1. Smt. Kiranmayee Das, the petitioner prays for a Writ of Certiorari to quash the judgment and order dated 31-3-1977 in R A. No, 176 of 1976 dismissing her application to set aside the Revenue sale of her land and for further or other orders.
2. Without impairing the foundational facts, the compressed story may be set out as below .:--
The petitioner is the owner of 5 leches of land in Dag No, 538 of K. P. Patta No. 126 of Barpeta town. She purchased it on 23-6-70 by a registered Sale Deed at Rs. l3,500/-. She applied for mutation and on due enquiry the Sub-Deputy Collector by his order dated 18-8-1972 ordered that her name should be mutated. But the lackadaisical officials could find time to reflect the order In 'the Record of Rights' as late as on 3-7-1973. Of course she was shown as one of the co-pattadars. On purchase and having possession of the land the petitioner let out the house on it to Respondent No, 3 as her monthly tenant. However, she had to file a suit for ejectment (Title Suit No. 22 of 1973) against the Respondent. On 9-9-76 the suit came up for hearing and Respondent No. 3 filed a certified copy of the proceedings in Sale Case No. 23 of 1974-75 showing that he had purchased the land in the revenue sale. The petitioner enquired and could gather that the land was sold on 31-7-74 for arrears of revenue and Respondent No. 3 purchased the same at Rs. 70/-She found that notwithstanding the entry of her name in the Revenue Records, namely, the 'Jamabandi', no notice had been served on her before the sale. She has filed the report of the process server (Annexure 2 to her petition) which shows that no notice had been served on her before the sale in question. The petitioner obtained the necessary copies and filed an application under Section 81 of the Assam Land and Revenue Regulation, 1886, for short 'the Regulation' for setting aside the sale on the ground of hardship and injustice. She filed an application under Section 5 of the Limitation Act, 1963 for condonation of the delay setting forth the reasons why she could not present the application earlier. The application was heard and dismissed on merits and on the question of limitation as well.
3. The petitioner set up a case of hardship and injustice, questioned the sale as fraudulent. She claimed that the town land in question worth more than Rs. 10,000/- was sold for a paltry sum of Rs. 70/-. It amounted to hardship as well as injustice. The petitioner claimed that she was entitled to a notice of sale being a recorded pattadar and the sale held in blatant violation of the mandatory provisions was illegal and unjust. She claimed that the auction-purchaser was her tenant living on the land and he was himself 'a defaulter' within the meaning of Ss. 63 and 67 of the Regulation. In so far as the delay in presenting the application the petitioner contended that she could only know about the sale on 9-9-76 and presented the application on 25-9-76. She claimed that she had no prior knowledge and was regularly paying revenue to one Achyutananda -- a co-pattadar and accordingly had no idea about the arrears.
4. The Board has held that the petitioner's name was mutated in the Jamabandi no doubt but she was not entitled to any notice as her name was not recorded in the Jamabandi during sale proceedings. The learned Board brushed aside the question of hardship and injustice on the ground that the petitioner was not in physical possession of the land, but the auction purchaser was in occupation thereof. Further the learned Board held that the application was barred by limitation. It did not reject the contention of the petitioner that she could come to know about the sale only on 9-9-76, However, according to the learned Board, the petitioner could not satisfactorily explain every day's delay from 9-9-76 and the date of presentation of the application before it, that is on 25-9-76.
5. The finding that the name of the petitioner was not recorded in the Jamabandi or the record of rights during the sale proceedings is palpably a perverse finding. The certified copy of Jamabandi filed clearly shows that the order of mutation was passed by the Sub-Deputy Collector on 18-8-72 and the revenue record was corrected on 3-7-73 whereas the sale proceedings were held in 1974, The learned Board has inadvertently misread the records and held that her name was not in the Jamabandi during the sale proceeding and as such she was not entitled to any notice. It is apparent on the face of the record that the finding is perverse. Admittedly no sale notice had been served on the petitioner. The sale without notice was void or invalid. In the result we have no hesitation in quashing the findings and to hold that the auction sale was invalid in law and the sale proceeding conducted without following the mandatory provision of law without notice was violative of the statutory provisions as well as the principles of natural justice.
