer Singh learned
counsel for the appellant and Sri A.P.
Srivastava on behalf of the respondent.

2. This appeal has been filed against
the judgment and order dated 11.11.2003
passed by the learned Single Judge
allowing the writ petition filed by
respondent no. 1.

3. The brief facts necessary for
deciding
the
appeal
are
that
the
respondent no. 1 took an agriculture loan
of Rs.59,000/- from the Chandauli Branch
of Union Bank of India. The loan was
repayable in 17 equal half yearly
instalments. The respondent no. 1, who
was writ petitioner, committed default in
depositing the instalments, due to which
recovery proceedings were initiated at the
instance of the bank for recovery of the
outstanding amount as arrears of land
revenue. A citation to appear was issued
on 25th November, 1995. In pursuance of
the citation to appear, writ-petitioner was
arrested and after deposited Rs.30,000/-
he was released. Writ-petitioner thereafter
represented the matter to the bank and
also filed a writ petition in this Court
challenging the recovery proceedings.

4. In the writ petition, under an
interim order he was directed to deposit
2 All] Ram Awadh Tiwari V. Sudarshan Tiwari and others
575
50% of the amount and to furnish security
for the balance amount. A sum of
Rs.9,500/- was deposited by the writpetitioner on 22.01.1996 and a security
was also furnished. The interim order in
the writ petition could not be extended,
due to which the recovery proceedings
revived and sale proclamation was issued
fixing 06.01.1997 for sale. Ultimately
auction took place on 12th March, 1997
and the appellant is stated to have offered
the highest amount of Rs.60,400/-. The
Tehsildar conducted the sale and the Sub
Divisional Officer has confirmed the sale
on 31st March, 1997.

5. Against non-extension/grant of
interim order in writ petition, the writ
petitioner filed an Special Appeal No. 260
of 1997. The Division Bench passed an
order for deposit of the entire sale price
with 5% interest. Pursuant to the order of
the Division Bench in special appeal, the
writ-petitioner deposited an amount of Rs.
63,420/- on 27.05.1997. In the meantime
it appears that the Sub Divisional Officer
also executed a sale deed in favour of
auction, purchaser.

6. The learned counsel for the
parties have submitted that amount
deposited by the writ-petitioner i.e.
Rs.64,420/- in the treasury is still lying
there and has not been withdrawn by
either of the party. The auction purchaser
was subsequently impleaded as a party
and he also filed his counter affidavit.

7. The learned Single Judge, after
hearing the parties, allowed the writ
petition vide its judgment and order dated
11.11.2003. i Learned Single Judge took
the view that sale was never confirmed by
the Collector as required by the rules and
confirmation made by the Sub Divisional
Officer was of no legal consequence. The
writ petition was allowed. The auction
sale,
confirmation
of
sale
and
consequential sale deed have been set
aside.

8. It is against this order of the
learned Single Judge that the auction
purchaser has filed this appeal.

9. Sri Veer Singh Advocate on
behalf of the appellant, challenging the
order, contended that the view taken by
the learned Single Judge that Sub
Divisional Officer was not competent to
grant approval to the auction sale is not
correct. He submits that Sub Divisional
Officer by virtue of notification issued
under Section 3(4) of the U.P.Z.A. & L.R.
Act was fully empowered to exercise all
functions of Collector under the U.P.Z.A.
& L.R. Act, 1950. He has also relied upon
the notification dated 11th June, 1953,
published on 13th June, 1953 in the U.P.
Gazette, whereby all Sub Divisional
Officers in the whole State, except for
four
districts,
were
empowered
to
discharge all the functions of the
Collector. He has also placed reliance
upon the judgment of the Apex Court
reported in JT 2005(5) SC 467; Kedar
Nath Dubey (D) By Lrs. & Ors. v. Sheo
Narain Dubey (D) By Lrs. & Ors.

