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Gitabai W/O. Shantaram Deshmukh Vs. Prabhavati W/O. Balkrishna Deshmukh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2370 of 1976
Judge
Reported in(1982)84BOMLR412
AppellantGitabai W/O. Shantaram Deshmukh
RespondentPrabhavati W/O. Balkrishna Deshmukh
DispositionPetition allowed
Excerpt:
maharashtra land revenue code (mah. xli of 1968), sections 207, 208, 247, 178, 181, 183, 191, 192, 193, 197, 200, 202, 203, 13(4) - maharashtra realisation of land revenue rules, 1967, rules 11, 12 -- scope of proviso to section 208 -- nature of powers under sections 207, 208 -- sub divisional officer exercising powers of collector delegated under section 13(4) -- sub divisional officer confirming auction sale of immoveable properties -- resident deputy collector whether can entertain appeal against order passed by sub divisional officer confirming auction sale -- maharashtra co-operative societies act, 1960 (mah. xxiv of 1961), section 101.;section 207 of the maharashtra land revenue code deals with the procedure to be followed by the party, if according to him, the auction sale has.....bhonsale, j.1. this petition filed by one gitabai w/o. shantaram deshmukh under article 227 of the constitution of india challenges the order passed by the learned minister for state for revenue, government of maharashtra, shri b.j. khatal, setting aside the two concurrent orders passed by the learned commissioner, nagpur division, nagpur and the resident deputy collector, amravati, dated september 8, 1969 and october 4, 1968 respectively, and confirming the order of sale effected by the special recovery officer and the order confirming the sale passed by the sub-divisional officer, amravati, dated june 29, 1968 in respect of two fields belonging to- the petitioner gitabai, i.e. field survey no. 30 of and field survey no. 17 of dasapur, both of tahsil and district amravati.2. the.....
Judgment:

Bhonsale, J.

1. This petition filed by one Gitabai W/o. Shantaram Deshmukh under Article 227 of the Constitution of India challenges the order passed by the learned Minister for State for Revenue, Government of Maharashtra, Shri B.J. Khatal, setting aside the two concurrent orders passed by the learned Commissioner, Nagpur Division, Nagpur and the resident Deputy Collector, Amravati, dated September 8, 1969 and October 4, 1968 respectively, and confirming the order of sale effected by the Special Recovery Officer and the order confirming the sale passed by the Sub-Divisional Officer, Amravati, dated June 29, 1968 in respect of two fields belonging to- the petitioner Gitabai, i.e. field survey No. 30 of and field survey No. 17 of Dasapur, both of Tahsil and District Amravati.

2. The petitioner Gitabai owns several fields out of which two fields, survey No. 30 admeasuring 13.34 acres assessed to land revenue at Rs. 14/- of village Januna and Held survey No. 17 admeasuring 15.10 acres assessed to land revenue at Rs. 30/- of village Jasapur, were mortgaged with the Jaruma Sahakari Society for a loan of Rs. 3240- in the year 1961. It seems that the petitioner widow fell in arrears of payment of loan so obtained from the .jaruma Sahakari Society and ultimately for non-payment of the arrears of loan so obtained by her, the Registrar of Co-operative Societies issued a certificate in favour of the said society under the provisions of Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act'). As per the provisions of Sub-section (3) of Section 101 of the Act, a certificate granted by the Registrar under Sub-sections (1) and (2) shall be final and a conclusive proof of the arrears stated to be due therein and the same shall be recoverable according to the law for the time being in force for the recovery of the land revenue. It is not known from the record of this case as to whether the petitioner Gitabai was noticed before the Registrar granted the certificate under Section 101 of the Act. However, since the certificate is not challenged by the learned Counsel for the petitioner, we do not think it proper to go into the question of correctness of the certificate itself.

3. After issuance of the certificate, recovery proceedings were started by the Special Recovery Officer and Naib Tahsildar, Amravati for the recovery of the arrears, as if they were arrears of land revenue. Since the Special Recovery Officer found that the attachment of moveable property was of no assistance in recovering the arrears due from and payable by the petitioner, he proceeded to attach the above mentioned immoveable property. He ultimately sold these lands in auction and which auction sale was confirmed by the Sub-Divisional Officer, Amravati on June 27, 1968.

4. As will be presently indicated, we are of the opinion that the Special Recovery Officer and Naib Tahsildar, Amravati has committed several irregularities and illegalities in the recovery proceedings which have resulted in a grave miscarriage of justice. We are also of the opinion that the Special Recovery Officer had almost conspired with the Police Patil, Shri Balkrishna Deshmukh of village Januna, who hand in glove with the Special Recovery Officer had almost managed to have these two lands auctioned and sold for a paltry amount, keeping the petitioner widow completely in the dark about the proclamation as well as the auction sale itself. We are constrained to observe that the petitioner widow has been deprived of her two important and valuable lands admeasuring to the extent of 30 acres and it is the Special Recovery Officer and Naib Tahsildar, Amravati Shri P.S. Yeotikar and the Police Patil Shri Balkrishna Deshmukh are responsible for the same.

