caselaws.org
Supreme Court of India
Narayan Yadav (D) Thr.Lrs. vs The State Of Bihar . on 25 February, 2020Author: Mohan M. Shantanagoudar
Bench: Mohan M. Shantanagoudar, R. Subhash Reddy
C. A. No.9173 of 2010
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9173 OF 2010
Narayan Yadav (D) Thr.Lrs. …Appellants
vs
The State of Bihar & Ors. ..Respondents
J U D G M E N T
R.SUBHASH REDDY,J.
1. This civil appeal is filed by the appellants,
aggrieved by the judgment and order dated 12 th March,
2008 passed in Letters Patent Appeal No.79 of 1994 by
the High Court of Patna.
2. Necessary facts in brief are as under:-
Signature Not Verified 3. One Sadhusharan Yadav, Respondent No.14 herein,
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2020.02.25
16:43:10 IST
Reason:
took a loan from the Land Development Bank, Uda
C. A. No.9173 of 2010
2
Kishunganj (Madhipura) during the year 1971, by
mortgaging his agricultural land. Sadhusharan Yadav
defaulted in payment of loan and, thus, a certificate
case No.338 of 1981-82 was initiated for realization of
said loan amount. It appears that even before
initiation of certificate proceedings, the mortgaged
land was sold by the Respondent No.14 to the objectors-
writ petitioners by executing registered sale deeds.
In realization of the loan amount, the mortgaged land,
i.e.the land in question, was sold by way of auction.
The appellants herein are the purchasers in the
auction sale held on 15.06.1983. The respondents-writ
petitioners having come to know about the auction sale,
filed an application before the Certificate Officer on
15.07.1983 under Section 28 of Bihar & Orissa Public
Demands Recovery Act, 1914 (hereinafter “the Act”).
Though, there is some controversy, as to whether
application was filed under Section 28 or 29 of the
Act, as much as all authorities have proceeded on the
premise that the application was filed under Section 28
of the Act, we need not go into such controversy.
Though, the said application was filed for setting
aside the sale, no deposit of any amount was made as
C. A. No.9173 of 2010
3
required under Section 28 of the Act. The Certificate
Officer by an order dated 05.09.1983 permitted the
objectors-writ petitioners to deposit the amount of
Rs.12000/- along with 10% penalty on the said purchase
money and interest thereon @ 6¼% per annum at the Uda
Kisunganj branch of the Land Development Bank, and
submit proof of the deposit on or before 22.09.1983.
The respondent-writ petitioners claimed to have
deposited the amount on 17.09.1983. However, it is
stated that pacca receipt in respect of the said
deposit, was made available by bank authorities later
on 28.09.1983.
4. The Certificate Officer who is the 5th respondent
herein vide order dated 18.11.1983 allowed the
objections of the respondent-writ petitioners and set-
aside the sale dated 15.06.1983. The auction purchaser
had filed an application before the Collector,
Madhipura, who is the 4th respondent herein. The
Collector, vide his order dated 29.01.1985, set-aside
the order of Certificate Officer on the ground that the
money, as required under Section 28 of the Act, was not
deposited within the stipulated time. The respondent-
objector-writ petitioners filed an application before
C. A. No.9173 of 2010
4
the Commissioner, Koshi Division, by way of Revision
Case No.96/84-85, who in his order dated 31.03.1986
confirmed the order of Collector by dismissing the
revision application. Aggrieved by such order, the
respondent-writ petitioners moved to the learned
Member, Board of Revenue, Bihar, in Certificate
Revision Case No. 323 of 1986. Vide his order dated
27.04.1987, he dismissed the case mainly on the ground
that the deposit as required under Section 28 of the
Act, was not made within the prescribed time.
Assailing such orders, the respondent-writ petitioners
filed a Writ Petition, W.P.No.3295 of 1987, before the
High Court of Patna. The High Court allowed the Writ
Petition, and restored the order of the Certificate
Officer, where he had set-aside the sale. The said
order of the learned Single Judge is confirmed in the
Letters Patent Appeal filed by the appellants herein,
and their appeal was dismissed by the Division Bench of
the High Court by the impugned order.
