SARDAR NIRMAL SINGH (DEAD) THR. LRS.versusBHATIA SAFE WORKS & ANR.

                       [2016) 2 S.C.R. 183



         SARDAR NIRMAL SINGH (DEAD) THR. LRS.                      A
                               v.

                BHATIA SAFE WORKS & ANR.
                  (Civil Appeal No.1178 of2007)
                        MARCH 03, 2016                             B
       [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.]
      U.P. Zamindari Abolition of Land Reforins Rules, 1952 - rr.
285B and 285C - Property put for auction for realization of land
revenue - Auction sale made in favour of appellant - Challenge to, C
on the ground of non-compliance of the proper.procedure while
conducting the auction - Single Judge of the High Court ajfirining
the order of the Board of Revenue, set aside the auction sale made
in favour of the appellant - On appeal held: When steps are taken
for putting a property for auction for realization of land revenue,
they are required to be strictly guided by the Rules as the whole D
conduct of the auction is governed and controlled by the Rules -
An auction without following the rules is legally unacceptable and
also absolutely contrary to the fundamental principles of holding
auction - On facts, the c01i1pete111 authority did not follow the due
procedure as per Rules - Competent Authority to refimd the amount E
deposited by the appellant before the authority with 5% interest per
annum.
      Disposing of the appeal, the Court
       HELD: The Competent authority did not follow the due
 procedure as per Rules. Auction was held within one day after F
 the notice was issued. Rule 28SA to 28SC of the U.P. Zamindari
 Abolition of Land Reforms Rules, 1952 deal With the procedure
 for putting the property in auction. On a perusal of the said Rules,
 it is demonstrable that the proclamation has to be issued in a
·particular Form 34 and it is incumbent on the Collector to give
 the estimated value of the property calculated with the Rules in G
 Chapter XV of the Revenue Manual. It is submitted that there
 has been no estimation of the value and no notice was given to
 the respondent. The Board of Revenue has clearly ruled that the
 auction procedure has not been followed. The conclusion arrived
 at by the Board of Revenue ·is absolutely infallible. When steps H
                               183
184            SUPREME COURT REPORTS                       [2016] 2 S.C.R.


A are taken for putting a property for auction for realization of land
  revenue, they are required to be strictly guided by the Rules as
  the whole conduct of the auction is governed and controlled by
  the Rules, the authority conducting the auction must acquaint
  itself with every facet of the rules and proceed so that the matters
B are not procrastinated on such counts. An auction without
  following the rules is legally unacceptable and also absolutely
  contrary to the fundamental principles of holding auction. The
  authority holding the auction should bear in mind that his action
  has serious effect and, therefore, no impropriety or violation can
  be allowed to usher in. The Competent Authority is directed that
C the amount deposited by the appellant before the authority should
  be refunded with 5% interest per annum. [Paras 14, 151 [191-H;
  192-A-E, G]
           Ram Swaroop vs. Board of Revenue 1999 RD 291; Rao
           Mahmook Ahmad Khan through their L.R. vs. Ranbir
D          Singh & Ors. 1995 (2) SCR 230 : 1995 {4) Suppl. SCC
           275; Stale of Uttar Pradsesh & Ors. vs. Swadeshi Polytex
           Limited & Ors. (2002) 12 SCC 596; Ram Kishun & Ors.
           vs. State of Uttar Pradesh & Ors. 2012 (6) SCR 105 :
           (2012) 11 SCC 511;Manilal Mohan/al shah vs. Sardar
           Sayed Ahmed Sayed Mohmade AIR 1954 SC 349 : 1955
E
           SCR 108 - referred to.
                        Case Law Reference
      1999 RD 291              referred to.        Para4
      1995 (Z) SCR 230         referred to.        Para 9
      c2002) 12 sec 596        referred to.        Para9
 F
      2012 (6) SCR 105         referred to.        Para9
      1955 SCR 108             referred to.        Para 12
           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1178
      OF2007

 G         From the Judgment and Order dated 19.04.2005 in Civil Misc.
      Writ Petition No. 54478 of 2004 passed by the High Court of Uttar
      Pradesh at Allahabad
           Ms. Manjeet Chawla, Adv., for the Appellants.
           Ms. Indu Malhotra, Sr. Adv., Vinay Garg, Adarsh Upadhyay, Vikas
 H    Mehta, Advs., for the Respondents.
   SARDAR NIRMAL SINGH (DEAD) THR. LRS. v. BHATIA                        I 85
                   SAFE WORKS