6. The next finding of the Board that the petitioner could not have suffered any hardship or injury as she wag not in physical possession of land is unknown to law or any principles of justice, equity and good conscience. The land was sold at Rs, 70/-, whereas the value thereof was about Rupees 10,000/-. However, the learned Board held that the petitioner had a direct interest in the land. The finding to that effect reads as under :--
'However, her name was mutated in the Jamabandi by right of purchase, So she is to be considered as having interest in the land sold in auction.'
Therefore, the findings are conflicting and they cannot be reconciled. In the result, the conclusion that the petitioner did not suffer any hardship or injury cannot be sustained. Be that as it may, the learned Board has committed a grave error of jurisdiction in assuming that only a person in physical possession of land is entitled to have an illegal sale set aside and the Board had no Jurisdiction to entertain an application for setting aside of sale by a person interested in the land but not in physical possession. It is an error of law touching the Jurisdiction of the Board. Any person interested in the land whether in possession or not can apply and get a sale set aside. In this view of the matter, the impugned findings must be quashed.
This apart, the learned Board of Revenue assumed that 'possession is 9/10ths of the law' an adage taken as true to the full extent so as to mean that a person in possession can be ousted by one whose title is 9 times better than the occupant. Possession may be a good title where no better title appears. However, in a proceeding for setting aside a sale under Section 81 of 'the Regulation' possession of a person in the land is irrelevant. The questions that must be determined are-- (1) whether the applicant has any interest in the land, and, (2) whether there was hardship and/or injustice, As such, we are constrained to observe that the Board misguided itself in taking irrelevant materials into consideration and did not consider the relevant factors. This error is palpable and is a jurisdictional error. We find on the face of the record that the petitioner had purchased the land, obtained an order of mutation and got her name recorded in the revenue records, No mutation is granted unless a per-ison has title as well as possession. Under these circumstances, the finding of the learned Board that the petitioner was not entitled to relief as she had no physical possession of the land is perverse and must be set aside.
The Board has held that the application is barred by limitation as the petitioner could not explain every day's delay from 9-9-76 to 25-9-76, that is a delay of about 15 days. The petitioner has stated in clear terms that she had to obtain the certified copy of the orders and the relevant records and thereafter could present the application on 25-9-1976. It is apparent that it took about 5 days to obtain the certified copies and it is also clear that one had to come from Barpeta to Gauhati, corsult lawyer and file the application. The learned Board ought to have taken a reasonable view of her application for condonation of delay under Section 5, Limitation Act, 1963. We are not very much impressed with the reasons for rejection of the plea. However, we do not propose to discuss about them as we find that the application was admittedly presented within the period of limitation. Section 81 of the Assam Land and Revenue Regulation, reads as follows:--
'81. The Board may, on application made to them at any time within one year of a sale becoming final under Section 80, set the sale aside on the ground of hardship or injustice.'
