# Usmani v. C.B.I. reported in 2006(2)

- **Citation:** (2006) 3 ILRA 1281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-31
- **Case number:** Civil Misc. Writ Petition No. 282 of 1999
- **Bench:** R.P. Mishra, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usmani-v-c-b-i-reported-in-2006-2-40704
- **Pages:** 9

## Headnote

Sri V.B. Singh
Sri U.P. Singh
Sri D.K. Pandey
Sri Manoj Kumar
Sri A.K. Rathore
Sri C.S. Singh
Sri Vimlesh Srivastava

Constitution
of
India,
Article
226Recovery
of
loan
for
purchase
of
Trakker- not under state sponsored
scheme-cannot be recovered as arrears
of land revenue.
3All] Kewla Prasad V. Bank of Baroda and others 1281
Held- Para 35

The
last
submission
made
by
Shri
Radhey
shyam
has
also
to
be
countenanced. Relying on the decision of
the Apex Court in the case of Ekbal Nasir
Usmani Vs. C.B.I. reported in 2006(2)
Alld. Daily Judgements, 603 it has been
urged that the loan, which had been
advanced to the petitioner, was not
under any State Sponsored Scheme and
therefore, it could be recovered as
arrears of land revenue. The decision
relied on by the learned counsel for the
petitioner
clearly
supports
his
submission
and
therefore,
the
writ
petition even otherwise can succeed on
this ground as well. The loan was
admittedly advanced for the purchase of
a vehicle, which was not an agricultural
loan and appears to be according to the
facts disclosed in the counter affidavit of
the bank, not a loan under any State
Sponsored Scheme.
Case law discussed:
2006(2) ADJ-603

U.P.2A 8C LR Rules- 285-H-(C)-Objection
filed within 30 days from the date of
auction
sale-
remained
pending
till
confirmation
of
sale-malafide-illegalcontrary to law.

Held-Para 30

The non-disposal of the petitioner's
application within 30 days, therefore,
appears to be a malafide act on the part
of the respondent nos. 2 to 5 who some
how the other wanted to confirm the
auction in favour of the respondent
no.63. The process adopted by the
respondent nos. 2 to 5 was, therefore,
untenable and is contrary to the law laid
down in the case of Ghanshyam (supra)
and which squarely applies on the facts
of this case.
Case law discussed:
1999 RD 203
AIR 1990 SC-219

## Text

1280 INDIAN LAW REPORT ALLAHABAD SERIES [2006
have to be decided on merits. This is also
clear from the fact that it is only when an
order of abatement is passed that the suit
abates.
There
being,
no
automatic
abatement, it cannot be said that there was
any automatic revival of the suit in
consequence of the order of restoration.
The order of the restoration having been
put into jeopardy in the revision, it cannot
be said that the revision would become
infructuous in the absence of anything to
the contrary in Section 5 (2). The view
that I take is also in line with the decision
in Sheo Poojan Singh's case (supra) cited
by the petitioner's counsel.

5. Counsel for the respondents relied
upon a Single Judge decision of this court
in Smt. Dhanpati (D) Through L.R. Vs.
Board of Revenue & Others 2003 (5)
AWC, 4296. In that case a compromise
decree was set aside on an application
filed by one of the parties. Against that
order a revision was filed in which
operation of the order restoration was
stayed and also further proceedings in the
suit. On these facts this court took further
proceedings in the suit. On these facts this
court took the view that as the operation
of the order of restoration had been stayed
and also the proceedings, the suit did not
revive and consequently there was no
abatement on account of notification of
consolidation operations. It is no doubt
true that this court expressed the views
that if no stay order is passed in the
revision against the restoration order the
suit would revive in consequences of the
order of restoration and would abate
under section 5 (2) (a). However the ratio
of the case only is that if there is an order
in the revision against the restoration
order staying the operation of the
restoration order the suit would not revive
and the subsequent issuance of the
notification under Section 4 of the Act
would have no effect on the pending
revision, which would not abate. This
view does not affect the view that I am
taking.
The
case
is
therefore
distinguishable. For these reasons, the
writ petition is allowed. The orders dated
15.4.04 and 28.2.06 passed by the Board
of Revenue are aside. The Board of
Revenue is directed to decide the revision
on merits expeditiously and if possible
within six months from the date a
certified copy of this order is produced
before it.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2006