      The Judgment of the Court was delivered by                          A
      DIPAK MISRA, J. I. The present appeal, by special leave, is
directed against the judgment and order of the learned single Judge of
the High CourtofJudicature at Allahabad passed in Civil Misc. No.54478
of 2004 whereby the said court has affirmed the order of the Board of
Revenue which had held that the auction sale made fo favour of the B
appellant was liable to be set aside as there had been non-compliance of
Rules 285B and 285C of the U.P. Zamindari Abolition of Land Reforms
Rules, 1952 (for short, 'the Rules') and also violations of the principles
conducting auction.
       2. The facts which are essential to be stated for adjudication of c
this appeal are that the Deputy Labour Commissioner passed an award
for a sum of Rs.2,08,565.67 against the respondent for non-payment of
dues to the Employees State Insurance Corporation (ES!). In pursuance
of the aforesaid award and keeping in view Section 45C of the
Employees State Insurance Act, I 948. the Regional Director of ES!
issued a recovery certificate to the Collector concerned for realization D
of the said amount as land revenue. After receipt of the said requisition,
the competent authority commenced the proceedings. On 24.11.1980,
auction notice was issued in respect of the property situated on plot
No.123/256 (47A), Factory Area, Fazalganj, Kanpur admesauring an
area about 667 sq. yards. The auction sale was conducted on 25 .11.1980 E
and the appellant was the sole bidder in the auction and his offer of
 Rs.50,000/- was accepted by the concerned Tehsildar.
       3. As per the conditions set out in the auction, the successful bidder
was required to deposit 1/4'" of the amount in cash and the balance 314'"
amount within 15 days. There was a postulate that no cheque would be F
accepted. Despite the aforesaid stipulation in the auction notice, the
appellant deposited a cheque for l/4•h amount in favour of the Tehsildar
and a cheque for the balance 3/4'h amount was deposited on 4.12.1980.
 Both the cheques were returned by the Tehsi ldar on 13.1.1981 indicating
that the Manager of the State Bank of Bikaner and Jaipur had refused
to give the certificate <if"good for payment" to the cheques. J'he said G
intimation was furnished to the appellant requiring him to submit a bank
draft for the amount immediately so that further action could be taken at
his end. As is evident, a sum of Rs.50,000/- was deposited by way of
bank draft drawn on the State Bank ofBikaner and Jaipur but the said
bank draft was also returned by orde~dated 2.12.1981 stating that there H
186               SUPREME COURT REPORTS                      [2016] 2 S.C.R.


A     was no account in the name of Tehsildar, Kanpur. Thereafter, the
      appellant deposited the amount in cash some time in December 1981,
      after expiry of almost one year.
             4. As the facts would exposit, the first respondent filed certain
      objections to the auction sale which were not accepted and the auction
B     was confirmed. The said confirmation of auction sale was challenged
      before the Additional Commissioner by way of a revision and the said
      authority declined to interfere. Being aggrieved by the order passed by
      the Additional Commissioner, the respondent filed a revision before the
      Board of Revenue and the revisional authority vide order dated
      05.08.1989, dismissing the revision opining that it was not maintainable.
c     The said order was assailed in a writ petition before the High Court. The
      writ Court noticed that the Board of Revenue had dismissed the revision
      without adverting to the merits solely on the ground that the revision
      petition was not maintainable. The High Court placing reliance on the
      Full Bench decision in Ram Swaroop vs. Board of Revenue' allowed
D     the writ petition and set aside the order dated 5.8.1989 by the Board of
      Revenue and remanded the matter to the revisional authority for
      adjudication on merits.
          5.After the remand, the Board of Revenue vide order dated
   6.8.2004 held that the plot in question was auctioned on 25.11.1980 and
 E 1/4'' of the amount was deposited by cheque which could not have been
   regarded as payment as per the rules; that from the letter dated 13 .1.1981
   by the purchaser to the Tehsildar that he wanted to pay the amount by
   bank draft it was clear that after 25.11.1980, that is, after the expiry of
   one and a half month a request had been made to deposit the amount by
   way of bank draft which is not as per rules; that after auction, 1/4''
 F amount ought to have been deposited by cash but was deposited through
   cheque which was impermissible; and that it was demonstrable from the
   file that the total amount had not been deposited. An addition to the
   aforesaid, it was also held that the publication in the newspaper alongwith
   the pamphlets proved that the publication was not made before the time
 G fixed, and there was no wide publicity. Taking into consideration both
   the aspects, the authority opined that the auction and the subsequent
   action were invalid. Resultantly, the revisional authority allowed the
   revision petition and remanded the case to the District Collector, Kanpur
   directing him to conduct a fresh auciion as per the rules.

