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TMI Blog1962 (9) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was delivered by AYYANGAR J. - This appeal comes before us on a certificate of fitness granted by the High Court of the Bombay under article 133(1)(a) of the Constitution. The appeal was heard by us in November last and judgment was reserved on November 9, 1961. Within a short time thereafter, learned counsel for the appellant intimated the Registry that the second respondent had died on November 5, 1961, and that steps were being taken to have the legal representative brought on record. The certificate under Order XVI, rule 13, was received by this court and on its basis substitution was ordered at the end of August, 1962. The appeal was subsequently re-posted for hearing and we have now heard the learned counsel for the parties. This facts giving rise to the appeal are briefly as follows: The plaintiff who is the appellant brought a suit in the Court of the Civil Judge at Jalgaon for a declaration that the sales of certain of his lands which were held by the revenue authorities in circumstances which we shall detail later was void, and to recover possession of the lands from the defendants who had purchased these lands in revenue auction. In view of the prayer for the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is raised for consideration in the appeal. Before dealing with the arguments addressed to us regarding the validity of the sales it is necessary to set out the statutory provisions which bear upon the power of the Government to effect sales for the realisation of arrears due to them. Section 34 of the Bombay Abkari Act enables arrears of excise revenue to be recovered as an "arrear of land revenue." Chapter XI of the Bombay Land Revenue Code lays down the procedure for the realisation of land revenue and other revenue demands. Among the provisions of this Chapter is necessary to refer to section 155 reading : "155. The Collector may also cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrear is due to be sold." Section 165 directs the Collector to issue a proclamation, in the vernacular language of the district, of the intended sale, specifying the time and place of sale, while the section following requires that a written notice of the intended sale should be affixed in the public office named therein. Section 167 enacts that sales shall be made by auction by such person as the Collector may direct. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial irregularity, or mistake, or fraud, in publishing or conducting it;but, except as is otherwise provided in the next following section no sale shall be set aside on the ground of any such irregularity or mistake, unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. If the application be allowed, the Collector shall set aside the same, and direct a fresh one." The consequential provision is in section 179 which reads : "179. On the expiration of thirty days from the date of the sale, if no such application as is mentioned in the last preceding section has been made, or if such application has been made and rejected, the Collector shall make an order confirming the sale, provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made, or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale." And section 182 enacts : "182. The certificate shall state the name of the person declared at the time of sale to be the actual purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1934, the Mahalkari of Edalabad brought to the notice of the Collector of East Khandesh that an amount of over Rs. 9,000 was due in respect of excise transactions from the plaintiff and his father and he pointed out that the amount remained unrecovered notwithstanding that the defaulter's movable property was put up for sale eighteen times and his immoveable property eight times. He suggested to the Collector that "in order to bring home a sense of responsibility to the deflauters and to make them realise the need for quickly paying up the arrears", the procedure laid down in a Government Order dated August 30, 1933, might be applied to them. The procedure indicated was that contained in a Government resolution in the Revenue Department bearing No. 474 of 1933 that "if defaulters were contumacious the Collector would have authority to purchase on behalf of Government the defaulter's property on a nominal bid." By this letter the Mahalkari desired to have the permission of the Collector to make a nominal bid of Re. 1 at the next auction of the defaulter's property. The principal question raised in this appeal is whether or not the procedure indicated in this resolution is in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 per cent. of the sale price immediately the bid was knocked down and further required him to pay the balance within 15 days thereafter and also prescribed the consequences of default, viz., the sale shall be avoided and that a resale shall take place and that in the present case the Mahalkari, who bid on behalf of the Government, or the Government itself, had not made either the deposit or the final payment with the result that the purchase stood automatically cancelled by reason of that default, and (5) that the purchase by the Government on a nominal bid of Re. 1 was not a sale by public auction as was contemplated by section 167 of the Code and in consequence the sale was void and that no title passed by reason of that sale. As regards the first four of the objections set out above, they have, in our opinion, no substance on the facts of the present case. We do not however consider it necessary to deal with them because they were raised for the first time in this court and they involve questions of fact which were not the subject of pleading or investigation in the courts below. We intimated to the learned counsel that we would