Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Where An Auction Purchaser Purchases The Property, The State Is Duty Bound Upon The Deposit Of Sale Consideration To Ensure Transfer Of Title And...
JUDGEMENT TITLE : Surendra Prakash Pathak Vs. State Of U.P. And 5 Others On 03/30/2016 By Allahabad High Court
CASE NO : WRIT - C NO. 13922 OF 2016
CORAM : - Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Yashwant Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- WRIT - C No. - 13922 Of 2016

Petitioner :- Surendra Prakash Pathak
Respondent :- State Of U.P. And 5 Others
Counsel For Petitioner :- Deepak Gaur,Devesh Kumar Verma
Counsel For Respondent :- C.S.C.

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

(Per: Dr D Y Chandrachud, CJ)

An Accused By The Name Of Arvind Prakash Was Convicted Under Section 302 Of Indian Penal Code By The District & Sessions Judge, Etawah In Sessions Trial No. 324 Of 1978 (State Vs. Arvind Prakash, P.S. Jaswant Nagar, District Etawah). The Petitioner Has Averred That The Conviction Was Maintained In A Criminal Appeal By This Court And The Special Leave Petition Against The Judgment Of The Conviction And Sentence Was Dismissed By The Supreme Court.
Since The Accused Was On Bail, He Was Required To Surrender To Serve The Sentence After The Dismissal Of The Special Leave Petition. On 17 April 2003, The District & Sessions Judge Directed That The Convict Must Show Cause On 19 May 2003 As To Why His Bail Bond Be Not Forfeited. On 19 May 2003, The Surety Was Furnished A Period Of One Month For Ensuring The Presence Of The Accused Who Was Absconding. Eventually, Proceedings Were Initiated Under Section 82/83 Of The Code Of Criminal Procedure, 1973. By An Order Dated 21 May 2003, The Agricultural Property To The Extent Of The Share Of The Convict Was Attached By The Deputy Collector, Jaswant Nagar. On 23 June 2003, The Sessions Judge Directed The Deputy Collector To Sell The Attached Property Of The Convict If He Did Not Surrender Within A Period Of Six Months. By An Order Dated 24 December 2003, The Sessions Judge Directed The Disposal Of The Attached Property By A Public Auction Under Section 85 (3). The Naib Tehsildar Was Appointed As The Auctioning Officer By An Order Of The Deputy Collector. The Tehsildar Issued A Proclamation For Holding Of An Auction On 16 January 2004. The Petitioner Was The Highest Bidder In The Amount Of Rs.40,000/- And The Bid Was Finalized In His Favour. The Petitioner Deposited Rs.40,000/- On 16 January 2004 With The Tehsildar. On 17 January 2004, The Tehsildar, Remitted The Amount Of Rs.40,000/- To The Court Of The Sessions Judge, Etawah Which Was Received It On 19 April 2004.
The Grievance Of The Petitioner Is That Inspite Of The Auction-sale Which Was Held On 16 January 2004 And The Deposit Of The Entire Auction Proceeds, The Tehsil Authorities Have Not Delivered The Possession Of The Auctioned Property. The Petitioner Made An Application On 25 March 2004 To The Deputy Collector. The Petitioner Thereupon Moved Further Applications On 26 April 2005, 29 September 2006 And 26 June 2007. The Deputy Collector Obtained The Legal Opinion Of The DGC (Civil), Etawah On 14 September 2009. Thereafter, The Petitioner Has Made As Many As 12 Representations Between 14 October 2009 And 15 April 2015 But No Decision Was Taken By The Collector And District Magistrate, Etawah.
Accordingly, The Writ Proceedings Have Been Instituted For A Direction To The Collector And District Magistrate And Deputy Collector To Approve The Auction Sale And Transfer The Title And Possession To The Petitioner Or, In The Alternative, For Refund Of The Amount Of The Auction Money Deposited By The Petitioner On 16 January 2004 Together With Interest. The Petitioner Seeks A Disposal Of His Representation Dated 4 January 2016.