 H    I   1999 RD 291
     SARDAR NIRMAL SINGH (DEAD) THR. LRS. v. BHATIA                               187
             SAFE WORKS [DIPAK MISRA, J.]

       6. The order passed in revision was called in question a writ petition     A
before the High Court and by the impugned order, as has been stated
earlier, the High Court has given the stamp of approval to the same.
       7. We have heard Ms. -Manjeet Chawla, learned counsel for the
appellant and Ms. lndu Malhotra, learned senior counsel along with Mr.
Jasvir Nayar, learned counsel for the respondent.                                 B
       8. It is submitted by learned counsel for the appellant that when he
had deposited the amount pursuant to the communication made by the
Tehsildar before the competent authority, there was acceptance of the
amount and, therefore, there was no justification on the part of the Board
of Revenue to nullify the auction on the ground that the entire amount            c
was not deposited, and the High Court has fallen into error by concurring
with the said view. It is urged by her that the Rules do not prescribe that
there should be deposition of the amount within a prescribed period by
way of casb but the authorities having been guided by the said concept
have annulled the auction as a consequence of which serious error has
crept in. That apart, it is argued by her that though the amount has been         D
deposited for last 35 years the appellant has not got back the money as
a result of which immense loss has been caused.
       9.Resisting the aforesaid submissions, it is urged by Ms. Indu
Malhotra, learned senior counsel for the respondent that the revisional
authority has allowed the revision on two counts, namely, (i) that the             E
procedure for auction had not been duly followed; and (ii) the amount,
as required under the Rules and also as per the auction notice, had not
been deposited and hence, no right had accrued to the appellant to claim
the benefit of the auction. Learned senior counsel would further urge
that auction notice was issued on )4J 1.1980 and the auction was held              F
on the next day which runs counter to the principles of holding auction
as laid down in the Rules. She has commended us to the authorities in
Rao Malmwok Altmad Kltan tltrouglt tlteir L.R. vs. Ranbir Singlt &
Ors.', State of Uttar Pradesh & Ors. vs. Swadesfli Polytex Limited
& Ors. 3 and Rum Kis/lun & Ors. vs. State of Uttar Pradeslt & Ors.'.
                                                                                  G
      I0. It is not in dispute that the deposit of the amount by the successful
bidder is required to be made as per the Rules. Rules 285D to 285G of
the Rules, being relevant, are extracted below:-
2
    1995 Supp. (4) sec 275
'(2002) 12 sec 596
• (2012) 11 sec 511                                                               H
188             SUPREME COURT REPORTS                         [2016] 2 S.C.R.



A           "285-D. The person declared to be the purchaser shall be required
            to deposit immediately twenty five per cent of the amount of his
            bid, and in default of such deposit the land shall forthwith be again
            put up and sold and such person shall be liable for the expenses
            attending the first sale and any deficiency of price which may
            occur on the re- sale which may be recovered from him by the
B
            Collector as if same were an arrear of land revenue.
            285-E. The full amount of purchase money shall be paid by the
            purchaser on or before the fifteenth day from the date of the sale
            at the district treasury or any sub-treasury and in case of default
            the deposit, after the expenses of sale have been defrayed
c           therefrom, shall be forfeited to Government and the property shall
            be re-sold and the defaulting purchaser shall forfeit all claims to
            the property, or to any part of the sum for which it may be
            subsequently sold.
            285-F. If the proceeds of the sale which is eventually made are
D           less than the price bid by such defaulting purchaser, the difference
            shall be recoverable from him as of it were an arrear of the revenue.
            285-G. No sale after postponement unqer Rule 285-A, 285-D or
            285-E in default of payment of the purchase money shall be made
            until a fresh proclamation has been issued as prescribed for the
 E          original sale."
          11. The said Rules had come up for interpretation in Rao Mallmook
      Ahmad Khan (supra) and a two-Judge Bench, scrutinizing the anatomy
      of the said Rules, especially the term "immediately", came to hold as
      follows:-
 F
            "9. Further the Rule 285-D provides resale of the property forthwith
            on the failure of the purchaser to deposit 25 per cent of the bid
            amount. The meaning of the word 'forthwith' is synonymous of
            the word immediately which means with all reasonable quickness
            and within a reasonably prompt time. It, therefore, necessarily
 G          follows that the intention of the Legislature is that as soon as it
            becomes known that the purchaser has failed to deposit 25 per
            cent immediately after he is declared as purchaser, the property
            shall be put to re-sale forthwith without any loss of time or
            postponement of the date ofre-sale. The provision has been made
            mandatory because ifthe property is not re- sold forthwith and on
 H
SARDAR NIRMAL SINGH (DEAD) THR. LRS. v. BHATIA                         189
        SAFE WORKS [DIPAK MISRA, J.]

