Gaitri Devi Vs. Commissioner, Varanasi Division and anr. - Court Judgment

Excerpt:
- - in pursuance of the aforesaid recovery proceedings, an auction sale had actually taken place on february 4, 1986. the highest bidder at the auction was one sri shiv kumar, who, on demand, failed to deposit one-fourth of the amount of the bid.r.r. misra, j. 1. a certificate for recovery of estate duty to the extent of rs. 8,68,725 was received by the collector, varanasi, against the petitioner, smt. gaitri devi, who is the owner of a house situate in mohalla habibpura-chetganj, varanasi. the said property was put to auction by the authorities concerned. 2. the facts relevant for deciding the controversy arising in these two, writ petitions are not in dispute. in pursuance of the aforesaid recovery proceedings, an auction sale had actually taken place on february 4, 1986. the highest bidder at the auction was one sri shiv kumar, who, on demand, failed to deposit one-fourth of the amount of the bid. consequently, sri sharad jaiswal, who was the second highest bidder at the said auction, was required to deposit one-fourth of the amount of auction. on that very date, sri jaiswal deposited one-fourth of the amount of auction sale. subsequently, objections were filed by smt. gaitri devi before the sub-divisional magistrate stating that the auction proceedings continued till late at night. the said objections were accepted by the sub-divisional magistrate and he, vide his order dated february 13, 1986, a copy of which has been filed as annexure 3 to the writ petition, set aside the auction and directed a re-auction. aggrieved against the same, smt. gaitri devi, sri shiv kumar and sri sharad jaiswal had filed appeals before the commissioner, varanasi division, varanasi, which have been disposed of by him by the impugned consolidated order dated october 8, 1987. under the impugned order, the commissioner, varanasi division, held that it is incorrect that the auction proceedings continued till late at night. this finding has been recorded by him on the basis of a report that was received by him. he, accordingly, held that there has been no irregularity in the auction proceedings dated february 4, 1986, and that the appeal of sri sharad jaiswal was allowed and the appeals of smt. gaitri devi and sri shiv kumar were dismissed. smt. gaitri devi has challenged the said order by means of the present writ petition. sri shiv kumar aforesaid whose bid was the highest at the said auction has also filed another writ petition no. 890 of 1987. by means of this writ petition, the same order dated october 8, 1987, passed by the commissioner, varanasi division, varanasi, has been challenged. 3. in the writ petition filed by smt. gaitri devi, an interim order dated october 19, 1987, was passed and confirmation of the sale by the commissioner was stayed. while the aforesaid recovery proceedings were going on, the appeal filed by smt. gaitri devi before the income-tax tribunal in regard to the aforesaid demand of estate duty was also pending. during the pendency of the present two writ petitions, a supplementary affidavit has been filed on behalf of the petitioner, smt. gaitri devi, stating that the income-tax tribunal has, vide its order dated march 15, 1988, set aside the aforesaid demand of estate duty and has remanded the case to the assistant controller of estate duty for rehearing and disposal of the liability of the petitioner under the estate duty act on the ground that the title deeds with respect to certain properties had not been examined and that the recitals in the will of the deceased had not been properly gone into. 4. i have heard learned counsel for the parties in these two writ petitions. the first submission made by sri r. n. singh, learned counsel for the petitioner, is that the impugned order has been passed in gross violation of the provisions of section 167 of the u. p. land revenue act, 1901. the said section reads as follows : '167. deposit by purchaser. re-sale in default of deposit.--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, may be recovered from him by the collector as if the same were an arrear of revenue.' 5. from a perusal of the above section, it is abundantly clear that in case the person declared to be the purchaser makes a default in making the deposit immediately of twenty-five per cent, of the amount of his bid, it is imperative that the land in question be again put up and resold. admittedly, in the present case, sri shiv kumar had made a default. therefore, it was imperative on the part of the collector to have cancelled the auction and directed the property to be resold, in my opinion, the provisions of section 167 of the u. p. land revenue act as aforesaid are mandatory and it is obligatory on the part of the collector to pass an order for the resale of the property. admittedly, the same has not been done in this case. on the other hand, what we find is that the sub-divisional magistrate has set aside the sale and has directed resale of the property on the ground of irregularity. the said ground of irregularity in the auction proceedings has, however, been set aside by the commissioner by the impugned order. under the circumstances, therefore, in my opinion, the impugned order passed by the commissioner, varanasi division, is vitiated and suffers from an error of law in not passing an order for the re-auction of the property. the said order, therefore, deserves to be quashed.6. as regards the point raised by learned counsel for the petitioner that in view of the subsequent facts and the passing of the order dated march 15, 1988, by the income-tax tribunal, there is no demand for recovery against the petitioner, i am afraid this matter cannot be gone into by me because the writ petition has not been amended and no relief in this regard has been prayed for by the petitioner. it shall, however, be open to the petitioner to take proper steps in this matter before the assistant controller of estate duty for withdrawal of the certificate in question, in case the petitioner is so advised. 7. with the above observations, both the writ petitions are allowed with costs and the impugned order dated october 8, 1987, passed by the commissioner, varanasi division, varanasi, is quashed.