5. In order to appreciate the nature of this petition, it will be necessary for us to trace chronologically the events that had led to the proclamation and auction sale of these lands of the petitioner widow, Though the counsel for the petitioner and the petitioner had not questioned the legality and the correctness of the certificate issued by the Registrar under Section 101 of the Act, it is surprising that the certificate itself bears no date of issuance. The certificate issued under Section 101(2) of the Act is in a printed form and the blanks seem to have been filled in. The principal amount shown to be due from the petitioner is Rs. 3000/- together with penal interest at Rs. 10.50% till realisation. The Certificate is signed by the Assistant Registrar, Co-operative Societies, Amravati. Further it bears no date whatsoever. Then we have on record an attachment warrant which indicates that until the end of December 1967, the petitioner Gitabai was in arrears of Rs. 2002/- as well as interest and as she was in arrears in the said amount, the lands of the petitioner referred to above and two other lands in Jasapur and Januna came to be attached by an order dated November 16, 1967. On a report of the Naib Tahsildar/Special Recovery Officer in Revenue Case No. 49 of 1966-67/14/19 of Januna, which again bears no date, he sought sanction of the Sub-Divisional Officer to sell the said lands as petitioner Gitabai was in arrears of Rs. 3240/- on account of Januna Sahakari Society's overdues. At this stage, it is pertinent to note that though the petitioner's lands were attached and recovery proceedings had already commenced, admittedly she had paid part of these arrears, i.e. Rs. l,286/- plus Rs. 74/- interest on May 27, 1967 and as per order sheet, dated October 24, 1967, the petitioner was in arrears of Rs. 2002/- plus Rs. 160/- interest. However, the petitioner further paid an amount of Rs. 990/- through her nephew Shri Madhaorao Deshmukh on December 30, 1967, Therefore, by the end of December 1967, the petitioner was in arrears of an amount of only Rs. 1012/- plus interest. Inspite of this clear position, the proclamation issued by the Special Recovery Officer in Form 'E' under Section 135 of the old M.P. Land Revenue Code, 1954 shows that these lands were to be auctioned on April 25, 1968 at Nandgaon Khandeshwar. In all lout lands were shown, in this proclamation. In the last column, the arrears from the petitioners were shown to be Rs. 32407- plus penalty of Rs. 330/-, as well as interest, the amount of which is not specified, the total being Rs. 3570/-. Ultimately the auction was held on May 2, 1968.

6. Respondent No. 1, Prabhavati W/o. Balkrishna Deshmukh is supposed to have purchased the first land for Rs. 1400/- only. The second land was purchased by respondent No. 3, Mandakini W/o. Murlidhar Deshmukh, again for a paltry sum of Rs. 3,000/-.

7. Admittedly, neither of the auction purchasers had paid one-fourth of the amount on the same day, i.e. May 2, 1968. Again, according to the provisions of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as 'the Code'), they had not paid the balance amount within the specified time. This auction sale was concluded in the month of may 1968 and petitioner Gitabai had no idea of this auction sale, but there was a rumour in the village and she learnt in the first week of July 1968 that her two lands were sold in auction by keeping her in dark and, therefore, she filed an appeal to the Resident Deputy Collector, Amravati under Section 247 of the Code on July 10, 1968. The petitioner had raised several contentions in this appeal before the Resident Deputy Collector. Some of the important contentions raised by her and grounds adopted by her in the said appeal can be briefly referred to as follows:

8. Initially there was no notice of demand and notice of alleged auction sale to the petitioner herself. Several material irregularities, mistakes and fraud were committed by the Special Recovery Officer in publishing and conducting auction sale and proper procedure for auction sale of immoveable property was not followed. It was further stated in her appeal memorandum (hat petitioner had paid substantial part of the arrears and that she would have paid the balance amount if only she had known the date of the proclamation. It was her contention that she was completely kept in dark by the Special Recovery Officer, who had made common cause with the Police Patil, Balkrishna Deshmukh to deprive her valuable landed property.

9. The Resident Deputy Collector in a well considered judgment had exhaustively scrutinised all the circumstances and traced the history of the proceedings from the issuance of the certificate under Section 101 of the Act, till the date of auction sale of these two lands. In a reasoned judgment, the teamed Resident Deputy Collector had come to the conclusion that the entire proceedings were rendered doubtful as several illegalities and irregularities were committed by the Special Recovery Officer. In para 10 of his judgment, he has pointed out that fixing of sale at a village situated at a distance of 20 miles from Januna in contravention of the rules in that respect, the non-service of notice on the defaulter, absence of outsider bidders other than the relatives of the Police Patil, Balkrishna Deshmukh, action to put both the survey numbers to auction when the first sale mainly satisfied the full arrears and meagre price tendered in the auction sales of the fields and above all the respondents nos. 2 and 3, i.e. auction purchasers not at all being present on the spot when the auction took place, were all circumstances which concluded that there was room to suspect some designs or contrivance in the sale held. The learned Resident Deputy Collector also observed that the appeal filed by the petitioner Gitabai was maintainable as the appeal was against the order confirming the sale and even though the petitioner did not file an application under Section 207 of the Code, it did not affect the maintainability of the appeal. According to the learned Resident Deputy Collector, as the petitioner did not know about the recovery proceedings and the fact that the sale was held some 20 miles away from where the property was situate, the appeal filed by her under Section 247 of the Code was maintainable. The learned Resident Deputy Collector, therefore, allowed the appeal of the petitioner landlady and directed the possession of the two lands sold in auction to be restored to her forthwith and that proper action in conformity with the rules be taken by the Special Recovery Officer if the arrears were still outstanding against the petitioner defaulter.