  the same day but later on after a day or two, the sufficient number A
  of purchasers may not be fo1thcoming and the property may not
  fetch adequate and fair price to the prejudice of the judgment
  debtor. There is yet another reason for 1naking this provision
  mandatory and it is this that if on the failure of the purchaser to
  deposit 25 per cent of the bid amount immediately and on the day
                                                                         B
  the person is declared to be purchaser then the sale of the property
  will have to be postponed to some other date and according to the
  provisions contained in Rule 25-G re- produced in para 6 above,
  no sale after the postponement under Rule 285-D in default of
  payment of the purchase money shall be made until a fresh
   proclamation has been issued as prescribed forthe original sale. it C
   is to avoid this situation and the delay in the sale that a provision
   under Rule 285-D has been made mandatmy and on the failure of
  compliance of the same the sale becomes a nullity.
  10. The controversy whether the provisions of Order 21, Rule 84,
  85 and 86 are mandatory or not has been set at rest by this Court.    D
  The provisions of Order. Rule 84, 85 and 86 of the Code of Civil
  Procedure, as said earlier, are almost similar in terms to the
  provisions contained in Rule 285-D and 285-E of the Land Re-
  form Rules. This court in the case of Mani Lal Mohan Lal v. Syed
  Ahmad A.LR. 1954 S.C. 349 ruled as under:-
                                                                        E
     "Having examined the language of the relevant rules and the
     judicial decisions bearing upon the subject we are of the opinion
     that the provisions of the rules requiring the deposit of25 per
     cent of the purchase money immediately on the person being
     declared as a purchaser and the payment of the balance within
     15 days of the sale are mandatory and upon non-compliance F
     with these provisions there is no sale at all. The rules do not
     contemplate that there can be any sale in favour of a purchaser
     without depositing 25 per cent of the purchase money in the
     first instance and the balance within 15 days. When there is no
     sale within the contemplation of these rules, there can be no G
     question of material irregularity in the conduct of the sale. Non-
     payment of the price on the part of the defaulting purchaser
     renders the sale proceedings as a coinplete nullity. The very
     fact that the Court is bound to re-sell the property in the event
     of a default shows that the previous proceedings for sale are
                                                                        H
190             SUPREME COURT REPORTS                        [2016] 2 S.C.R.


A              completely wiped out as if they do not exist in the eye of law.
               We hold, therefore, that in the circumstances was no sale and
               of the present case there was no sale and the purchasers
               acquired no rights at all."'
            Interestingly, in the said case, the question arose whether the
B     amount could be deposited by cheque. Dealing with the said facet, it
      has been held thus :-
            "It, therefore, appears to us that Rule 285-D does not contemplate ·
            any payment by cheque but a cash deposit of 25 per cent of the
            bid amount has to be made in accordance with the requirement of
c           the rule, otherwise the very purpose of the mandatory rule 285-D
            would be frustrated and rendered nugatory. In these facts and
            circumstances we are of the view that deposit of 25 per cent of
            the bid amount by cheque will not be a valid tender within the
            meaning of the rule. This was also the view taken by a Division
            Bench of the Allahabad High Court in the case ofHira Lal (supra)
D           and the Learned Single Judge was not right in ignoring the said
            view by observing that it was obiter. The High Court of Madhya
            Pradesh in Ml s. Progressive Industrial Enterprises v. Bank of
            Baroda-A.LR. I 989 M.P. I 77 also expressed the view that deposit
            of 25 per cent of the bid amount by cheque which was not
 E          encashed on the date on which the person was declared purchaser
            but on a later date, there was no compliance of Order 21 Rule 84
            (C) C.P.C."
          12. In Swades/1i Poly/ex Limited (supra), a recovery certificate
   was issued by the Deputy Labour Commissioner and proceedings were
 F initiated under the Rules for recovery of the amount. It was contended
   before the competent authority that the property had been sold at a price
   below its market price. When the matter travelled to the High Court, it
   was held by the learned single Judge that there was no material on
   record to show that the appropriate procedure as prescribed in the Rules
   had been adopted. Analysing the rule position, the Court agreed with
 G the view expressed by the High Court on the said score. The issue
   arose whether Rule 2850 of the Rules had been complied with or not.
   The Court referred to the authority in Manila/ Mohan/al shah vs.
   Sardar Sayed Ahmed Sayed Mohma<f wherein it has been opined as
   under:-
 H    'AIR 1954 SC 349
   SARDAR NIRMAL SINGH (DEAD) THR. LRS. v. BHATIA                                191
           SAFE WORKS [DIPAK MISRA, J.]