5. We have heard Sri Amit Kumar, learned counsel
appearing for the appellants, Sri Gopal Singh, learned
counsel appearing for the State of Bihar and Sri Jagjit
C. A. No.9173 of 2010
5
Singh Chhabra, learned counsel appearing for the
respondent-writ petitioners.
6. Mainly, it is contended by the learned counsel
appearing for the appellants, that the respondent-writ
petitioners did not make any deposit along with their
application filed on 15.07.1983 as required under
Section 28 of the Act. It is submitted that, when
there is a mandatory requirement of deposit for making
an application to set-aside the sale, no application
could have been entertained for setting aside the sale
in absence of such deposit within the time stipulated
under law. Further, it is submitted, that in absence
of any power conferred on the Certificate Officer, the
Certificate Officer had no authority to either extend
the time for deposit, or to entertain the application
for setting aside the sale, which was not supported by
deposit. It is contended that as the Certificate
Officer had committed an error in allowing the
application of the writ-petitioners for setting aside
the sale, the same was rightly interfered with by the
Collector in revision petition, and the same was
confirmed by the Board of Revenue. It is submitted
that the learned Single Judge has allowed the writ
C. A. No.9173 of 2010
6
petition by misinterpreting Section 28 of the Act. It
is submitted that even the Division Bench had
erroneously confirmed the order of the learned Single
Judge. On the other hand, learned counsel for the
State has supported the case of the appellants.
Learned counsel Sri Jagjit Singh Chhabra, appearing for
the respondent-writ petitioners, has submitted that
even before the mortgage, land was sold by the original
owners, by registered sale deeds for a valuable
consideration. It is submitted that, inspite of the
same, they have deposited the auction amount along with
the penalty amount, a sum equal to 10% of purchase
money, and 6 ¼% interest. It is submitted that when
the application is filed within time under Section 28
of the Act, it is always open for the Certificate
Officer to extend the time for deposit, and the same is
within his power. It is submitted that as the learned
Single Judge of the High Court has considered the
matter in detail, and the order is also confirmed by
the Division Bench, there are no grounds to interfere
with the same.
7. Having heard learned counsel for the appearing
parties, and on perusal of the impugned order, the
C. A. No.9173 of 2010
7
order passed by the learned Single Judge, and other
material on record, we are of the view that the
controversy in question can be narrowed down to the
interpretation of Section 28 of the Act. Section 28 of
Bihar & Orissa Public Demands Recovery Act, 1914 reads
as under:-
“28. Application to set aside sale of immovable
property on deposit.(1) Where immovable property
has been sold in execution of a certificate, the
certificate-debtor, or any person whose
interests are affected by the sale, may, at any
time within thirty days from the date of the
sale, apply to the Certificate Officer to set
aside the sale, on his depositing-
(a) for payment to the certificate-holder;
the amount specified in the proclamation of
sale as that for the recovery of which the
sale was ordered with interest thereon at
the rate of six and a quarter per centum
per annum calculated from the date of the
sale to the date when the deposit is made;
(b) for payment to the purchaser, as
penalty, a sum equal to ten percent of the
purchase money, but not less than one
rupee;
(c) for payment to the Collector (where
the certificate is for a public demand
payable to the Collector), such
outstanding charges due to the Government
under any law for the time being in force
as the Collector certifies to be payable
by the certificate-debtor.
(2) Where a person makes an application under
Section 29 for setting aside the sale of his
immovable property, he shall not unless he
C. A. No.9173 of 2010
8
withdraws that application, be entitled to make
or prosecute an application under this Section.
Note.-In computing the 30 days prescribed in
Section 28(1), the day of sale should be
excluded.”
8. It is not in dispute that the mortgaged land was
sold in auction, in the initiated certificate
proceedings by the competent authority on 15.06.1983.