10. The respondents Nos. 1 and 2, auction purchasers, carried an appeal to the Commissioner, Nagpur Division, Nagpur, being aggrieved by the order passed by the learned Resident Deputy Collector. The learned Commissioner heard both the parties and by his judgment dated September 8, 1969 confirmed the order passed by the learned Resident Deputy Collector and held that the Resident Deputy Collector had correctly set aside the auction sale in favour of the respondent Nos. 1 and 2, i.e. appellants before the; Commissioner. In coming to this conclusion, apart from upholding the reasoning adopted by the Resident Deputy Collector, the learned Commissioner had added his own reasons. According to him, admittedly the petitioner widow Gitabai was kept in the dark about the issuance of the proclamation as well as the date on which the auction sale was to be held in Nandgaon-Khandeshwar about 20 miles away from where the lands were situate. In his view, that itself was contrary to the provisions of the Code as well as the rules framed thereunder. He also reiterated more strenuously the reasons given by the Resident Deputy Collector that the proclamation itself was basically defective inasmuch as it showed the amount of arrears which were in fact not due from the petitioner and for that reason alone the auction sale was liable to be set aside. He also observed that one fourth of the amount of auction sale was not deposited on the same day, i.e. May 2, 1968. As far as the maintainability of the appeal before the Resident Deputy Collector, the learned Commissioner repelled the arguments advanced on behalf of the two auction purchasers. In his view, as the proclamation of sale itself was defective and as the sale was held at a place 20 miles away from the place where the property was situate and on the ground that there was no notice to the petitioner widow, the sale itself was void ab initio and, therefore, the question of making an application under Section 207 of the Code for setting aside the sale on the ground of irregularities, mistakes, fraud etc. did not arise. He concluded by observing that the two ladies were related to the Police Patil, Balkrishna Deshmukh, who in collusion with the Special Recovery Officer managed to put the fields of the petitioner widow to auction sale with the sole intention to get them purchased for the respondents Nos. 1 and 2. It was quite clear, according to him, that there was ho chance to the petitioner landlady to challenge that sale or confirmation of sale except by filing an appeal before the Resident Deputy Collector. He, therefore, passed his order on September 8, 1969 dismissing the appeal filed by the two auction purchasers, the respondents Nos. 1 and 2 herein.

11. It must be mentioned here that as against the order passed by the Commissioner, the respondent auction purchasers filed a writ petition under Article 227 of the Constitution in this Court. When it came for admission on September 23, 1969, the petition was dismissed in limine by a Division Bench of this Court consisting of Padhye and Bhole JJ. It must be observed that the respondent auction purchasers had suppressed this fact in the Return filed by them in this Court and further when they filed the Revision Application before the State Government in the month of October 1969, this fact was again deliberately concealed in their Revision Memorandum. If the Government had the knowledge of the dismissal of this writ petition in limine, it might not have entertained the Revision Application filed by the respondents Nos. 1 and 2, auction purchasers.

12. Inspite of the dismissal of the aforesaid writ petition in limine: (Writ Petition No. 1009 of 1969), the two auction purchasers filed a Revision Application before the Minister for State for Revenue, Government of Maharashtra, and the same came to be decided on November 21, 1975. The learned Minister for State for Revenue set aside both the orders passed by the Resident Deputy Collector and the Commissioner, Nagpur Division, Nagpur and restored the order dated June 27, 1968 passed by the Sub-Divisional Officer, confirming the auction sale. In allowing the Revision, the learned Minister accepted the arguments advanced on behalf of the two auction purchasers, that in the absence of an application being filed under Section 207 of the Code within a period of 30 days, the Resident Deputy Collector had no jurisdiction to set aside the auction sale and allow the appeal. After considering the provisions of Sections 207 and 208 of the Code, the learned Minister also considered the proviso to Section 208 of the Code and observed as follows:.No doubt, the proviso to this section empowers the Collector to set aside the sale even in the absence of such an application if he has reason to think that the sale ought to be set aside. It has to be remembered here that the power which is given to the Collector under Section 208 has to be exercised by him as an authority who has the initial power of confirming or setting aside the sale. In other words, the Collector cannot exercise the power under Section 208 in appear.

In para 6 of his reasoning, the learned Minister also observes that the two landladies who were purchasers in auction sale had no opportunity of disproving the case of the defaulter Gitabai that the sale suffered from material irregularity, mistake or fraud, which had been committed in publishing or conducting the auction sale. In this view of the matter, the learned Minister allowed the Revision Application and set aside the orders passed by the Commissioner, Nagpur Division, Nagpur and by the Resident Deputy Collector, Amravati and restored the order passed by the Sub-Divisional Officer, Amravati, confirming the auction sale.

13. It is against this order of the learned Minister that the present petitioner Gitabai has filed the petition under Article 227 of the Constitution of India. The learned Counsel for the petitioners, Shri Kherdekar has taken us through the entire record and reiterated the grounds to be found in the judgments of the learned Resident Deputy Collector and the Commissioner. According to him, after the issuance of the certificate under Section 101 of the Act, though at one stage the petitioner was in the know of the recovery proceedings and that her nephew Madhaorao Deshmukh had in fact appeared before the Special Recovery Officer on December 31, 1966 on behalf of the petitioner and had prayed for adjournment, subsequently when the proclamation was issued and auction sale was held, the petitioner was never properly served and, therefore, she was completely kept in the dark about the date of auction sale in a place nearly 20 miles away from her village and no notice was given to net at all. The counsel contended, therefore, that apart from the several illegalities and irregularities committed by the Special Recovery Officer in conducting the sale, the fact that the auction sale was held behind the back of the petitioner and, more important, that the proclamation indicated an amount by way of arrears which in fact were not due from the petitioner, were sufficient grounds to set aside the auction sale. As far as the maintainability of the appeal before the Resident Deputy Collector was concerned, the learned Counsel contended that such an appeal was maintainable even in the absence of an application being made under Section 207 of the Code.

