Pravesh Kumar Sachdeva vs The State Of Uttar Pradesh

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9836_OF 2014

Pravesh Kumar Sachdeva …Appellant Versus State of Uttar Pradesh & Ors. …Respondents WITH CIVIL APPEAL NO. 9838 OF 2014 WITH CIVIL APPEAL NO. 9524 OF 2018 (Arising out of S. L.P. (C) No. 21229 OF 2007) AND CIVIL APPEAL NO. 9837 OF 2014

JUDGMENT

Madan B. Lokur, J.

1. Leave granted in S.L.P.(C) No.21229 of 2007.

2. A narrow question arises for consideration in these appeals,

namely, whether the Allahabad High Court was right in setting aside a

confirmed auction sale despite there being no objection to it. In our

opinion, the High Court was in error in setting aside the auction of the

land belonging to the private respondents (Alok Mitra, Ashok Mitra, Signature Not Verified Digitally signed by Deepak Mitra, Manmohan Mitra and Madhurima Ghosh) and thereby SANJAY KUMAR Date: 2018.09.13 15:24:16 IST Reason:

prejudicing the rights of the appellants.

C.A. Nos. 9836 OF 2014 etc. etc. Page 1 of 9

3. The private respondents were having businesses under the name

and style of Mitra Prakashan Ltd. and Maya Press Ltd. It appears that the

businesses were not successful and they fell in debt being unable to pay

the workmen or even pay closure compensation.

4. This led the workmen to approach the Labour Court which decided

in their favour resulting in the private respondents having to shell out a

huge amount of about Rs. 56 lakhs towards unpaid dues. Since the

amounts were not paid despite a citation and recovery certificates, the

property/vacant land of the private respondents being 1877.88 sq. yards in

Plot No.4-A/4(1A/A) Hashimpur Road, Allahabad was attached.

5. Subsequently, the property/vacant land was put to auction which

took place on 17th November, 2004. One of the appellants Pravesh Kumar

Sachdeva (for short Sachdeva) was the highest bidder having given a bid

of Rs. 70 lakhs.

6. In terms of the provisions of the Uttar Pradesh Zamindari Abolition

and Land Reforms Act, 1950 and the Rules of 1952 framed thereunder,

30 days’ time was given for filing objections to the auction sale under

Rule 285-I which reads as follows:

“RULE 285-I (i) At any time within thirty days from the date of 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

C.A. Nos. 9836 OF 2014 etc. etc. Page 2 of 9 proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.

(ii) ***

(iii) The order of the Commissioner passed under this rule shall be final.”

7. One of the private respondents (Alok Mitra) filed an

application/objections on 16th December, 2004. The cause title of the

application/objections mentioned the name of all the private respondents

that is, Alok Mitra, Ashok Mitra, Deepak Mitra, Manmohan Mitra and

Madhurima Ghosh. However, on a perusal of the application/objections

placed before us in original, we found that it was signed only by the

advocate R.K. Pandey. The vakalatnama given to the advocate was signed

only by Alok Mitra. One of the issues raised before us was whether the

application/objections were filed by Alok Mitra or by all the private

respondents.

8. Be that as it may, in our opinion, the application/objections were

filed only by Alok Mitra and by none of the other private respondents

even though their names find mention in the cause title of the document.

We say this because the vakalatnama was given in favour of the advocate

only by Alok Mitra and there is nothing to indicate that he had given the

vakalatnama as the attorney or representative of the other private

respondents.

C.A. Nos. 9836 OF 2014 etc. etc. Page 3 of 9

9. The District Magistrate was not informed about the

application/objections having been filed by Alok Mitra and on the belief

that no one had objected to the auction sale, the District Magistrate

confirmed it on 18th December, 2004. Thereafter Alok Mitra prepared an

application dated 31st December, 2004 which was filed by him on 4 th

January, 2005 withdrawing the objections raised by him. The withdrawal

of the objections was allowed by the competent authority on 24 th January,

2005.

10. Quite independently on 11th January, 2005 and 25th January, 2005

the private respondents (including Alok Mitra) moved two sets of

applications for being paid the difference between the auction sale price

of Rs. 70 lakhs and the dues and liabilities of the private respondents of

about Rs. 56 lakhs. These applications were allowed and the differential

amount was also given to the private respondents.

11. The position as it stood, therefore, was that the auction sale had

taken place and was confirmed; objections filed to the auction sale by

Alok Mitra were withdrawn; all the private respondents got back the

difference between the auction sale price and the dues and liabilities

incurred by them.

C.A. Nos. 9836 OF 2014 etc. etc. Page 4 of 9

12. On or about 1st April, 2005 Sachdeva got the subject land converted

to freehold and a little later in May 2005, he sold a part of it to Pawan

Kumar Agarwal (also an appellant).

13. After the aforesaid transaction, an application was filed by the

private respondents other than Alok Mitra before the Competent

Authority on 19th May, 2005 in which a prayer was made to recall the

order of 24th January, 2005 permitting withdrawal of the

application/objections filed by Alok Mitra. The averments made in the

application in paragraphs 3 and 4 are significant and read as follows:

“3. That the applicants had never given a power of attorney to the opposite party No. 6 Alok Mitra to act for them and on their behalf, and were also not ratified the act and action taken by said Sri Alok Mitra.