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

Civil Misc. Writ Petition No. 282 of 1999

Kewla Prasad

...Petitioner
Versus
Bank of Baroda & others ...Respondents

Counsel for the Petitioner:
Sri S.C. Dwivedi
Sri Radhey Shyam
Sri R.S. Dwivedi

Counsel for the Respondents:
Sri V.B. Singh
Sri U.P. Singh
Sri D.K. Pandey
Sri Manoj Kumar
Sri A.K. Rathore
Sri C.S. Singh
Sri Vimlesh Srivastava

Constitution
of
India,
Article
226Recovery
of
loan
for
purchase
of
Trakker- not under state sponsored
scheme-cannot be recovered as arrears
of land revenue.
3All] Kewla Prasad V. Bank of Baroda and others 1281
Held- Para 35

The
last
submission
made
by
Shri
Radhey
shyam
has
also
to
be
countenanced. Relying on the decision of
the Apex Court in the case of Ekbal Nasir
Usmani Vs. C.B.I. reported in 2006(2)
Alld. Daily Judgements, 603 it has been
urged that the loan, which had been
advanced to the petitioner, was not
under any State Sponsored Scheme and
therefore, it could be recovered as
arrears of land revenue. The decision
relied on by the learned counsel for the
petitioner
clearly
supports
his
submission
and
therefore,
the
writ
petition even otherwise can succeed on
this ground as well. The loan was
admittedly advanced for the purchase of
a vehicle, which was not an agricultural
loan and appears to be according to the
facts disclosed in the counter affidavit of
the bank, not a loan under any State
Sponsored Scheme.
Case law discussed:
2006(2) ADJ-603

U.P.2A 8C LR Rules- 285-H-(C)-Objection
filed within 30 days from the date of
auction
sale-
remained
pending
till
confirmation
of
sale-malafide-illegalcontrary to law.

Held-Para 30

The non-disposal of the petitioner's
application within 30 days, therefore,
appears to be a malafide act on the part
of the respondent nos. 2 to 5 who some
how the other wanted to confirm the
auction in favour of the respondent
no.63. The process adopted by the
respondent nos. 2 to 5 was, therefore,
untenable and is contrary to the law laid
down in the case of Ghanshyam (supra)
and which squarely applies on the facts
of this case.
Case law discussed:
1999 RD 203
AIR 1990 SC-219

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

1. The petitioner, a villager and a
farmer has filed this writ petition to save
his prized possession of a small parcel of
land
by
filing
this
writ
petition,
challenging the auction proceedings in
favour of the respondent no.6 Rama Kant
Patel, which property had been auctioned
against a loan advanced by the Bank of
Baroda to the petitioner for the purchase
of a vehicle (make trekker of Hindustan
Motors Ltd.) bearing Registration No.
UGV 521 way back in the year 1986.

2. The loan was approximately
Rs.70,000/-
which
the
petitioner
attempted to return by making certain
initial deposits but later on defaulted as a
result whereof the respondent bank
proceeded to issue a recovery certificate
addressed to the Collector for recovery of
unpaid dues from the petitioner as arrears
of land revenue under the provisions of
U.P. Zamindari Abolition and Land
Reforms Act, 1950. The recovery appears
to have been initiated as per the terms of
the agreement with the bank.

3. The agricultural land of the
petitioner appears to have been mortgaged
with the bank being plot no.212 area
0.656 hectares and plot no. 898 area 0.113
hectares situated in Village Badhwa
Tahsil
Meja
District
Allahabad.
According to the records, which have
been produced before the Court pertaining
to the auction proceedings, plot no.898 is
situate beside the road and is a prime
land.