10. Learned Counsel for the
respondent supporting the order of the
learned Single Judge that Sub Divisional
Officer has no jurisdiction to approve the
auction sale, is in accordance with law.
He submits that the learned Single Judge
after taking into consideration subsequent
notification dated 17.01.1976 has rightly
come to conclusion that Sub Divisional
Officer has no power to confirm the
auction sale.
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

11. The issue which has come up for
consideration is as to whether the Sub
Divisional Officer while conducting a sale
has jurisdiction to approve the sale under
Section 286 of the U.P.Z.A. & L.R. Act or
not. Section 286 of the U.P.Z.A. & L.R.
Act, 1950 which is relevant for the
present purpose reads as follows:

"286. Power to proceed against
interest of defaulter in other immovable
property.-(l) If any arrears of land
revenue cannot be recovered by any of the
processes mentioned in clauses (a) to (e)
of Section 279, the Collector may realize
the same by attachment and sale of the
interest of the defaulter in any other
immovable properly of the defaulter.
(2) Sums of money recoverable as arrears
of land revenue but not due in respect of
any specific land, may be recoverer by
process under this section from any
immovable properly of the defaulter
including any holding of which he is a
bhumidhar or asami. "

12. In the present case there is no
dispute to the fact that the recovery was
initiated against the writ-petitioner on
account of the agriculture loan taken from
the bank. The auction of the agriculture
property
of
the
writ-petitioner
was
proceeded with under the relevant rules
for conducting the sale of immovable
property, which are contained in Chapter
X of the U.P.Z.A. & L.R. Act, 1952. Rule
285-J, which is relevant for the present
purpose is extracted below:

"285-.J. On the expiration of thirty
days from the date of the sale if no such
application as is mentioned in Rule 285-H
or Rule 285-I has been made or if such
application has been made and rejected
by the Collector or the Commissioner, the
Collector shall pass an order confirming
the sale after satisfying himself that the
purchase of land in question by the bidder
would not be in contravention of the
provisions of Section 154. Every order
passed under this rule shall be final."

Section 3 (4) of the U.P.Z.A. & L.R. Act
1950 defines the Collector, which is
extracted as below:
"3. Definitions. - In this Act;. unless there
is anything repugnant in the subject or
context:
(4)
"Collector"
means
an
officer
appointed
as
Collector
under
the
provisions of the U.P. Land Revenue Act;.
1901, and includes an Assistant Collector
of the first class empowered by the State
Government by a notification in the
Gazette to discharge all or any of the
functions of a Collector under this Act. "

The Sub Divisional Officer has been
empowered
to
exercise
powers
of
Collector vide notification published in
Gazette, being: notification dated 11th
June, 1953. The notification dated 11th
June, 1953 is as follows:

"in exercise of the powers conferred
by clause (4) of Section 3 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act;. 1950 [(Act 1 of (1951)], the
Governor is pleased to empower all the
Sub Divisional Officers in Uttar Pradesh
except those in the districts of Almora,
Garhwal, Tehri Garhwal and Rampur to
discharge
all
the
functions
of
a
"Collector" under the said Act. "

13. Another notification which has
been relied upon by the appellant is dated
05th December, 1968 under which Sub
Divisional Officers were empowered to
exercise all powers of Collector under the
2 All] Ram Awadh Tiwari V. Sudarshan Tiwari and others
577
U.P.Z.A. & L.R. Act except the power
under Section 198 of the U.P.Z.A. & L.R.
Act.

14. The third notification, which has
been referred to by the learned Single
Judge and has been quoted in the order, is
dated 17.01.1976, is to the following
effect:

"In exercise of the powers under
clause (4) of section 3 of the U.P.
Zamindari Abolition and Land Reforms
Act 1950 (U.P. Act. No. 1 of 1951), the
Governor is pleased to, empower all the
Assistant· Collectors of the First Class,
who are Incharge of the sub-division, to
discharge the functions of a "Collector"
under Section 286 of the said Act in
respect of any, holding of a defaulter of
which he is a Bhumidhar, Sirdar or
Assami, subject to the condition that such
sales are approved by the Collector."