14. As against this, the learned Counsel Shri Sinha for the auction purchasers, respondents Nos. 1 and 2, made submissions both on merits as well as on legal aspect of the auction sale held by the Special Recovery Officer. As far as the merits of the case were concerned, according to him, the petitioner was in the know of the recovery proceedings since Madhaorao Deshmukh, her nephew, though not a power of attorney had appeared and asked for an adjournment. Therefore, it could not be said, according to the learned Counsel, that the recovery proceedings, the proclamation as well as the auction sale were held behind her back. As far as serving of notice, he drew our attention to the endorsements on the proclamation and the notice that petitioner Gitabai had refused to accept the service of proclamation as well as of the notice. As far as the maintainability of the appeal before the Resident Deputy Collector was concerned, the learned Counsel contended that if all the submissions made on behalf of the petitioner were taken into consideration cumulatively, it only meant that the auction sale did not suffer from an irregularity, mistake or fraud. In that view, also the petitioner who was in the know of the recovery proceedings ought to have filed an application under Section 207 of the Code. Apart from that he made an important submission that the Sub-Divisional Officer, under Section 13(4) of the Code performs all the duties and functions and exercises all the powers conferred upon the Collector by the Code or any law for the time being in force, subject to the provisions of Chapter XIII of the Code. In other words, what the counsel contended was that in confirming the auction sale, the Sub-Divisional Officer was a delegate of the powers of the Collector under the Code and the Collector having exercised all those powers, there was nothing to be appealed from, to the Collector under Section 247 of the Code. As far as the proviso to Section 208 is concerned, the submission which was made by the learned Counsel for respondents before this Court and which found favour with the Minister was that such power was to be exercised acting initially and not as an appellate authority. According to him, therefore, the appeal to the Collector itself was not maintainable and what ought to have been filed was an application under Section 207 of the Code,

15. In support of his contention, he relied on two decisions, one of the Supreme Court in Roopchand v. State of Punjab : AIR1963SC1503 and the other of the Division Bench of this Court in Sulochana v. Commissioner, Nagpur Division : AIR1968Bom88 . We will have an occasion to advert to these decisions a little later.

16. If the provisions of the Code and the rules framed thereunder are read together, it would be clear that there is a complete self-contained Code in itself regarding the realisation of land revenue and other revenue demands. At this state, it only needs to be remembered that the certificate which was issued by the Registrar of Co-operative Societies under Section 101(2) of the Act is final and conclusive regarding the amount of arrears stated to be due therein. Sub-section (3) of Section 101 of the Act reads as follows:

(3) A Certificate granted by the Registrar under Sub-section (1) or (2) shall be final and conclusive proof of the arrears stated to be due therein, and the same shall be recoverable according to the law for the time being in force for the recovery of land revenue.

(emphasis supplied), (herein indicated in italics).

17. Chapter XI of the Code deals with the realisation of land revenue and other revenue demands. Since the arrears mentioned in the certificate issued by the Registrar of Co-operative Societies are recoverable as land revenue, the provisions of Chapter XI shall apply mutatis mutandis. The relevant sections for our purpose to which we shall make a brief reference, are 178, 181, 182, 185, 191 to 195, 197, 200, 202, 203, 207 and 208. Rules 11 and 12 of the Maharashtra Realisation of Land Revenue Rules, 1967 (hereinafter referred to as 'the Rules') are applicable to the facts of this case, which we shall refer a little later.

18. If the scheme of the Code in Chapter XI is taken into consideration, it will be clear that in the recovery proceedings, the Special Recovery Officer has to observe the statutory provisions both in the Code as well as the rules. For example, he has to issue a notice of demand to the defaulter initially. Then under the provisions of Section 181 of the Code, the Collector (Special Recovery Officer) has a power to attach immoveable property other than the land on which the arrear is due. Under Section 182 of the Code, the Collector has a power to attach defaulter's immoveable property and take it under his management. The procedure in effecting sales is laid down in Sections 192 and 193 of the Code and it will be clear from these provisions that the proclamation which is to be issued in the prescribed form has to specify the time and the place of the sale and the notice of the proclamation has to be given by beat of drum or other customary modes at both the headquarters of the taluka and in the village in which the immoveable property is situate. Under Section 193 of the Code, a written notice of the intended sale of immoveable property and the time and place thereof shall be affixed at the office of the Collector of the District, the office of the Tahsildar of the taluka in which the immoveable property is situate, the chavdi or some other public building in the village in which it is situate and the defaulter's dwelling place. Sections 200 and 202 of the Code deal with the mode of payment when sale is subject to confirmation and as to when the deposit is to be made by the purchaser in the case of sale of immoveable property and as to when the balance amount has to be paid. Section 207 of the Code deals with the procedure to be followed by the party, if according to him, the auction sale has suffered from material irregularity or mistake or fraud, in publishing and conducting the sale. Under Section 208 of the Code, if no such application is made within a period of 30 days or if such an application is made and rejected, the Collector shall make an order confirming the sale. The proviso to this section empowers the Collector to set aside- the sale on grounds other than those mentioned in the application or even if no application has been made. In view of these clear provisions, we have to examine whether the Special Recovery Officer has followed these mandatory provisions contained in the statute as well as in the rules framed thereunder.

19. Rules 11 and 12 of the Rules are as under:

11. ATTACHMENT OF IMMOVEABLE PROPERTY. - (1) The attachment of immoveable property under sections 181, 182 and 183 shall be effected by an order to be issued by the Collector in Form 4 prohibiting the defaulter from transferring or charging the property in any way and prohibiting all other persons from taking any benefit from such transfer or charge.

(2) The order shall be proclaimed by the Tahsildar or Naib Tahsildar at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and also on the notice board of the office of the Talathi.

(3) The order shall take effect as against purchasers for value in good faith from the date when a copy thereof is affixed on the property and against all other transferees (torn the defaulter from the date on which such order Is made.