4. The default appears to have been
made way back in the year 1994
whereupon the certificates of recovery
1282 INDIAN LAW REPORT ALLAHABAD SERIES [2006
was issued by the bank on 7th Jan., 1994
for a sum of Rs.1,56,990/-

5. The revenue authorities after
receipt of the aforesaid certificates of
recovery from the bank issued the
relevant
proclamations
contained
in
Zamindari Abolition form Nos. 69,70,73
and 74 on 6.2.97, 11.2.97, 1.3.97 and
12.3.97
respectively
whereby
the
aforesaid two plots of the petitioner was
proposed to be auctioned. The auction
was to be held in terms of Section 284 of
the U.P. Zamindari Abolition and Land
Reforms Act, read with rules 281 to 285E. Rule 282 contains the provisions for
issuance of proclamation of sale in Z.A.
Form No.74 Rule 283 clearly provides
that the Collector shall state the estimated
value of the property to be calculated in
terms of the revenue manual.

6. After the proclamation of sale had
been issued it appears that the petitioner
filed a suit being Suit No. 629 of 1997 as
a result whereof the auction came to be
postponed but the suit was ultimately
dismissed on 15.09.98 and the appeal
preferred by the petitioner is also
indicated to have been dismissed. The
date of auction thereafter was fixed on
22.7.98. The respondent no.6 Rama Kant
Patel was indicated as the higher bidder as
his bid was of Rs.1,23,000/- I appears
certain objections were raised with regard
to the inadequacy of the bid amount and
certain reports were called for, which
indicated the inadequacy of the amount,
as a result whereof the bid of Rama Kant
Patel was rejected on 26.8.98. The
petitioner it appears found some breathing
time and subsequently utilize the same by
making good the deposits which were due
against him in order to avoid any further
trouble of auction. From the records And
from the affidavits exchanged between
the parties it appears that the petitioner
deposited a sum of Rs.1,15,000/- on
31.8.98 and a further sum of Rs.10,000/-
on 26.9.98

7. Thereafter it appears, that since
the amount due against the petitioner
stood reduced up to the aforesaid extent, a
fresh auction notice was issued against the
petitioner on 29.10.98 which indicated a
realization of the principle amount of
Rs.32,990/- plus interest and recovery
charges.

8. From the records there appears to
be some difference in the amount as
projected by the bank. However from the
note sheet of the records maintained by
the Sub Divisional Officer and the
Tehsildar Meja it appears that out of the
total
balance
of
Rs.1,57,990/-
an
adjustment was made of the amount
deposited by the petitioner referred to
herein above which was Rs.1,25,000/- and
the balance of Rs.32,990/- was sought to
be recovered through the auction. This is
evident from the orders contained on
record dated 31.8.98 and 26.9.98 by the
order dated 26.9.98 the next date for
auction was fixed as 29.10.98. A very
strange noting appears in the file below
the order-dated 26.9.98. The said noting
appears to have been prepared by some
official which states that today i.e. on
29.10.98
in
spite
of
repeated
announcements being made no one turned
up and as such the next date fixed for
auction was 2.12.98. From a perusal of
the records which have been produced by
the learned standing counsel, it is evident
that the order was issued on 26.9.98 under
the signature of the sub Divisional
Officer, Meja and countersigned by the
Tahsildar Meja fixing 29.10.98 as the date
3All] Kewla Prasad V. Bank of Baroda and others 1283
of auction and the auction officer, who
was to conduct the auction, was also
nominate, namely the naib Tahsildar Lal
Tara. The note which has been prepared
by the said auction officer and referred to
herein above, postponing the date of
auction to 2.12.98, does not indicate any
approval
from
the
Sub
Divisional
Magistrate or Tahsildar as was done in the
past and the date endorsed by the said
auction officer in the aforesaid note is
26.9.98. The aforesaid note, therefore,
appears to have been manipulated and the
date 26.9.98 clearly indicates that the note
was manipulated with some motive in as
much as if the note was being prepared on
29.10.98, the signature below the said
note could not have been made on
26.9.98. There is a separate sheet of
paper, thereafter in records, which is an
order of the Sub Divisional Magistrate
and Tehsildar dated 29.10.98 fixing date
of auction on 2.12.98. The manner in
which the order sheet has been maintained
causes a serious doubt on the procedure
adopted by the respondents in view of the
facts indicated herein above and the
auction cannot be said to have been
conducted
fairly.
The
aforesaid
apprehension is reaffirmed on account of
the fact that on the date of fresh auction
i.e. on 2.12.98 the same Rama Kant Patel
again turned up to be the highest bidder
who offered a sum of Rs.2,18,000/- which
bid came to be accepted and has given
rise to the present proceedings.

