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

J U D G M E N T

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,

Deepak  Mitra,  Manmohan  Mitra  and  Madhurima  Ghosh)  and  thereby

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 4th

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

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