12. SALES OF FORFEITED, DISTAINED OR ATTACHED PROPERTY. (1) Sales of forfeited, distained or attached property shall ordinarily be held in the town or village in which the property is situated.

(2) Proclamations and written notices of such sales shall be issued

(a) in Form 5 in the case of forfeited property)

(b) in Form 6 in the case of distained property;

(c) in Form 7 in the case of attached property.

20. We have examined the entire record of this case and also have carefully gone through the judgments of the learned Resident Deputy Collector as well as the Commissioner, Nagpur Division, Nagpur and on examining the record in its entirety, we have come to the conclusion that the Special Recovery Officer in collusion with the Police Patil, i.e. the husband of auction purchaser, respondent No. 1, Prabhavati has contravened almost all the provisions of the Code and the Rules stated above. We may summarise at this stage the findings arrived at by the Resident Deputy Collector as well as the Commissioner as below:

(1) The attachment of immoveable property was not in accordance with Rule 11 of the Rules.

(2) The proclamation itself did not correctly indicate the amount of arrears due from the petitioner landlady and on that ground alone the auction sale was liable to be set aside.

(3) The auction sale was in fact held in a place 20 miles away from the place where the lands were situate and that again was a material irregularity in holding the auction sale.

(4) When the auction sale was adjourned from April 25, 1968 to May 2, 1968, there was no proclamation as to at which place the adjourned sale would be held.

(5) Admittedly, the petitioner landlady has made substantial payment, nearly two thirds of the arrears due from her and as there was no individual personal service of the notice on her, she had no opportunity to pay the balance of the amount due before the auction sale was held at Nandgaon-Khandeshwar.

(6) The forms in which the proclamation was issued were forms under the Madhya Pradesh Land Revenue Code and not under the Maharashtra Land Revenue Code. Admittedly by the time the proclamation was issued, the Maharashtra Land Revenue Code, 1966 had already come into force.

(7) That all the bidders in the auction sale in respect of both the lands were the close relatives of the Police Patil Balkrishna Deshmukh.

(8) What was most surprising was that both the auction purchasers were in fact never present at the spot of the auction sale. Even persons who had signed on their behalf in knocking down the sale did not have power of attorney in their favour.

(9) No outside bidders were ever present.

(10) The amount of arrears that were due from the petitioner landlady was about Rs. 1200/- and the first land at Januna was sold for Rs. 1400/-. There was in fact no occasion to sell the land at Jasapur. This action on the part of the Special Recovery Officer to put to auction the second land at Jasapur without any necessity also rendered the actions of the Special Recovery Officer contrary to the provisions of the Code and the Rules.

(11) The inadequacy of the price or the very low price for both the lands is another factor which amounted to material irregularity in the auction sale. Admittedly field survey No. 30 admeasuring 13.34 acres situate at village Januna was knocked down in the auction sale for a paltry amount of Rs. 1400/-. This Court can take judicial notice that even in the year 1968 13.34 acres of land could not have been sold for such a paltry amount of Rs. 1400/-.

(12) Again there was no need to auction the second land to the extent of 15.10 acres of field survey No. 17 of Jasapur. This was again sold for an amount of Rs. 3000/-. This could not be said to be a fair price both for the extent and quality of the lands. The first land is assessed to land revenue of Rs. 14/- while the second land at Rs. 30/-. That itself indicates the good quality of the lands.

21. What is inconceivable in this case is that the petitioner widow defaulter who had paid substantial amount of arrears due from her would not have paid the remaining balance and would have allowed the said lands to be put to auction for such a paltry amount. The only inescapable inference that flows from the consideration of all facts is that petitioner Gitabai is right in contending before this Court that she was never personally served after her nephew had taken an adjournment and the entire publication of the proclamation and the conduct of sale were held behind her back. It has transpired from the record that the auction purchasers had not even deposited one fourth of the amount on the same day, as per the rules. The fact that the sale took place at about 5.30 p.m. and that the bank was closed was not sufficient to contravene the rules in this regard. The record also shows that even the balance amount was not paid within the prescribed time limit.

22. If all these circumstances are taken into consideration, it is clear that the procedure regarding service of notice to the petitioner, issuing of proclamation and the conduct of auction sale suffered from serious material irregularities and either taken individually or cumulatively, both the sales are liable to be set aside.

23. We agree with the learned Resident Deputy Collector and the learned Commissioner that the conduct of the Special Recovery Officer was not above suspicion. We are in fact of the opinion that an officer of the stature of Special Recovery Officer, Naib Tahsildar had deliberately chosen to flout the mandatory provisions of the Code as well as the rules and his intention in doing so was not far to seek. The whole record from the beginning of the recovery proceedings till auction sale indicates that he has gone out of the way to help the Police Patil, Shri Balkrishna Deshmukh in his evil design of grabbing the widow's property for a nominal and paltry amount of Rs. 4400/-. The total land comes to about 30.00 acres and it is with the active help of the Special Recovery Officer/Naib Tahsildar that the Police Patil Balkrishna Deshmukh has managed to deprive the petitioner widow of her valuable property, who also happens to be one of his relatives. Taking advantage of the fact that the petitioner is a widow and that her son is also insane, the Police Patil had nearly grabbed this valuable land, but for the present petition filed in this Court.