9. The petition was initially filed
with a prayer of mandamus directing the
respondents to permit the petitioner to
deposit the entire amount which was due
against him under Rule 285-H but later on
the petition was amended for quashing of
the order dated 4.1.99 passed by the
respondent no.3 Sub Divisional Officer,
rejecting the application of the petitioner
for making the deposit under Rule 285-H
and also simultaneously confirming the
auction in favour of the respondent no.6.

10. All the respondents have filed
their counter affidavits to which a reply
has been filed by the petitioner.

11. We have heard Shri Radhey
Shyam learned counsel for the petitioner,
learned
standing
counsel
for
the
respondent nos.2 to 5 and the learned
counsel for the respondent no.6.

12. We have also perused the
counter affidavit filed on behalf of bank
on whose behalf Shri V.B. Singh had
appeared on earlier occasions but nobody
turned up on its behalf when the matter
was finally heard on the date when
judgement was reserved.

13. Shri Radhey Shyam learned
counsel for the petitioner has urged that
the order dated 4.1.99 is erroneous in law
in as much as the same is in violation of
the provisions of Rule 285-H of the Z.A.
and L.R. Rules, 1951. He further contends
that the entire recovery proceedings stand
vitiated
in
view
of
the
recent
pronouncement of the Apex Court to the
effect that unless and until the money
advanced by the bank is under a State
Sponsored Scheme, the same could not be
realized as arrears of land revenue. He
further contends that the respondents
without disposing of the application and
permitting the petitioner to deposit the
entire amount under a fresh auction notice
dated 29.10.98; they could not have
proceeded to conform the auction in
favour of the respondent no.6. He further
submits that the auction has been
confirmed
without
recording
any
1284 INDIAN LAW REPORT ALLAHABAD SERIES [2006
satisfaction as contemplated under Rule
285-J and lastly that the respondents have
proceeded to sell the entire property
mortgaged when it was not necessary in
view of the fact that the petitioner had
bonafidely deposited a major part of the
amount sought to be recovered as a result
whereof a sum of Rs.32,990/- plus other
expenses was only required to be
recovered. According to Shri Radhey
Shyam even if it was necessary to proceed
with the auction then the respondent
revenue
authorities
ought
to
have
considered this aspect of this matter
before issuing a fresh proclamation on
29.10.98.

14. He has supplemented the
aforesaid arguments by futher stating that
Rama Kant Patel respondent no.6 was a
long time political rival of the petitioner
on account of the contest to the election of
the office of Village Pradhan and was
trying
to
corner
the
petitioner by
humiliating him and seeking to usurp the
petitioner's property by motivating and
manipulating the auction in his favour.

15. From a perusal of the counter
affidavit of the bank it appears that the
bank is pressing for the amount which
according to them has again swelled up
and as such it was urged on behalf of the
bank that the amount realized from fresh
auction proceedings be remitted to it
without any further delay in order to clear
all the dues outstanding against the
petitioner.

16. We have also perused the entire
records of the auction proceedings in
respect of the property in dispute as
produced by the learned standing counsel.
We have also perused the counter
affidavit of Ram Datt filed on behalf of
the respondent nos. 2to 5.

17. Learned standing counsel for the
respondents has urged that since the
petitioner failed to make the deposits as
required under rule 285-H therefore, the
auction proceedings cannot be set aside
and as such have been rightly confirmed.

18. Learned standing counsel has
pointed out that an undated application is
on record stated to have been signed by
the petitioner praying for setting aside the
sale on which an order was endorsed, on
17.12.98 by the S.D.M. Meja.

