# Smt. Meena Singh and others v. Jang Bahadur and others

- **Citation:** (2013) 2 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-21
- **Case number:** Review Petition No. 368 of 2010
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-meena-singh-and-others-v-jang-bahadur-and-others-42595
- **Pages:** 4

## Headnote

Sri S.P. Shukla

U.P.Zamindari
abolition
and
Land
Reforms
Act
1955-Rule
285-H-
Application to set-a-side auction sale-filed
within time-kept pending without disposalargument that unless entire amount of
auction
of
sale
not
deposited-before
confirmation of sale-mere filing application
within time immaterial-held-unless order
passed-the
treasury
challan
verifiedamount could not be deposited-view taken
by collector rightly depreciated no question
of Review-application rejected.

Held: Para-11
Under the circumstances, I am of the
view that the deposition of the amount is
necessarily a condition precedent for
setting aside the sale, but not for moving
the application for setting aside the sale.
The argument as raised by the learned
counsel for the respondents/petitioners
is worth to be considered that unless the
petitioners' application is allowed and
the Treasury Form offering the amount
to deposit in the Treasury is verified by
the Revenue Authority, the same shall
not be accepted by the Treasury. It is not
in dispute that in the case in hand the
petitioners moved the application for
setting aside the sale within thirty days
from the date of sale, but the same was
kept
undisposed
of,
rather
the
respondents proceeded to confirm the
sale.

Case Law discussed:
2006(100)RD 534; 2006(3)AWC 2976; (1996)
6 SCC 755

## Text

598 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Judge has granted parity with a similarly
situated employee as referred to herein
above, namely Mohd. Mustafa; and that in
a similar case a Full Bench of the Punjab
and Haryana High Court has quashed the
provision which was upheld by the
Hon'ble Apex Court in appeal: the
judgment of the Full Bench has merged
into the judgment of the Hon'ble the Apex
Court reported in AIR SCW 1670
(Punjab Electricity Board and another
v. Narata Singh and another). Thus the
provisions of regulation 370 of the U.P.
Civil Service Regulation have to be read
down in line with judgment of Hon'ble the
Apex Court in the absence of challenge to
the validity of the regulation in this
petition or in any other petition earlier.

7. Regarding the application for
condonation of delay in filing the Special
Appeal, as learned counsel for the
respondents does not have any objection
to the application being allowed it is
hereby allowed and the delay as pointed
out by the registry is thus condoned.

8. The special appeal, being devoid
of merit, is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 21.05.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Review Petition No. 368 of 2010

Smt. Meena Singh and others.Petitioners
Versus
Jang Bahadur and others.. .Respondents

Counsel for the Petitioner:
Sri R.K. Sharma

Counsel for the Respondents:
Sri S.P. Shukla

U.P.Zamindari
abolition
and
Land
Reforms
Act
1955-Rule
285-H-
Application to set-a-side auction sale-filed
within time-kept pending without disposalargument that unless entire amount of
auction
of
sale
not
deposited-before
confirmation of sale-mere filing application
within time immaterial-held-unless order
passed-the
treasury
challan
verifiedamount could not be deposited-view taken
by collector rightly depreciated no question
of Review-application rejected.

Held: Para-11
Under the circumstances, I am of the
view that the deposition of the amount is
necessarily a condition precedent for
setting aside the sale, but not for moving
the application for setting aside the sale.
The argument as raised by the learned
counsel for the respondents/petitioners
is worth to be considered that unless the
petitioners' application is allowed and
the Treasury Form offering the amount
to deposit in the Treasury is verified by
the Revenue Authority, the same shall
not be accepted by the Treasury. It is not
in dispute that in the case in hand the
petitioners moved the application for
setting aside the sale within thirty days
from the date of sale, but the same was
kept
undisposed
of,
rather
the
respondents proceeded to confirm the
sale.

Case Law discussed:
2006(100)RD 534; 2006(3)AWC 2976; (1996)
6 SCC 755

(Delivered by Hon'ble Shri Narayan
Shukla, J.)