Section 82 Of The Code Of Criminal Procedure 1973 Provides For A Proclamation By The Court Requiring A Person Against Whom A Warrant Has Been Issued By It And Who Is Absconding Or Concealing Himself So That Such Warrant Cannot Be Executed, To Appear At A Specified Place And Time Not Less Than Thirty Days From The Date Of Publication Of Such A Proclamation. The Proclamation Is Required To Be Published In The Manner Prescribed Under Sub-section (2) Of Section 82. Section 83 Empowers The Court After The Issuance Of The Proclamation To Order The Attachment Of The Property Belonging To The Proclaimed Person. Under Sub-section (4) Of Section 83, If The Property Ordered To Be Attached Is Immovable, The Attachment Under This Section Shall, In The Case Of Land Paying Revenue To The Sate Government, Be Made Through The Collector Of The District In Which The Land Is Situated. Section 84 Requires Disposal Of The Claims And Objections To Attachment. Under Section 85, Where The Proclaimed Person Appears Within The Time Specified In The Proclamation, The Court Is Required To Release The Property From Attachment. However, If The Proclaimed Person Does Not Appear Within The Time Specified In The Proclamation, Sub-section (2) Of Section 85 Mandates That The Property Under Attachment Shall Be At The Disposal Of The State Government But It Shall Not Be Sold For A Period Of Six Months From The Date Of Attachment And Until Any Claim Preferred Or Objection Made Under Section 84 Has Been Disposed Of.
In The Present Case, The Property Of The Convict Who Was Absconding Was Ordered To Be Attached And Had Been Placed At The Disposal Of The Collector. The Property Was Auctioned In Pursuance Of The Directions Of The Court And The Auction-sale Proceeds Have Been Deposited In Court. The Submission Of The Petitioner Is That The Collector Was Required Under Rule 285 Of The U.P. Zamindari Abolition & Land Reforms Rules 1952 After The Sale Of The Holding To Put The Petitioner Who Is The Purchaser Of The Property Into Possession And To Grant Him A Certificate Of Title.
On The Other Hand, It Is The Submission Of The Learned Standing Counsel That The Auction-sale Took Place Under The Authority Of The Court And Hence, It Was For The Petitioner To Seek Appropriate Orders From The Court For The Transfer Of Possession And For Issuance Of A Tittle Certificate. The Rules, It Is Urged, Have No Application.
The Provisions Of Section 85 (2) Require That Where The Proclaimed Person Has Not Appeared Within The Time Specified In The Proclamation, The Property Under Attachment Shall Be At The Disposal Of The State Government. Where The Property Which Is Ordered To Be Attached Under Section 83 Is Immovable, The Attachment In The Case Of Land Paying Revenue To The State Government Has To Be Made Through The Collector. Section 85 (2) Evidences The Intent Of The Legislature That The Property Under Attachment Shall Be At The Disposal Of The State Government Where The Proclaimed Person Has Not Appeared. Thereafter, Upon The Expiry Of A Period Of Six Months From The Date Of Attachment And The Disposal Of The Claims And Objections, If Any, The Property Is Liable To Be Sold Under The Authority Of The State Government. This Is Exactly What, According To The Petitioner, Has Happened In The Facts Of The Present Case.
The Grievance Of The Petitioner That The Possession Should Be Handed Over To Him Together With The Certificate Of Title In Respect Of The Interest Of The Absconder Should, In Our View, Be Dealt With By The Collector And District Magistrate, Etawah. In The Alternative, The Petitioner Has Prayed That Upon Failure To Deliver Possession, Necessary Steps Should Be Taken To Refund The Amount Which Has Been Deposited With Interest. The Auction Has Been Conducted By The State At Whose Disposal The Property Is Placed By The Court Which Issues The Proclamation. Where An Auction Purchaser Purchases The Property, The State Is Duty Bound Upon The Deposit Of Sale Consideration To Ensure Transfer Of Title And Delivery Of Possession, Subject To The Terms And Conditions Of Auction. If That Is Not Possible, The Auction Money Must Be Refunded With Interest.
We Direct In Consequence That Having Due Regard To The Position Of Law As Explained Hereinabove, The Collector And District Magistrate, Etawah Shall Take Necessary Steps In Pursuance Of The Auction Which Has Been Conducted After Due Verification Of All The Facts And Circumstances. We Clarify That The Factual Foundation Of The Present Judgment Is On The Basis Of What Has Been Pleaded By The Petitioner In The Writ Proceedings. However, The District Magistrate Shall Verify All The Relevant Facts And Thereafter Process The Request Of The Petitioner In Accordance With Law Expeditiously. This Exercise Shall Be Completed Within A Period Of Four Months From The Date Of Production Of A Certified Copy Of This Order.
This Writ Petition Shall Stand, Accordingly, Disposed Of. There Shall Be No Order As To Costs

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