15. The Hon'ble Supreme Court in
its judgment in the case of Kedar Nath
Dubey (supra), while considering the
powers of the Sub Divisional Officer in
the context of U.P.Z.A. & L.R. Act, 1952
and Rule 284 and 285 of the U.P.Z.A. &
L.R. Rules, 1954, with reference to the
notification
issued
on
11.06.1953,
05.12.1968 read along with the letter of
the Secretary, Board of Revenue, Uttar
Pradesh dated 07.07.1983, in paragraph 7
has specifically stated that it is not
expressing any final opinion on the merits
of the case. Paragraph 7 of the judgment
of the Apex Court in the case of Kedar
Nath Dubey (supra), which is relevant, is
reads as follows:

"The Notification makes the position
clear that in all the districts of Uttar
Pradesh except districts of Almora,
Garhwal, Tehri Garhwal and Rampur
SDOs were authorized to discharge all
the functions of the Collector under the
Act. A bare reading of the Notification
dated 11.06.1953 as published in the
official gazette dated 13.6.1953 shows
that it empowered all SDOs in Uttar
Pradesh except those in the enumerated
districts to discharge all the functions of
the Collector under the Act. Letter of the
Secretary, Revenue Board, U.P. dated
7.7.1983 also throws light on the
controversy. It related to discharge of
power under various provisions of the
Act. It noted that by notification of
5.12.1968 Sub Divisional Officers have
been authorized to discharge all functions
of the Collector under the Act except
Section 198. Prima facie the stand of the
appellant is correct. It appears that these
pleas were not considered by the High
Court. We remit the matter to the High
Court for considering it in accordance
with law. We make it clear that no
opinion has been expressed by us on the
merits of the case. The High Court may
dispose of the matter as expeditiously as
possible as the writ petition is pending for
more than a decade. It would be proper
for the High Court to hear the matter
afresh and take a decision on the various
issues involved, as there are certain vital
questions which were not considered by
the High Court. The effect and relevance
of the notification dated 11.6.1953 and
the letter dated 7.7.1983 shall be
considered."

16. Thus the Apex Court, after
noticing the submissions of the parties
and
all
the
notifications,
without
expressing its final opinion remitted the
matter for High Courts consideration
afresh.
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

17. On being asked as to whether
the High Court has decided the issue on
remand under the judgment of the Apex
Court, referred to above, the counsel for
the parties are unable to inform the Court
as to whether any decision has been given
by the High Court or not.

18. Since the Apex Court has not
itself finally decided the issue, this Court
has to look into the notifications and
consider the said issue which has arisen in
the present case also and which is
material for deciding this appeal.

19. Section 3(4) of the U.P.Z.A. &
L.R. Act empowers the State Government
to issue notifications empowering the
Assistant Collector of first class to
discharge all or any of the function of the
Collector under the Act. The power to
issue notification, given under section
3(4), can be exercised from time to time
and power is also given to entrust all or
any of the function according to the
exigencies of administration.

20. The notification dated 11th June,
1953 empowered the Sub Divisional
Officers to exercise all the powers of the
Collector under the Act. By subsequent
notification dated 5.12.1968 the powers
given to Sub Divisional Officers were
again confirmed with the exception of the
power under Section 198. Thus the
notification dated 5th December, 1968
takes away the power of Sub Divisional
Officer, which was earlier exercisable by
him by virtue of notification dated 11th
June, 1953 with regard, to Section 198.
By virtue of notification dated 5th
December, 1968 the Sub Divisional
Officer was no; more empowered to
exercise the power under Section 198.