1. Heard Mr.Ratan Kant Sharma,
learned counsel for the review petitioners
as well as Mr.S.P.Shukla, learned counsel
for
the
petitioners/respondents.
2 All] Smt. Meena Singh and others Vs. Jang Bahadur and others
599

2. Through the instant review
petition the petitioners have prayed to
review the order dated 6.5.2010, passed
by this court in writ petition No.1047
(MS) of 1988.

3. The main ground to review the
order passed by this court has been taken
that this court has failed to appreciate
Rule
285-H
of
the
U.P.Zamindari
Abolition and Land Reforms Act (in short
U.P.Z.A.&L.R.Act). It is stated that this
court has dealt with the case with the
findings that once the petitioners' moved
the application and offered to repay the
entire dues within 30 days from the date
of sale, before confirmation, the Collector
was under obligation to set aside the sale,
but he did not do so, rather he confirmed
the auction sale. It is stated by them that
deposition of amount is a condition
precedence for acceptance of any such
application for setting aside the sale,
whereas in the case in hand there is no
proof of deposition of amount by the
petitioners. It is further stated that only
moving the application to set aside the
sale within time is not sufficient to set
aside the sale until and unless it is
followed with the deposit of the amount.
In support of his submission he cited the
decision of this court i.e. Ghanshyam
Singh and others versus Divisional
Commissioner, Vindhyachal Division,
Mirzapur and others, reported in 2006
(100) RD 534. In this case this court held
that the application is a consequence of
the deposit and since no deposit under
Rule 285-H of the Rules had been made,
therefore, for this reason the application is
not maintainable.

4. On the other hand learned counsel
for the respondents submitted that through
the application the petitioners had shown
their intention to deposit the amount, but
until and unless they are permitted by the
Collector, there was no occasion for them
to deposit the same as the government
revenue is always deposited with the
Treasury. The Treasury does not accept
the amount unless it is verified by the
Revenue Authority and on moving their
application, the Revenue Authority did
not pass any order in the matter. He also
relied upon another judgment of this court
in his support i.e.Kewal Prasad versus
Bank of Baroda and others, reported in
2006 (3) AWC 2976, in which this court
after
considering
the
judgment
of
Ghanshyam Singh (Supra) held that
there was no explanation coming forth in
the counter affidavit by the respondents as
to why the petitioners' application had not
been disposed of before the expiry of
thirty days. This court further observed
that the respondents could not doubt any
order having been passed by the Revenue
Authority directing the petitioners and
permitting them to deposit the amount as
required under Rule 285-H.

5. He also raised the question on the
locus of the counsel of Review petitioners
with the submission that the counsel
different to the counsel appeared in the
writ petition cannot be permitted to argue
the review petition, as has been held by
the Hon'ble Supreme Court in the
following Cases:-

(1)
M.Poornachandran
and
another versus State of Tamil Nadu
and others, reported in (1996) 6 SCC
755.

(2) Tamil Nadu Electricity Board
and another versus N.Raju Reddiar
and another, reported in AIR 1997
Supreme Court 1005.
600 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

6. However, in reply Mr.Ratan Kant
Sharma, learned counsel for the review
petitioners submitted that he has taken
permission
from
the
counsel
who
appeared earlier in the writ petition to
argue the case may be oral, therefore, I do
not take objection raised by the learned
counsel for the respondents as serious
one.

7. Rule 285-H (1) of the Rules
speaks that any person whose holding or
other immovable property has been sold
under the Act may, at any time within
thirty days from the date of sale, apply to
have the sale set aside on his depositing in
the Collector's office.

8. Upon reading the aforesaid
provisions, I find that the application for
setting aside the sale has to be moved
within thirty days from the date of sale,
but it is not necessary that the application
must be followed with the deposit of the
dues, rather the deposition is a condition
precedent for setting aside the sale,
therefore, the dues necessarily have to be
deposited in the Collector's office before
setting aside the sale.

9. I am further of the view that once
the application for setting aside the sale is
moved, it has to be considered by the
Collector concerned. He may allow or reject
it. If the deposition is taken as a condition
precedent for moving the application, in the
result of the rejection of the application, the
amount deposited with the Collector has to
be returned to the defaulter, which would be
an useless formality for this purpose. I am
further of the view that the deposit of the
amount is required to be made only after
allowing the application, but necessarily
before setting aside the sale as once the
application is allowed, the defaulter is under
obligation to deposit the dues and thereafter
the Collector shall set aside the sale. In
contrary if even after allowing the application,
the defaulter failed to deposit the amount,
there is no reason to set aside the sale.