24. We are constrained to observe that this conduct on the part of the Special Recovery Officer is most unbecoming of a Government Officer, whose duty is also to protect the interests of widows. In fact, under the Maharashtra Village Police Act, 1967 and the Maharashtra Village Police Patils (Recruitment, Pay, Allowances and other conditions of service) Order, 1968, there are many duties and functions that a Police Patil has to discharge, but instead unmindful of those duties he has chosen to deprive one helpless widow by grabbing her property in the name of his wife and other relatives. We hope that suitable action shall be taken against the Special Recovery Officer/Naib Tahlildar, Shri P.S. Yeotikar who was responsible for the conduct of auction sale as well as against the Police Patil of Januna, Shri Balkrishna alias Abbarao S/o. Warnanrao Deshmukh.

25. We must examine the submissions made by the learned Counsel Mr. Sinha appearing for respondent auction purchasers, that the appeal to the Resident Deputy Collector itself was not maintainable. After having examined his arguments carefully and having analysed the various provisions of the Code, we are of the opinion that the submission is misconceived-in principle and erroneous in detail. The main contention of the learned Counsel is that the Sub-Divisional Officer exercising the powers of the Collector, having confirmed the auction sale, the Collector could not have entertained the appeal filed by the petitioner widow. Chapter II of the Code in general deals with the Revenue Officers. In particular Section 13 of the Code deals with the powers and duties of the Revenue Officers. For our purpose Sub-section (4) of Section 13 of the Code is relevant and it reads as follows:

13(4) The Sub-Divisional Officer shall subject to the provisions of Chapter XIII perform all the duties and functions and exercise all the powers conferred upon a Collector by this Code or any law for the time being in force, in relation to the sub-division in his charge.

Section 207 in Chapter XI which deals with an application for setting aside of sale of immoveables reads as follows:

207. (1) At any time within thirty days from the date of sale of immoveable property, an application may be made to the Collector to set aside the sale on the ground of some material irregularity, or mistake, or fraud in publishing or conducting it; but except as is otherwise provided in sections 208, 209 and 210, 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:

Provided that, such application may be made by a defaulter who is a person belonging to a Scheduled Tribe or any person on his behalf, within one hundred and eighty days from such date.

(2) If the application be allowed, the Collector shall set aside the sale, and direct a fresh one.

The later part of Sub-section (1) empowers the Collector, if it is proved to his satisfaction that the sale suffers from material irregularity or mistake either in publication or conduct of sale, to set aside the sale except as is otherwise provided in Sections 208, 209 and 210. Section 208 lays down that the Collector shall make an order confirming the sale, if on expiration of 30 days mentioned in Section 207, no application has been made for setting aside the sale or if it was made to him and rejected. As observed earlier, the proviso to this section deals with the powers of the Collector independent of the reasons arising out of an application under Section 207 of the Code.

26. The learned Minister seems to have treated the powers of the Collector under the proviso to Section 208 as if the Collector exercises the powers of appeal under that proviso. The learned Minister is right in his observations that the powers which the Collector exercises are the initial power of confirming or setting aside the sale. The learned Minister is also right that the Collector cannot exercise the powers under Section 208 in appeal. We have made it clear earlier that the powers on appeal exercised by the Additional Collector or the Resident Deputy Collector are exercised as per the provisions of Section 247 of the Code. It is not correct to state in this case that the power exercised by the Resident Deputy Collector was exercised under the proviso to Section 208.

27. The provisions of Section 208, as stated earlier, have to be read with the provisions of Section 207 of the Code. In Section 208, all that is provided is that the Collector shall confirm the sale, if no application as is contemplated under Section 207 is made within 30 days and if made is rejected. The proviso, however, confers wider power by way of an exception and says that if the Collector has reason to think that the sale ought to be set aside, he may after recording the reasons in writing set aside the sale, notwithstanding such an application as contemplated by Section 207 has been made on the grounds other than those alleged in any application made which has been rejected. The proviso to Section 208 of the Code carves out an exception and confers powers which are of greater amplitude and discretion if he comes to the conclusion that the sale has to be set aside, independent of the provisions of Section 207 of the Code. There may be several reasons for exercising such powers. For example, there may be collusion amongst the bidders, as is in this case, to knock down the property at a very paltry amount or the Collector may come to the conclusion that there were compelling reasons to set aside the sale notwithstanding no application having been made to set aside the sale on the ground of material irregularity, mistake or fraud in publishing and conducting the sale.

28. It is a well known principle of rule of interpretation that a proviso to a section in a statute only embraces the field which is covered by the main provision of which it is enacted as a proviso and to no other. The proviso, therefore, is an exception from what is clearly defined in the first part of Section 208 of the Code. As a general rule, therefore, a proviso is added to an enactment to qualify or create an exception to the enactment and ordinarily, a proviso is not interpreted as stating a general rule. It has been observed by Hidayatullah J (as he then was) in the case of S.B.K. Oil Mills v. Subhash Chandra : [1962]2SCR159 that:

As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily a proviso is not interpreted as stating a general rule.

If this is the clear position in law, then what the proviso to Section 208 of the Code provides is the very wide powers conferred upon the Collector to set aside the sale and where the sale is not set aside for the reasons mentioned in Section 207 of the Code. It is thus difficult to accept the interpretation placed on the proviso by the learned Minister that the Collector exercises powers in an appeal when he exercises powers under the proviso to Section 208 of the Code. As stated above, in fact the order passed by the Resident Deputy Collector in this case was under Section 247 and not under the proviso to Section 208 of the Code.