7. It is apparent that an application for annulment of sale on the ground of hardship or injustice can be presented 'within one year of a sale becoming final under Section 80 of the Regulation.' The sale was held on 31-7-1974 and became final on 29-9-1974. The petitioner derived knowledge of the sale on 9-9-1976. The learned Board of Revenue also accepted that she had knowledge of the sale only on 9-9-76. Now the crucial question is whether the period of one year shall commence from 9-9-1976 (the date of knowledge) or from 29-9-1974 (when the sale became final). It will be seen that the period of limitation has been statutorily determined as one year from the date of a sale becoming final. It is apparent that when notice is served to a person entitled to such notice, the period shall undoubtedly be the said period fixed in Section 81. After service of due proclamation and notice a sale takes place. A defaulter being aware of a proposed sale may pay up the arrears and fees and have the sale stayed under Section 75 of the Regulation. Further, a defaulter may make an application under Section 79 to set aside a sale on the ground of some material irregularity or mistake in publishing or conducting it within 60 days from the date of sale. As such, a defaulter gets two chances, either for stopping the sale or setting aside the sale, apart from his right to make an application under Section 81 of 'the Regulation'. Therefore, 'the Regulation' envisages due service of notice and provides three opportunities to a defaulter, to stay, set it aside and annal a sale -- Vide Sections 75, 79 and 81 of the Regulation respectively. A person can avail of the remedies under Sections 75 and 79 only if he gets a proper notice. These rights are denied to a person who does not get a notice, though entitled. Therefore, the question arises whether the expression 'one year of a sale becoming final under Section 80' applies with equal vigour to a defaulter who does not get any notice of the sale though entitled to. If the answer is in the affirmative, in our opinion, it would be unjust, improper and unconscionable. There is no provision in 'the Act' as to what would happen if a sale is conducted without serving proper notice to a defaulter, to which he is legally entitled. In such a contingency, if the aggrieved person comes to know of the sale after the expiry of one year prescribed for presenting an application under Section 81, he will be deprived of the remedy under Section 81 for no fault of his. Should he be permitted to suffer for gross illegalities and injustice caused by the officials It would be absurd and against the principles of 'fair play' to deprive such a person of his legal remedy for no fault of his. It would amount to frustration of right of appeal by breach of mandatory procedural duty -- potent dangerous 'a modus operandi' or device to bear with. Having regard to the scheme of 'the Regulation' we hold that when notice is duly served on a defaulter the rigour of Section 81 shall undoubtedly apply and he must present an application within a year from the date of the sale becoming final, how-ever, when he does not receive any notice, which he is legally entitled to have, the period of limitation under Section 81 of 'the Regulation' must commence from the date of knowledge, actual or constructive, of the sale becoming final. We heavily rely on Harish Chandra v. Denuty Land Acquisition Officer, AIR 1961 SC 1500, Madar Lal v. State of U. P., AIR 1975 SC 2085 and Assistant Transport Commissioner v. Nand Singh, (1979) 4 SCC 19.
In Harish Chandra (Supra) the Supreme Court observed:
'The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to Section 16 in a literal or mechanical way.......where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned.'
In Madan Lal (supra) and Nand Singh (supra) their Lordships accepted the above principles and augmented further ratiocinations. The Supreme Court has held that it is a fundamental principle of justice that a party whose rights have been affected by an order must have notice of it.
8. In our opinion, when there is a duty to serve notice in order to exercise the right to put a property to sale the failure to comply with the Rules renders the sale a nullity. Denial of the right to prior notice and opportunity to be heard, namely, the principles of 'Audi Alteram Partem'' rule vitiated the sale as void ab initio and on that ground alone the sale is liable to be quashed.
9. We hold that the period of limitation under Section 81 of 'the Regulation' runs from the date of notice (sic) (knowledge?) either actual or constructive of the making of the order of sale becoming final under Section 80 of the Regulation when no notice is served to a defaulter. The application was well within time from the date of knowledge and the findings of the Board that the application was barred by limitation must be quashed which we hereby do. We hold that the sale conducted in violation of the principles of 'Audi Alteram Partem' rule read with the statutory requirement of service of notice rendered the sale void or invalid. In the result, we set aside the sale and do not consider it to be a fit case to remit to the Board of Revenue. We direct the petitioner to deposit the arrear of revenue and fees, the costs of the sale, the claim for interest at the rate of 6 per cent per annum on the purchase money as also all intermediate payments of Government dues which might have been made by the auction purchaser (Respondent No. 3), to the appropriate authority. In view of the annulment of the sale, the sale certificate, if issued, in favour of Respondent No. 3, shall be cancelled and the title to the property sold shall vest in the petitioner on and from the date of payment of the arrear revenue etc. by the petitioner, Necessary corrections in the revenue records shall be made in due course,
10. In the result, we allow the application, make the Rule absolute with the above direction or order. However, there will be no order as to costs.
N.L. Singh, J.
11. I agree.