10. The language as couched in Rule
285-H is unequivocal as it gives right to
the person whose holding or immovable
property has been sold to apply within
thirty days from the date of sale for
setting it aside on his depositing in the
Collector's office. Thus, the intention of
the legislature is very clear as it gives
opportunity to the defaulter to move an
application for setting aside the sale by
offering to deposit the dues and on its
acceptance as well as making of such
deposit, the Collector shall pass the order
setting aside the sale.

11. Under the circumstances, I am of
the view that the deposition of the amount is
necessarily a condition precedent for setting
aside the sale, but not for moving the
application for setting aside the sale. The
argument as raised by the learned counsel
for the respondents/petitioners is worth to
be considered that unless the petitioners'
application is allowed and the Treasury
Form offering the amount to deposit in the
Treasury is verified by the Revenue
Authority, the same shall not be accepted by
the Treasury. It is not in dispute that in the
case in hand the petitioners moved the
application for setting aside the sale within
thirty days from the date of sale, but the
same was kept undisposed of, rather the
respondents proceeded to confirm the sale.

12. Therefore, I am of the view that it is
a clear violation of Rule 285-H on the part of
the respondents, which has been discussed in
the order passed by this court on 6th of May,
2010.
2 All] Basic Shiksha Adhikari Etawah Vs. Ram Shankar and Ors.
601

13. In the result, I do not find error
in the order. Consequently the Review
petition stands dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 438 of 2013

Basic Shiksha Adhikari, Etawah Appellant
Versus
Ram Shankar and Ors. ...Respondents

Counsel for the Appellant:
Sri K. Shahi, Sri Vishnu Kr. Singh

Counsel for the Respondents:
A.G., Sri P.P. Chaudhary
Sri A.K. Rai, Sri Sharad Chandra
Sri V.K. Singh

Code of Civil Procedure. - Section 100Second Appeal-by the Basic Education
officer-without seeking permission from
Secretary Basic Education-although before
trail Court as well as Lower Appellate
Court state Govt. was very well one of the
opposite
party-when
state
govt.
not
choose
to
file
Second
Appeal-Basic
Education officer working under control of
state authority- a govt. servant and officer
not working under Basic Education Boardprincipal secretary Basic Education to hold
enquiry and submit report within specified
period-appeal
dismissed
as
not
maintainable.

Held: Para-15
Let an inquiry be made by Principal
Secretary, Basic Education as to how the
present appellant has acted in this matter
and that too by engaging a counsel not
appointed by State of U.P. but by one
appointed by Basic Education Board. He
shall also make an inquiry to find out in
how many such matters, other Basic
Education Officers are behaving in similar
manner and how much funds from State
Exchequer, they have consumed, without
knowledge or permission from State of
U.P.

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

1. Heard Sri K. Shahi, learned
counsel for the appellant and Sri S.P.
Gupta, learned Advocate General assisted
by Sri P.P. Chaudhary, Advocate for
respondent no. 4.

2. This appeal has been preferred by
District Basic Education Officer, Etawah
against the judgments and decree dated
29.01.2010 passed in Original Suit No. 94
of 1988 and 17.01.2013 passed in Civil
Appeal No. 50 of 2011.

3. The suit was instituted by
respondents no. 1 and 2 impleading State
of U.P. through Collector, Etawah as
defendant no. 1, District Basic Education
Officer, Etawah as defendant no. 2 and
Sri Sant Vinoba Madhyamik Vidyalaya,
Jhindua, District Etawah, (hereinafter
referred to as the "institution") as
defendant no. 3.

4. The plaintiffs instituted aforesaid
suit
for
declaration
and
permanent
injunction against defendants. The suit
was decreed with the declaration that
defendants
shall
treat
the
date
of
appointment of plaintiffs in the institution
as 13.07.1977 and they are working as
permanent teacher since then and entitled
for all consequential benefits since
01.07.1985. The defendants were also
restrained
by
granting
permanent
injunction that they shall not interfere in
the functioning and working of plaintiffs.

5. Thereagainst it appears that the
State of U.P. as well as Basic Education