29. The question that falls for determination is whether the Resident Deputy Collector could have passed the impugned order - in other words whether he could have entertained the appeal against the confirmation of sale by the Sub-Divisional Officer. We have already quoted Sub-section (4) of Section 13 of the Code, which in fact lays down that the Sub-Divisional Officer shall perform all the duties and functions and exercise all the powers conferred upon the Collector by the Code. When a Sub-Divisional Officer, therefore, confirms the sale he merely exercises his statutory duties, functions and exercises powers conferred on him by the said sub-section. It is to be remembered that there are statutory duties and not delegated by the Collector. In no sense he could be regarded as a delegate of the Collector of these powers, functions and duties. In our view some important limitation is spelt out in this sub-section. These duties, functions and powers are to be exercised subject to the provisions of Chapter XIII of the Code, which speaks of appeals, revision and review. Under Section 247 of the Code, it is laid down as to when an appeal shall lie and Schedule E mentions as to which superior officer such appeals, revision and review shall lie. Item 2 of Schedule E of the Code clearly states that the Collector is the appellate authority to whom an appeal shall lie against an order passed by the Sub-Divisional Officer.

30. According to us, an important distinction has to be made. We are of the opinion that when the Sub-Divisional Officer confirms an auction sale, his act confirming the sale is only an administrative act. There is no question of exercising any appellate jurisdiction and since he performs the duties and functions and exercises functions which are statutory in nature, it cannot be said that he discharges appellate powers of the Collector at this stage. It is true that under Section 208 of the Code, in confirming the sale, the act of the Sub-Divisional Officer is not purely administrative in character. After analysing Section 208 of the Code, its proviso or even the provisions of Section 207 of the Code, it becomes clear that the decision of the Sub-Divisional Officer is not merely administrative but quasi-judicial in nature. Since, there is a lis, even if no application for setting aside the sale is made to the Sub-Divisional Officer, in exercise of his suo motu powers he can set aside the sale. Therefore, it could not be said that there is no lis. In any case, when he sets aside or confirms the sale under Section 207 or Section 208 of the Code, he has to hear the parties and then decide. Therefore, it can be regarded as a quasi-judicial order. But even if such a decision partakes quasi-judicial nature, it cannot be said that he exercises appellate powers vested in the Collector as provided in Section 247 of the Code in confirming or setting aside the sale.

31. Shri Salve, the learned Assistant Government Pleader drew our attention to a notification, to which a reference was made by the Collector, Amravati in a letter dated August 26, 1970 addressed to the Commissioner, Nagpur Division, Nagpur. It seems that after the Resident Deputy Collector allowed the appeal of petitioner Gitabai, a query was made from the Revenue Department as to how the Resident Deputy Collector could exercise appellate power. The letter itself has some relevance and of some consequence in this matter and, therefore, we would quote the second paragraph:

The Resident Deputy Collectors have been declared as Additional Collectors for purpose of Section 247 Maharashtra Land Revenue Code as per Notification No. UNF - 1467/114961 -R dated 3.12.1967. Hence an appeal shall lie under Section 247, Maharashtra Land Revenue Code to the Additional Collector-cum-Resident Deputy Collector from any decision or order passed by a Revenue Officer specified in column 1 of Schedule E under the Code, i.e. from any order of the Sub-Divisional Officer to Assistant or Deputy Collector who may be invested with powers of Collector by the State Government, It is immaterial whether the S.0.0. is empowered to perform certain functions of the Collector under section 13(4) of the Maharashtra Land Revenue Code.

32. From the notification referred to in this letter read with Sub-section (4) of Section 13 of the Code, it becomes clear that the Sub-Divisional Officer does not exercise appellate powers, because those are specifically saved by saying that the Sub-Divisional Officer shall perform his duties and functions and exercise all powers, subject to the provisions of Chapter XIII of the Code. In other words, what is saved is the appellate power of the Collector. On the one hand, the Sub-Divisional Officer may exercise statutory powers of Collector in confirming the sale, but that is not to say that he also exercises appellate powers of the Collector. The orders passed by the Sub-Divisional Officer either confirming the sale or setting aside the sale are still subject to the appellate power of the Collector. According to the above referred notification, the appellate powers of the Collector have been conferred upon the Additional Collector-cum-Resident Deputy Collector. Therefore, we see no defect in the maintainability of the appeal of the petitioner before the Resident Deputy Collector empowered with appellate powers of the Collector. This is the scheme of the Code to be found in Sections 13(4), 207, 208 and 247 of the Code as far as the powers of Sub-Divisional Officer and exercise of appellate powers by the Collector. Therefore, when the Sub-Divisional Officer exercises statutory powers under Sub-section (4) of Section 13, there is no question of his exercising the appellate powers of the Collector under Section 247 of the Code.

33. There is necessary distinction between the powers exercised by the Sub-Divisional Officer by virtue of the provisions of Section 13(4) of the Code. These powers, both administrative as well as quasi-judicial as contemplated in Section 207 and Section 208 of the Code are to be exercised as original statutory powers. In the very scheme of these provisions of the Code, these cannot be regarded as appellate powers vested in the Collector, as saved by Section 13(4) and as provided in Section 247 of the Code, read together. The width and extent of jurisdiction covered and powers conferred under Sections 207 and 208 on the Sub-Divisional Officer are, therefore, distinct from the width and extent of the area covered and powers conferred on the Collectors, which can be exercised by Additional Collector-cum-Resident Deputy Collectors. The former powers are original whether administrative or quasi-judicial, while the latter are appellate and are not to be confused with one another. Functions assigned to and powers conferred on the Sub-Divisional Officers are not powers of the Collector delegated, but are statutory powers vested in them. On the other hand, the Collector's appellate powers as provided under Section 247 of the Code are conferred on Additional Collectors-cum-Resident Deputy Collectors.

34. If this is the correct interpretation of the scheme contained in the Code, we do not see how the decisions on which the learned Counsel for auction purchasers, Shri Sinha had relied are of any assistance to him. In both these cases, the powers of the Superior Officers were exhausted when exercised by a subordinate officer.