4. That the applicants never asked, directed and consented with Sri Alok Mitra opposite party No. 6 not to press or to withdraw the aforesaid objection/application No.5 of 2004.”

14. A reading of the aforesaid two paragraphs indicates an inherent

self-contradiction. While it is stated in paragraph 3 that the applicants had

not given any power of attorney to Alok Mitra to act for them and on their

behalf whereas in paragraph 4 they say that they had not asked, directed

and consented to the withdrawal of the objections/application filed by

Alok Mitra. The inherent contradiction is that if they had not authorized

Alok Mitra to file an application, there cannot be any question of their

authorizing Alok Mitra to withdraw the application since it was not filed

C.A. Nos. 9836 OF 2014 etc. etc. Page 5 of 9 on their behalf. The two paragraphs quoted above confirm that the

application/objections of 16th December, 2004 were not filed by the

private respondents.

15. Unfortunately, by an order dated 21st November, 2005 the

application filed by the private respondents (other than Alok Mitra) was

allowed by the Competent Authority and the confirmation of sale in

favour of Sachdeva was set aside. This led Sachdeva to file a writ

petition1 in the Allahabad High Court, which came to be dismissed by the

impugned judgement and order dated 23rd March, 2006. This resulted in

Sachdeva and the vendee, Pawan Kumar Agarwal to prefer the present

appeals in this Court.

16. As mentioned above, on these facts, the only question for our

consideration is whether the High Court was in error in setting aside the

confirmed auction sale.

17. It is quite clear from the narration of facts that the objections raised

to the auction sale were only by Alok Mitra, who did not communicate

the objections to the District Magistrate in time. No other objection was

raised to the auction sale and it was duly confirmed by the District

Magistrate. Alok Mitra later withdrew his objections.

1 Civil Miscellaneous Writ Petition No. 76863 of 2005

C.A. Nos. 9836 OF 2014 etc. etc. Page 6 of 9

18. The other private respondents contended that even they were

parties to the objections filed by Alok Mitra. We cannot agree for the

simple reason that the objections were signed only by R.K.Pandey,

advocate and the vakalatnama given to him was signed only by Alok

Mitra. None of the other private respondents signed the vakalatnama in

favour of R.K.Pandey. On the contrary, when the other private

respondents objected to the withdrawal of the objections by Alok Mitra,

they categorically stated that they had not given a power of attorney to

Alok Mitra. In that view of the matter, it can hardly lie in the mouth of

these private respondents to contend that the objections filed by Alok

Mitra were also filed on their behalf. The private respondents other than

Alok Mitra have come out with an unbelievable story only to somehow or

other keep the issue alive through litigation and unfortunately, they have

been successful in doing so for the last more than one decade.

19. We also find that the conduct of all the private respondents is a

clear indication of their acceptance of the validity of the auction sale. It

has come on record that the auction sale resulted in a sale price which

was over and above the dues and liabilities of the private respondents by

an amount of about Rs. 14 lakhs. Through applications filed by the

private respondents on 11th January, 2005 and 25th January, 2005 requests

were made for being given back the excess amount raised by the auction

C.A. Nos. 9836 OF 2014 etc. etc. Page 7 of 9 sale. In fact this request was acceded to and the amount was given back

to the private respondents by the Competent Authority. It appears that the

present litigation is being fought by the private respondents on the basis

of the amounts received by them from the Competent Authority. In any

event, the conduct of the private respondents is a clear indication, if any

is required, that they had no objection to the auction sale.

20. Through their conduct, in failing to file objections to the auction

sale and making an application and accepting the excess amount

recovered from the auction sale, the private respondents have waived off

their rights in respect of the auction sale and have acquiesced in the

auction sale. Today, the private respondents are estopped through their

conduct from challenging the auction sale in any manner whatsoever.

21. In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. 2 it was

observed as follows:

“Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied.”

22. In Municipal Corporation of Greater Bombay v. Dr Hakimwadi

Tenants' Association3 it was held that “In order to constitute waiver, there

must be voluntary and intentional relinquishment of a right. The essence

2 1959 Supp (2) SCR 217 3 1988 Supp SCC 55

C.A. Nos. 9836 OF 2014 etc. etc. Page 8 of 9 of a waiver is an estoppel and where there is no estoppel, there is no

waiver. Estoppel and waiver are questions of conduct and must

necessarily be determined on the facts of each case.”

23. Finally, in P. Dasa Muni Reddy v. P. Appa Rao4 this Court held:

“ … Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. ….. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts.”

24. We are of the clear opinion that in view of the law, the High Court

erred in ignoring the basic and primary facts on record and setting aside

the auction sale in favour of Sachdeva, and thereby also prejudicing

Pawan Kumar Agarwal.

25. Under the circumstances, the appeals are allowed and the

impugned judgment and order passed by the Allahabad High Court on

23rd March, 2006 is set aside.

...……………………J (Madan B. Lokur)

...……………………J (S. Abdul Nazeer)

...…………………....J New Delhi; (Deepak Gupta) September 13, 2018

4 (1974) 2 SCC 725

C.A. Nos. 9836 OF 2014 etc. etc. Page 9 of 9