19. We have perused the said order
endorsed on the said application. The
application is undated.

20. Shri Radhey Shyam learned
counsel for the petitioner has out rightly
denied the moving of any such application
on behalf of the petitioner and it has been
urged that it bears the forged signatures of
the petitioner.

21. Even assuming for the sake of
arguments that such an application was
moved, the order endorsed thereon dated
17.12.98 by the Sub Divisional Officer
indicates that the application shall be kept
on record and the details of account shall
be obtained from the bank by the
concerned official who had been called
upon by the Sub Divisional Officer to do
so. Neither the order sheet nor the records
indicate any attempt made by the official
to have complied with the aforesaid order
stated to have been endorsed on 17.12.98.

22. The petitioner contends that the
only application moved by him for setting
aside the certificate under Rule 285-H
3All] Kewla Prasad V. Bank of Baroda and others 1285
was on 21.12.98 before the District
Magistrate
who
marked
the
said
application to the A.D.M (Finance),
which in turn was marked to the Sub
Divisional Magistrate, Meja respondent
no.3 take appropriate action in the matter.
The Sub Divisional Magistrate appears to
have directed the officer subordinate to
him to place the said application on
record on 22.12.98.
23. The date of auction was 2.12.98
and as such both the applications referred
to herein above were well within the time
prescribed under Rule 285-H. A perusal
of the endorsement made on both these
applications do not indicate any direction
or any order by the Sub Divisional
Magistrate or the Tehsildar directing the
petitioner or permitting him to deposit the
amount referred to therein.

24. The contention of the learned
standing counsel and the learned counsel
for the respondent no.6 is that both the
applications stood rightly rejected by the
order dated 4.1.99 as no deposits had been
made by the petitioner nor the receipt of
any such deposit accompanied the said
application as required under Rule 285-H.
In these circumstances, it has been urged
that the non-deposit of the amount under
Rule 285-H disentitles the petitioner to
get his claim considered for setting aside
the sale.

25. In order to appreciate the
aforesaid contention, Rule 285-H is
quoted herein below:

"285-H.(1)
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-
(a) or payment to the purchaser, a
sum equal to 5 percent of the purchase
money; and
(b) for payment on account of the
arrear, the amount specified in the
proclamation in Z.A. Form 74 as that for
the recovery of which the sale was
ordered, less any amount which may,
since the date of such proclamation of
sale, have been paid on that account and
(c) The costs of the sale
On the making of such deposit, the
Collector shall pass an order setting the
sale:

Provided that if a person applies
under the 285-I to set aside such sale, he
shall not be entitled to make an
application under this rule."

26. A perusal of the said rules,
leaves no room for doubt that the
certificate will be set aside only after the
amount referred to therein is deposited.
However, the rule requires moving of an
application followed by deposit to be
made as indicated therein.

27. Shri Radhey Shyam learned
counsel for the petitioner relying on the
decision of this Court in the case of
Ghanshyam Vs. Addl. Commissioner,
reported in 1991 Rd 203 has urged that
the condition precedent is that an
application shall be moved within 30 days
of the date of auction. He further contends
that the aforesaid decision clearly holds
that the actual deposit need not be made
within 30 days.

28. We have perused the aforesaid
judgement of the learned single Judge and
we clearly find that the view expressed
therein is inconformity with law. The
decision in para 6 states thus ".....the
person can only express willingness and
1286 INDIAN LAW REPORT ALLAHABAD SERIES [2006
make offer to deposit but no deposit can
be made unless an order to that effect is
passed by the Collector."

29. The court went on to hold that a
person cannot be allowed to suffer
because of inaction or mistake of the
authorities.