not permit him to urge these grounds before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upee for all the property cannot be regarded as a bid at an auction-sale for property lotted into five lots with a separate reserve price on each. The word 'nominal' shows that there was nothing of substance about the offer, and the endorsements and formalities by which an attempt was made to give some semblance of regularity to what was done, cannot in my opinion, cloak in legal guise that which was nothing better than a device to vest the appellant's property in a revenue officer holding on behalf of Government. The Bombay Land revenue Code contains no power either to forefeit or to foreclose a defaulter's property. Yet the scheme formulated by the resolutions referred to at the commencement of this judgment aims in effect at bringing about such a result, for, if effective, it would achieve the extinguishment in favour of Government of all the appellant's rights and ownership in his land. In my judgment what took place at the alleged auction sale was of no effect and did not give to the Revenue Patil or to the Government any right, estate or interest in the appellant's property." When the present appeal was before the learned judges of the Bombay High Court it was pressed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be pointed out is that paragraph (4) of rule 129, already set out, which authorises the purchase by the Government for a nominal price was added only in 1946, long after the sales in the present case, and cannot serve as any basis for sustaining the validity of the sale. In the circumstances it is not necessary to consider the scope or validity of this rule or its legal efficacy for authorising such a sale or purchase. It is common ground that the power of Government of effect a sale by summary process for the recovery of amounts due to them has to be gathered from the four corners of Chapter XI of the Code read in conjunction with the relevant rule in Chapter XVIII. Section 155 of the Code enables the Collector to cause the right, title and interest of the defaulter in the immoveable property to be sold. The manner in which those sales might take place is provided for by section 167 which enacts that "sales shall be by public auction by such person as the Collector may direct." Leaving aside for the moment the provisions which details the procedure to be followed in the conduct of these sales, the point to be observed is that the realisation of the dues has to be by "sales" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de invested with the power to make arrangements for the sale and section 178 constitutes him the authority to determine judicially any allegation about the irregularity in the conduct of the sale. In these circumstances it looks to us somewhat anomalous that the Collector should of his own motion and without the authority of any statutory power claim the right to bid at the action which his deputy is conducting on his behalf for the realisation of the dues which he as the executive authority is to recover and particularly when he is constituted the authority to consider the validity or irregularity in the auction conducted at his instance and the purchase made at his instance. The next question for consideration is whether the fact that the defaulter was apprised that Government would bid for a nominal sum of one rupee for the property at the auction renders the sale valid. We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale. If a sale for a nominal bid of one rupee were "a sale by public auction" within section 167 notice to the defaulter that such a procedure would be followed would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irregular which rendered it voidable and that no suit having been brought within one within one year of the sale, the suit was barred by article 11 of the Indian Limitation Act. We consider, however, that there is no substance in this contention because if, as we hold, a sale of the type now impugned was not authorised by the statutory provision in that regard then it was not a question of any mere irregularity in the conduct of a sale 6but a case where there was no sale at all with the consequence that no property passed from the defaulter. It was not disputed that article 11 of the Indian Limitation Act would only apply to a case where there is need for the setting aside of a sale and that it has no application to case where no sale as contemplated by law has taken place. It was next submitted that the appellants' suit was barred by section 4(c) and 11 of the Bombay Revenue Jurisdiction Act, 1876. Section 4(c) runs : "4. Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters : (c)... claims to set aside, on account of irregularity, mistake or any other ground except fraud, sales for arrears of land-rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... express provision of this Act, or of any law for the time being in force to the countrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not." In the present case, however, there was no order by any authority which could be the subject of any appeal under section 203. The Collector authorised administratively the Mahalkari to offer the bid and that is certainly "a decision" which is capable of appeal within section 203. No other order which could be any stretch of language be construed to be a decision was pointed out in respect of which an appeal could have been filed. In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place. If section 203 in not attracted it was not suggested that section 11 of the Revenue Jurisdiction Act created any bar to the entertainment of the present suit. It was then suggested that the plaintiff was disentitled to any relief by reason of an estopp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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