21. The subsequent notification
dated
17.1.1976
contains
the
same
scheme
empowering
the
Assistant
Collector first class, who is incharge of
the division, to exercise the functions of
the Collector under Section 286 of the
said act in respect of any holding of a
defaulter of which he is a Bhumidhar,
Sirdar or Assami, subject to the condition
that such sales are approved by the
Collector. Thus, the empowerment of the
Assistant Collector qua the powers under
Rule 286 by notification dated 17.1.1976
is hatched by a condition that Sub
Divisional Officer shall exercise all the
powers except .the power to approve the
sale, which shall be done by the Collector.

22. There is, no inconsistency in the
various notifications referred to above.
The notification dated 17.1.1976 does not
alter the position as it was continuing,
except with regard to approval of sale. It
has been specifically provided that the
same would be exercised by the Collector.
The notification dated 17.1.1976 read
with Rule 285-J thus makes it clear that
power to approve the auction sale vest in
the Collector alone.

23. Learned counsel for the appellant
has also referred to and relied on the letter
of the Secretary, Board of Revenue, U.P.
dated 7.7.1983. The said letter has not been
brought on record. However, learned
counsel for the appellant has referred to
paragraph 7 of the judgment of the Apex
Court in the case of Kedar Nath Dubey
(supra) where this letter has been referred.
Reading of paragraph 7 indicates that the
said letter dated 7.7.1983 records that by
notification of 5.12.1968 Sub Divisional
Officers have been authorized to discharge
all functions of the Collector under the Act
except Section 198. Thus letter dated
2 All] Delhi Public School V. The Oriental Insurance Co. Ltd. and others
579
7.7.1983 only explain the position which
was as per the notification dated 5.12.1968.
A reading of paragraph 7 of the judgment
does not lead to any other meaning.
Moreover, the power is vested with the
State Government to empower Assistant
Collector by a gazette notification and the
Secretary, Board of Revenue cannot alter
the empowerment, which has been made
by the gazette notification by the State in
any manner. This letter dated 7.7.1983
does not improve the case of the appellant
any further.

24. Thus, after notification dated
17.1.1976 it has to be accepted that the
power to approve the auction sale
conducted under section 286 of the
U.P.Z.A. & L.R. Act vest with the
Collector and Sub Divisional Officer
cannot exercise the power of approval.

25. In the present case it is admitted
position that Collector has not approved
the auction sale and learned Single Judge
has rightly set aside the auction and also
its confirmation by Sub Divisional Officer
and all other consequential action on that
ground.

26. In view of the aforesaid
observations, we are of the considered
opinion that the learned Single Judge has
rightly allowed the writ petition. We do
not find any error in the order of the
learned Single Judge. The appeal is
dismissed.

27. However, the auction purchaser
shall be entitled to refund of the amount
of Rs. 60,400/-, which was deposited in
pursuance of the auction sale, along with
5% interest as deposited by the writ
petitioner.

Appeal Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

First Appeal From Order No. 1287 of 2008

Delhi
Public
School,
Yamunapuram
Colony

...Appellant
Versus
The Oriental Insurance Company Limited
and others

...Respondents

Counsel for the Appellant:
Sri Vinod Sinha

Counsel for the Respondents:
Sri V.B. Kesharwani

Motor Vehicle Act, 1988-S-173-Claim
Petition-accident by Maruti car-having
compressive
insurance
policyauthorising for passenger-vehicle driven
by the owner-Driver occupying side seatwhether
the
claim
petition
by
the
dependents of driver is maintainable?-
held- yes. While driver not driving-his
status become as passenger-necessary
direction issued.

Held: Para 1

According to us, when a driver is not
driving the vehicle, he can not be held to
be driver but a lawful passenger, which
is covered under the comprehensive
policy. A comprehensive policy can be
made by insured and insurance company
as per the terms and conditions of the
contract
upon
payment
of
higher
premium
unless
prohibited
by
the
statute. There is no prohibition now
under the Motor Vehicles Act, 1988
unlike Motor Vehicles Act, 1939 where
the liability of the insurance company
was statutorily limited.
Case law discussed:
AIR 1995 All. 1