Learned standing counsel and the
learned counsel for the respondent no.6
could not point out any order having been
passed by the Sub Division Magistrate or
any other authority for that matter,
directing the petitioner and permitting
him to deposit the amount as required
under Rule 285-H. The respondents,
therefore, have failed to comply with the
provisions of law and it appears that the
same was done deliberately in order to
allow the period of 30 days to lapse in
order to confirm the sale in favour of the
respondent
no.
6.
The
procedure
therefore, having not been followed and
the petitioner having been not allowed to
make the deposit by a specific order, it
was not open to the Sub Divisional
Officer to have rejected the application of
the petitioner after the expiry of 30 days
on 4.1.99. The Sub Division Magistrate
has no where indicated any reason for not
having allowed the petitioner to have
deposited the amount either in the alleged
order dated 17.12.98 or in the order dated
4.1.99. There is no explanation coming
forth in the counter affidavit of the
respondent nos. 2 to 5 as to why the
petitioner's application had not been
disposed of before the expiry of 30 days.
In the absence of any such explanation the
only inference, which can be drawn, is
that the petitioner was denied the right to
get the sale set aside even though he had
filed the application well within time. The
inaction on the part of the respondent
revenue authorities by not passing any
order permitting the petitioner to deposit
the amount with the respondents clearly
indicates a clear lapse on their part for
which the petitioner cannot be penalized.

30. The non-disposal of the
petitioner's application within 30 days,
therefore, appears to be a malafide act on
the part of the respondent nos. 2 to 5 who
some how the other wanted to confirm the
auction in favour of the respondent no.63.
The process adopted by the respondent
nos. 2 to 5 was, therefore, untenable and
is contrary to the law laid down in the
case of Ghanshyam (supra) and which
squarely applies on the facts of this case.

31. The stand taken by the
respondents, however, that the petitioner
did not make the deposit cannot be
accepted as the petitioner was clearly
denied the aforesaid opportunity by a
deliberate inaction on the part of the
respondent nos. 2 to 5.

32. The next issue raised by Shri
Radhey Shyam is that no satisfaction was
recorded by the Sub Division Magistrate
as per Rule 285-J before proceeding to
confirm the auction in favour of the
respondent no.6 on 4.1.99. A perusal of
the order dated 04.1.99 which is endorsed
on the file in the records produced before
us does not indicate any such deliberation
by the Sub Division Magistrate. The
order, therefore, confirming the auction in
favour of the respondent no.6 cannot be
sustained in view of law laid down by this
Court in the case of Thakurji Maharaj
Vs. collector reported in 1991 Rd 203
(Hindi Section). The aforesaid view has
been further endorsed by the Apex Court
in the case of Smt. Shanti Devi Vs. State
of U.P., 1997 Rd 583. A perusal of the
3All] Kewla Prasad V. Bank of Baroda and others 1287
two decisions clearly indicate that an
auction cannot be confirmed unless and
until the Sub Division Magistrate records
a clear finding about the satisfaction in
respect of the compliance or otherwise of
the provisions of Section 154. In the
instant case, there is no such satisfaction
recorded
and
therefore,
the
order
confirming
the
sale
on
4.1.99
is
unsustainable on this score as well.

33. The third issue raised by Shri
Radhey
Shyam
also
deserves
consideration
which
is
that
the
respondents after having taken a decision
to issue a fresh auction notice upon a
deposit of Rs. 1,25,000/- having been
made by the petitioner, the same could
have been proceeded after a consideration
of the fact as to whether it was necessary
to put to auction the entire mortgaged
property
for
satisfying
the
reduced
amount. It is evident that the amount
according to the fresh auction notice stood
considerably reduced as is evident from a
perusal of the Z.A. Form No. 74 dated
29.10.98

34. Shri Radhey Shyam learned
counsel for the petitioner is right in his
submission by placing reliance on the
decision of the Apex Court in the case of
A. Narriya Vs. M. Subbarao reported in
AIR 1990 Sc 219. The Apex Court in the
said decision has clearly indicated that the
tendency to blind foldedly sell the entire
property mortgaged without assessing the
necessity of doing so, would be sufficient
to set aside the sale proceedings. The said
decision clearly supports the stand taken
by the petitioner in the facts of the present
case as well, in as much as once the
amount was considerably reduced on
account of the bonafide attempts made by
the petitioner in depositing a substantial
amount of money as is evident from the
records then the respondents should have
assessed the necessity of putting the entire
property to auction before issuing of fresh
auction notice. The aforesaid exercise
does not appear to have been under taken
and the fresh auction notice was again
issued in a cyclostyled fashion which
action cannot be sustained in law.

