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No discretion left to the authority when the section mandates for filing an application by making a

Narayan Yadav (D) through Legal heirs vs. The State of Bihar and Ors., Civil Appeal No. 9173 of 2010.

The Supreme Court Bench comprising of Justice L Nageswara Rao and Justice Subhash Reddy pronounced the following judgment on February 25, 2020.

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. 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. 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.

Facts:

Sadhusharan Yadav, 14th respondent herein, took a loan from the Land Development Bank, UdaKishunganj during the year 1971, by mortgaging his agricultural land. Yadav defaulted in payment of the loan and thus a certificate case was initiated for realization of the same amount. It appears that even before initiation of the proceedings, the mortgaged land was sold by the R.14 to the objectors-writ petitioners by executing registered sale deeds. In realization of the loan amount, the mortgaged land was sold by auction. The appellants herein are the purchasers in the auction sale. The respondents filed an application before the certificate Officer under section 28 of Bihar and Orissa Public Demands Recovery Act, 1914. Though the application was filed, there was no deposit of amount as required under 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 UdaKisunganj branch of the Land Development Bank, andsubmit proof of the deposit. The respondents claimed to have deposited the amount. However, the receipt was available from the bank authorities. The certificate officer who is the R5 allowed the objections of the respondents and set aside the sale. The auction purchaser filed an application before the collector. The collector set-aside the order of the certificate officer as the money required to be submitted was not deposited in the stipulated time. The respondent filed an application before the Commissioner and confirmed the order of the Collector. The learned member from the Board of Revenue also dismissed the case. A writ was filed before the High Court of Patna, which restored the order of the Certificate Officer. The order was confirmed in the LPA filed by the appellants and their appeal was dismissed by the Division Bench of the High Court by impugned order.

The learned counsel for the appellants contended that the respondents did not make any deposit along with their application filed under Section 28 of the Act. It is also submitted that 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. Therefore, it is contended that the Certificate officer has committed an error and the other authorities have rightly interfered with the same. It is submitted that the learned judge has allowed the petition by misinterpreting the section 28 of the act. The Division Bench has also committed the same error. The learned counsel for State also supported the case of the appellants.

The counsel appearing for the respondents submitted that even before the mortgage the land was sold by the original owners, by registered sale deeds for a valuable consideration. Inspite of the same, they have deposited some amount with interest. It is also submitted that the application made under section 28 of the act, the certificate officer can extend the time for deposit and the same is within his power. Therefore, it is submitted that the learned counsel has considered the matter in detail and the same is confirmed by the Division Bench and there are no grounds to interfere with the same.

After hearing both the sides, the Court made the observations through section 28 of Bihar & Orissa Public Demands Recovery Act, 1914.

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 anytime 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.

It is clear from the above section that the application is to be filed within 30 days from the date of sale by depositing the amount and the application filed under the act is to be treated as valid only when it is made along with the deposit. The amount was not deposited with the penalty within the period. The order of the Certificate officer also indicates the same. It is also clear that the sale can be made only after deposit of purchase money. The provision is 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 10% thereof as penalty which is payable to auction purchaser for retaining the land. The submission of the learned counsel for the respondents-writ petitioners stated that they are bona fide purchasers by registered sale and also have deposited the amount along with the penalty. This could not make any acceptable submission for entertaining application which is not supported by deposit as required under the section of the Act. Hence, the Court allowed the civil appeal and set aside the impugned order. The order in the writ petition stands set aside confirming the order of the Board of Revenue. In effect, the application filed by the respondent-writ petitioners stands rejected. The respondent-writ petitioners are entitled for refund of money deposited by them before the certificate Officer.

For the aforesaid reasons we allow this civil appeal and set aside the impugned order. 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. View/Download Judgment:  Narayan Yadav (D) through Legal heirs vs. The State of Bihar and Ors – Vydurya Selvi Baskaran

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