May - High Court of Judicature at Allahabad

2All] Manmindar Singh V. M/s Chandra Cold Storage and others 33
amount was to the deposited under the orders
of the Court. The said application came to the
disposed of by the order dated 23.2.1999 with
the direction that the petitioner, (respondent
herein) would deposit 3/4 th of the amount
which was due to be paid by it with the
respondent bank by the date fixed by order
dated 12.9.1999. The two orders dated
12.2.1999 and 23.2.1999 are under challenge
in this Special Appeal.
4. We have had heard Sri Y.K. Saxena for
the appellant and Sri R.N. Singh, Senior
Advocate for the respondent clod storage.
5. The submissions made by Sri Y.K.
Saxena, learned counsel for the appellant is
three fold. Firstly, that the writ petition giving
rise to this Special Appeal was not
maintainable in view of the fact that earlier
the respondent cold storage had filed a writ
petition challenging the recovery proceeding
which had been disposed of by fixing certain
instalments and the second Writ Petition
challenging the auction proceeding was being
based on the same cause of action was not
maintainable; secondly, that the petitioner had
on alternative remedy under the provisions of
the U.P. Zamindari Abolition and Land
Reforms Act, 1050 and Rules made
thereunder; and thirdly, that the learned Single
Judge ought not to have issued direction a in
exercise of power under Article 226 of the
Constitution which had the effect of depriving
the appellant of his right to get the auction
sale confirmed after expiry of 30 days from
the dated of auction. Sri R.N. Singh, Senior
Advocate appearing for the respondent cold
storage has submitted that the writ petition
giving rise to this Special Appeal was based
on a different cause of action; that the
alternative remedy stipulated under the U.P.
Zamindari Abolition and Land Reforms Act,
1950 (hereinafter refereed to as the Act of
1950) was not an absolute bar; and that the
appellant had no vested right to get the
auction sale confirmed which was not held
after giving thirty days clear notice.
6. In so far the maintainability of the Writ
Petition is concerned suffice it to say that the
alternative remedy being no an absolute bar
we are not inclined to dismiss the writ petition
on the plea of alternative remedy particularly
in view of the fact that in compliance of the
order dated 12.2.1999 and 23.2.1999 of the
learned Single Judge, the respondent cold
storage deposited the entire outstanding
amount, on the deposit of which the auction
sale could have been set aside by the
Collector in exercise of power under Rule
285-H of U.P. Zamindari Abolition and Land
Reforms Rules, 1952 (hereinafter refereed to
as the Rules) and the appellant herein has
already withdrawn the amount so deposited.
Coming to the question whether the
appellant has any vested right to the sale
being confirmed we may refer to the related
provisions. Rule 285-H Rules provides that
any person whose holding or other immovable
property has been sold under the Act may, at
any time within thirty days from the date of
sale apply to have the sale set aside on his
depositing in the Collector's office :-
"a) for payment to the purchaser, a sum equal
to 5 per cent of the purchase money; and
b) for payment on account of the arrears, the
amount specified in the proclamation in Z.A.
Form 74 as that for the recovery of which the
sale was ordered, less any amount which may,
since the date of such proclamation of sale,
have been paid on that account; and
c) the costs of the sale."
7. It is further provided therein that on the
making of such deposit the Collector shall
pass on order setting aside the same. It may
be observed that though earlier there was
some dispute at the Bar as to whether the
entire amount stipulated in Rule 285-H of
Rules of 1952 had been deposited by the
respondent cold storage but on 7.2.2000 when
the matter came up for hearing it was agreed