The writ petition, therefore, deserves
to succeed on the ground as well.

35. The last submission made by
Shri Radhey shyam has also to be
countenanced. Relying on the decision of
the Apex Court in the case of Ekbal Nasir
Usmani Vs. C.B.I. reported in 2006(2)
Alld. Daily Judgements, 603 it has been
urged that the loan, which had been
advanced to the petitioner, was not under
any
State
Sponsored
Scheme
and
therefore, it could be recovered as arrears
of land revenue. The decision relied on by
the learned counsel for the petitioner
clearly supports his submission and
therefore, the writ petition even otherwise
can succeed on this ground as well. The
loan was admittedly advanced for the
purchase of a vehicle, which was not an
agricultural loan and appears to be
according to the facts disclosed in the
counter affidavit of the bank, not a loan
under any State Sponsored Scheme.

36. Thus on all scores it is evident
that the auction of the petitioner's
agricultural land was carried out unfairly
and was in violation of law as recorded
herein above.

37. The writ petition, therefore, must
succeed
and
accordingly
the
order
rejecting the application of the petitioner
for depositing the amount as required
1288 INDIAN LAW REPORT ALLAHABAD SERIES [2006
under Rule 285-H as also the order
confirming the auction in favour of the
respondent no.6 dated 4.1.99 is quashed.

38. The writ petition succeeds and is
allowed. Since we have found the auction
proceedings to be in violation of law,
therefore, the same also stands set aside.
The respondent no.6 dated 4.1.99 is
quashed.
39. However, before parting with the
case we would observe that the petitioner
should
immediately
approach
the
respondent bank and negotiate to clear all
the entire dues out standing against the
petitioner so that the petitioner's property
may again not receive the same fate at the
hands of the respondents as has happened
in the past. However, in the event the
petitioner fails to clear all the dues then it
shall be open to the respondent bank to
recover the amount keeping in view of the
law referred to herein above in the case of
Ekbal Nasir Usmani Vs C.B.I.(supra) and
the other decisions in this respect
pronounced by the Apex Court.

Writ Petition is allowed. No orders
as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.5.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Application No. 5169 of
2006

Gulzar Ahmed and others
...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri V. P. Srivastava
Alpana Dwivedi

Counsel for the Opposite Parties:
A.G.A

Code
of
Criminal
Procedure-S.482Quashing of charge sheet-offence under
section 147/148/149/307 IPC-On the
ground-the matter has been referred to
CBCID
who
had
completed
the
investigation- but the submission of final
report has been stayed by High courtcognizance taken by the C.J.M.-held
proper-entrusting the matter for further
investigation by CBCID-its report cannot
be ground for Quashing the criminal
proceeding.

Held- Para 5

Therefore, on the basis of entrusting the
matter to further investigation or its
report shall not be any ground for setting
the order of cognizance or quashing the
criminal
proceedings.
Therefore,
the
prayer
for
quashing
the
criminal
proceedings and the impugned orders
dated 14.9.05 and 28.2.06 is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri V.P. Srivastava, Senior
Advocate assisted by Alpana Dwivedi,
learned counsel for the applicants and the
learned A.G.A.

2. This application has been filed by
the applicants Gulzar, Ikrar, Arif Ali,
Ahmad Ali, Hazi Mustaq Ali Khan,
Mohd. Yaseen alias Jaggu, Mihd. Shakeel
Khan alieas Phool Miyan with a prayer
that the proceedings of case no. 2069 of
2005 State Vs. Gulzar and others arising
out of the charge sheet submitted in case
Crime No. 343 of 2005 under sections
147, 148,149,307 and 302 I.P.C. P.S.
Bhongaon district Mainpuri, pending in
the court of learned C.J.M. Mainpuri and