       "Having examined the language of the relevant rules and the A
       judicial decisions bearing upon the subject we are ofopinion that
       the provisions of the rules requiring the deposit of 25% of the
       purchase-money immediately on the person being declared as a
       purchaser and the payment of the balance within 15 days of the
       sale are mandatory and upon non-compliance with these provisions
                                                                            B
       there is no saie at all. The rules do not contemplate that there can
       be any sale in favour of a purchaser without depositing 25% of
       the purchase-money in the first instance and the balance within
     - 15 days. When there is no sale within the contemplation of these
       rules, there can be no question, of material irregularity in the
       conduct of the sale. Non-payment of the price on the part of the c
       defaulting purchaser render_s the sale proceedings as a complete
       nullity. The very fact thatthe Courtis qound to re-sell the property
       in the event of a default shows that the previous proceedings for
       sale are completely wiped out as if they do not exist in the eye of
       law. We hold, therefore, that in the circumstances of the present
                                                                            D
       case there was no sale and purchasers acquired no rights at all."
        13. Relying on the same, the Court opined that the auction sale
could not be maintained. On the aforesaid analysis of the factual score
and the legal position, the appeal could have faced its inevitable fate,
that is, dismissal. However, Ms. lndu Malhotra, learned senior counsel,
however, harped on the fact that proper procedure was not at all followed        E
in the case while conducting the auction and the same has been gone
into by the Board of Revenue and, therefore, this Court may advert to
the same so that the authorities in future while conducting the auction
shall be bound to act in accordance with Rules. Learned senior counsel
has drawn our attention to a passage from the order passed by the Board
                                                                                  F
of Revenue. We think it appropriate to reproduce the opinion expressed
by the Board of Revenue in this context:-
      "lt is Clear froni the file that the total amount has not been deposited
      and the publication in the newspaper and the pa mph lets prove
      that the publication was not 1nade before the time fixed, hence
      the auction of the plot cannot be said to be in accordance with            G
      rules."
     14. From the aforesaid opinion, it is graphically clear that the
competent authority has not followed the due procedure as per Rules.
We have already indicated that the auction wits held within one day
                                                                                 H
192                SUPREME COURT REPORTS                        [2016] 2 S.C.R.


A     after the notice was issued. In this regard, we may fruitfully refer to the
      Rules dealing with sale of immoveable property. Rule 285A to 285C
      deal with the procedure for putting the property in auction. On a perusal
      of the aforesaid Rules, it is demonstrable that the proclamation has to be
      issued in a particular Form 34 and it is incumbent on the Collector to give
      the estimated value of the property calculated with the Rules in Chapter
B
      XV of the Revenue Manual. It is submitted by Ms. Malhotra, learned
      senior counsel that there has been no estimation of the value and no.
      notice was given to the respondent. As we find, the Board of Revenue
      has clearly ruled that the auction procedure has not been followed. To
      satisfy ourselves, we have adverted to the same and we find that the
c     conclusion arrived at by the Board of Revenue is absolutely infallible.
      We may hasten to add a word of caution for the authorities. When steps
      are taken for putting a property for auction for realization ofland revenue,
      they are required to be strictly guided by the Rules as the whole conduct
      of the auction is governed and controlled by the Rules. The authority
      conducting the auction must acquaint itself with every facet of the Rules
D
      and proceed so that the matters are not procrastinated on such counts.
      We say so as many a time the authorizes throw the rules out of the
      window and proceed at their own whim or caprice. Such an auction is
      legally unacceptable and also absolutely contrary to the fundamental
      principles of holding auction. The authority holding the auction should
 E    bear in mind that his action has serious effect and, therefore, no
       impropriety or violation can be allowed to usher in.
              15. Presently to the alternative submission of Ms. Manjeet Chawla.
      It is put forth by her that for no fault of the appellant, he has suffered. It
      is urged by her that once the money was accepted, he nurtured the hope
 F
      to get the property. In essence, her submission is that the appellant
      should be allowed to get back the money along with some interest as
      there is no justification for any forfeiture. Regard being had to the
      aforesaid submission and keeping in view the factual matrix in entirety,
      we direct that the amount deposited by the appellant before the authority
      should be refunded with 5% interest per annum. Be it clarified, we
 G    have fixed 5% interest per annum, regard being had to Rule 285L of the
      Rules. The competent authority shall compute the amount and make
      the refund within eight weeks hence.
            I 6. Consequently, with the aforesaid direction for refund, the appeal
      stands disposed of. There shall be no order as to costs.
 H    Nidhi Jain                                                 Appeal disposed of.