From a reading of Section 28 of the Act as extracted
above, it is clear that the certificate-debtor, or any
person whose interests are affected by the sale, may,
at any time within thirty days from the date of the
sale, can make an application to the Certificate
Officer to set aside the sale by depositing the amount
specified in the proclamation of sale, along with
interest @ six and a quarter per centum per annum, and
with penalty, a sum equal to ten percent of the
purchase money. It is clear from the language of the
aforesaid Section, that the application is to be filed
at any time within thirty days from the date of sale by
depositing the amount. If the application filed under
Section 28 of the Act is to be treated as valid it must
be along with the deposit as contemplated under Section
28(1) of the Act. In this case admittedly the deposit
of purchase money along with penalty was not deposited
C. A. No.9173 of 2010
9
within a period of thirty days from the date of sale.
A reading of the order passed by the Certificate
Officer dated 05.09.1983 itself indicates that the
auction amount was not deposited and the respondent-
objector-writ petitioners were permitted to deposit the
same by 22.09.1983. It is the case of the respondents
that they have deposited the money on 17.09.1983. From
the language of Section 28, it is clear that the
application to set-aside the sale can be made only
after deposit of purchase money. Section is in two
parts. If any person applies for setting aside the
sale, one has to make an application to set-aside the
sale, and such application is to necessarily be
supported by deposit of money. For making an
application, when there is a stipulated time of thirty
days from the date of sale, it means that it is to be
done at sometime during the course of stated time
immediately preceding the expiry of thirty days.
Further, the word “deposit” used in the Section, is to
be understood and mean that deposit is to be made
either, before making an application, or simultaneously
with the application within the prescribed time of
thirty days. When there is a prescribed time of thirty
C. A. No.9173 of 2010
10
days from the date of sale, in absence of any power on
the certifying officer to extend the time, he has no
jurisdiction at all to extend the time of deposit,
beyond the period of thirty days from date of sale. In
absence of any power conferred on the authority under
Section 28 of the Act, and considering the consequence
of not depositing the money within the time of thirty
days, the period of thirty days as mentioned in the
Section 28 is to be considered as mandatory. The
aforesaid Section 28 is in the nature of a concession
shown to a defaulter, so he has to strictly comply with
the requirement thereto, and the sale would not be set-
aside unless the entire amount specified in the
Section, is deposited within a period of thirty days
from the date of sale. If it is beyond thirty days,
court cannot consider such application, as the same is
not in accordance with the Section itself. The said
provision under Section 28 is intended to safeguard the
interests of persons who are affected by the sale, to
approach the competent authority within the prescribed
time by depositing the purchase amount along with ten
percent thereof as penalty which is payable to auction
purchaser for retaining the land. If deposits are
C. A. No.9173 of 2010
11
allowed to be made even after thirty days, same will
run contrary to Section 28 itself and frustrate the
object of the provision.
9. The learned Single Judge of the High Court has
allowed the writ petition by recording a finding that
the Certificate Officer is satisfied with the claim of
the objector-writ petitioners, and has allowed the
application. Even in the Letters Patent Appeal filed by
the appellants, the High Court has rejected the appeal
by recording a finding that whether or not it was a
fit case for extension of time, is basically judicial
discretion, and no case is made out to show that such
discretion was exercised erroneously or capriciously.
When the Section mandates for filing an application by
making a deposit within a particular time, we are of
the view that there is no discretion left to the
authority to extend the time. Learned counsel appearing
for the respondent-writ petitioners, except stating
that the writ-petitioners are the bona fide purchasers
by registered sale deeds from the original owners even
before the auction, and they have also deposited the
purchase money along with 10% towards penalty, could
not make any acceptable submission for entertaining
C. A. No.9173 of 2010
12
application which is not supported by deposit as
required under Section 28 of the Act.
10. For the aforesaid reasons we allow this civil
appeal and set aside the impugned order. Consequently,
the order dated 03.05.1994 passed by the learned Single
Judge in W.P.No.3295 of 1987 stands set-aside
confirming the order of the Board of Revenue. In
effect, the application filed by the respondent-writ
petitioners under Section 28 of the Bihar & Orissa
Public Demands Recovery Act, 1914 stands rejected. The
respondent-writ petitioners are entitled for refund of
money deposited by them before the Certificate Officer.
…………………………………………………………………….J
(L. NAGESWARA RAO )
……………………………………………………………………J
(R. SUBHASH REDDY)
NEW DELHI;
February 25,2020
Comments