35. In Sulochana's case (Supra), powers of enquiry were delegated by the Collector to the Land Acquisition Officer. These powers were quasi-judicial in character. When the Land Acquisition Officer (Sub-Divisional Officer) made a report under Section 5-A(2) of the Land Acquisition Act, as a delegate of the Collector, he had exhausted the quasi-judicial powers of the Collector and nothing remained to be done either by the Collector or by the delegate of the Collector. The Collector had no jurisdiction to make contrary recommendations since he had already exhausted his power. In adopting this view, the Division Bench of this Court had made a reference in para 6 of its judgment to Rupchand's case (Supra). After quoting a passage of that case, the learned judges relied on the ratio of that decision and held that the judicial powers to hear appeals against the order passed under the Act were exhausted by a subordinate officer delegated with the exercise of power of hearing appeals. In both the cases, it was, therefore, held that nothing remained to be done by the Collector.

36. We are of the opinion that the scheme of the Act in these two cases was that a subordinate officer was to exercise quasi-judicial functions of the superior officer and in Rupchand's case (Supra), even appellate powers were to be exercised by the subordinate officer. Once having exhausted those judicial functions and powers, the superior officers could not have exercised the powers once again.

37. The scheme in the Code is in fact contrary and all powers conferred on the Sub-Divisional Officer under Sub-section (4) of Section 13 of the Code are statutory functions, either administrative or quasi-judicial, but certainly not appellate and, therefore, we are of the opinion that after the Sub-Divisional Officer passed the order, either administrative or quasi-judicial in character, the appellate powers vested in the Collector by virtue of Section 247 of the Code still remained in tact with him and were not exhausted.

38. We find ourselves fortified in the view we have taken by the decision of the Supreme Court in C.A.T.A. Sales Co-op. Society v. A.P. Government : [1978]1SCR563 . In this case, the question was whether the Deputy Registrar who exercised the powers of the Registrar could be said to have exhausted the appellate powers of the Registrar himself. Under the scheme of the Andhra Pradesh Co-operative Societies Act, 1964, every other person appointed under Sub-section (1) of Section 3 of the said Act on whom the Government conferred power under Section 3(2) of the said Act was not to be equated with the Registrar. It was, therefore, manifest that the Deputy Registrar was subordinate to the Registrar for all purposes and was to act under the supervision of the Registrar, What was contended before the Supreme Court was that the Deputy Registrar having exhausted all the powers of Registrar, no power remained with the Registrar to exercise. Mr. Justice Coswami who delivered the judgment observed in para 15 of the judgment as under:

The question next arises whether the Registrar could entertain a petition under section 77 when the proceedings under section 16(5) were questioned by the appellant. It is strenuously submitted that the power exercised by the Deputy Registrar under Section 16 was the power of the Registrar delegated to him and, therefore, any order passed in those proceedings would be the order passed by the Registrar and, therefore, the Registrar was not competent to entertain a petition of revision against what may be described as his own order. In this context, the respondents rely upon a decision of this Court in Roop Chand v. State of Punjab.

39. In paragraph 19 of the judgment, the Supreme Court distinguished the judgment in Roopchand's case (Supra), and it held that when an officer acts as a delegate of the State Government, he exercises statutory power of appeal of the Government under Section 21(4) of the Act. Distinguishing the ratio of the case, Their Lordships further held that -

In the present case, it is true the power under section 16 is that of the Registrar but the Deputy Registrar exercises that power as empowered by the Government but always 'under general superintendence of the registrar.

Therefore, Their Lordships, distinguished the scheme of the Consolidation Act which the Supreme Court dealt with in Roopchand's case with the scheme of the Andhra Pradesh Co-operative Societies Act.

40. In the present case also we have observed earlier that all that the Sub-Divisional Officer exercises is the statutory power conferred on him subject to the provisions of appeal contained in Chapter XIII of the Code. He does not exercise appellate powers of the Collector and, therefore, we do not see how the contention of the learned Counsel for the respondent auction purchasers that Sub-Divisional Officer having confirmed the sale, no appeal could lie before the Collector is maintainable.

41. We are, therefore, of the opinion that looked at from any angle, this petition deserves to be allowed both on questions of law as well on facts. Distinction between the statutory powers of the Sub-Divisional Officer and the appellate powers of the Resident Deputy Collector and Additional Collector was not before learned Minister and he accepted the submission of the respondent auction purchasers that in the absence of an application under Section 207 of the Code, the appeal could not have been maintainable before the Resident Deputy Collector. On the short ground the learned Minister allowed the Revision. Except deciding this point as to whether an appeal was maintainable or not, no findings are given by the learned Minister on merits. In our opinion, the Resident Deputy Collector and the Commissioner have exhaustively dealt with the case on merits and both of them have written well reasoned judgments. Unfortunately the matter does not seem to have been argued before the learned Minister exhaustively.

42. Before parting with this case we are constrained to observe that the two officers who had to discharge responsible functions in the co-operative movement, as well as in the villages, as indicated above, had conspired and nearly deprived the entire valuable property of the petitioner widow. We hope that the Government will take suitable action as deemed fit against both the officers. A copy of this judgment is directed to be forwarded to the Secretary, Co-operation Department and the Secretary, Revenue Department of the Government of Maharashtra for further action.

43. The petition is allowed. Rule made absolute. Respondents Nos. 1 and 2, the auction purchasers, are directed to restore both the lands in question forthwith to the petitioner. In view of the conduct of the respondent auction purchasers, who are close relatives of the Police Patil, Balkrishna Deshmukh, they shall pay the costs of the petitioner throughout.


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