Full Judgment
S.U. Khan, J.
1. Agricultural land comprised in plot Nos. 453/0.202 hectares, 673/0.131 hectares and 674/0.069 hectares (total area 0.402 hectares) situate in village Sihaispar, Tehsil Bansgaon District Gorakhpur belonging to Smt. Shahnaz proprietor/partner of M/s. Shahnaz Textiles, Sihaispar, Bansgaon, Gorakhpur was auctioned in proceedings for recovery of loan which M/s. Shahnaz Textiles had taken from Uttar Pradesh Financial Corporation, (U.P.F.C. in short) Gorakhpur. The dues were recovered like arrears of land revenue. Auction took place on 30.5.2002 in which petitioner was highest bidder. His bid was of Rs. 1,07,000. He deposited the entire amount within time prescribed by relevant rules. Sale was confirmed by Sub-Divisional Officer (S.D.O. in short) on 8.6.2002, i.e., within thirty days from the date of sale. Petitioner deposited 1/4th of the amount for which he had purchased the property on the date of sale, i.e., 30.5.2002 and remaining 3/4th of the amount was deposited on 8.6.2002. Auction Officer/Naib Tehsildar on 8.6.2002 gave a report that entire amount had been deposited by the petitioner and that earlier auction was held twice but no one turned to bid. Naib Tehsildar recommended for acceptance of the auction sale. Tehsildar also made similar recommendation and S.D.O. on 8.6.2002 passed one word order 'accepted'. It appears that in the proclamation of sale the estimated value of the property was shown to be Rs. 2,49,000. Thereafter on 10.7.2002 U.P.F.C., i.e., respondent No. 4, filed objections before the Commissioner under Rule 285-I of U.P.Z.A.&L.R.; Rules. The main objection was that sale could legally be confirmed only after thirty days but in-fact it had been confirmed only after nine days hence, it was illegal and void. Some minor irregularities in the sale were also pressed into service and it was also stated that sale consideration was inadequate. It appears that on 26.6.2002, respondent No. 4 U.P.F.C. had filed some objections before S.D.O. also and the debtor M/s Shahnaz Textiles had also filed some objections before S.D.O. on 18.6.2002. Objections before Commissioner were registered as Sale Petition/ Objection No. 159/G of 2002, Manager, U.P.F.C. v. State of U.P. and Ors. Commissioner, Gorakhpur Division, Gorakhpur through order dated 31.3.2004 allowed the objections, set aside the auction sale and its confirmation dated 30.5.2002/8.6.2002 and the matter was remitted to S.D.O. for disposal in accordance with observations made in the earlier part of the order.
2. The sole ground on which the Commissioner set aside the sale was that the sale had been confirmed before the expiry of thirty days.
3. Rules 285-I and 285J of U.P.Z.A. & L.R. Rules are quoted below-
'285-I (i) At any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it : but no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.
(ii) [ }................not quoted
(iii).......................not quoted
['285J. 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.]
4. In view of Rule 285J it is clear that auction sale cannot be confirmed before thirty days and the order dated 8.6.2002 passed by S.D.O. accepting the sale, if it amounts to confirmation of sale, was bad in law. However, if confirmation of sale is illegal but there is no illegality in the sale then only confirmation of sale order is to be set aside and not the sale itself. If the only defect in the confirmation of sale order is that it has been passed before time then the proper course is to set aside confirmation of sale order and to direct the authority concerned (S.D.O.) to pass fresh confirmation of sale order if thirty days have expired In the instant case thirty days from the sale expired on 30.6.2002 hence instead of setting aside the sale the proper course for the Commissioner was to set aside the order of confirmation of sale and direct the S.D.O. to pass fresh order of confirmation of sale.
5. As far as remand of the matter by Commissioner to S.D.O. is concerned it was utterly without jurisdiction. While hearing and deciding objections under Rule 285-I of U.P.Z.A.&L.R.; Rules, the Commissioner acts as an original authority/Court and not as appellate or revisional Court/authority. Under the relevant rules particularly Rules 285A to 285N Collector or S.D.O. has got no jurisdiction to entertain any objections except application for setting aside the sale on depositing the arrears, 5% of the purchase money and cost of the sale under Rule 285H. Objections regarding any material irregularity or mistake in publishing or conducting, the sale can be entertained and decided only and only by Commissioner.
6. However, exercising powers under Article 227 of the Constitution of India I asked the learned counsel for the petitioner as to whether petitioner was ready to offer higher amount for the property purchased by him. On 13.9.2004 learned counsel for the petitioner stated that as against the amount of Rs. 1,07,000 for which petitioner had purchased the property, petitioner was ready to offer Rs. 2 lacs. On 29.9.2004 when the matter was finally heard and judgment was reserved, learned counsel for the petitioner enhanced the offer to Rs. 2,25,000.
7. Accordingly, writ petition is allowed. Impugned order dated 31.3.2004 passed by the Commissioner setting aside the sale is quashed. Petitioner is directed to deposit the balance amount of Rs. 1,18,000 before S.D.O. within two months from today. If the said amount is deposited within two months then fresh order of confirmation of sale shall be passed by S.D.O.
8. For a period of two months property in dispute shall not be re-auctioned. If within two months the amount of Rs. 1,18,000 is not deposited by the petitioner then this order shall stand automatically vacated.