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K. Parvathamma Vs. the Commissioner of Excise (Board of Revenue), Govt. of Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1307 of 1967
Judge
Reported inAIR1970AP333
ActsTenancy Law; Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 - Sections 47; Hyderabad Land Revenue Act, 1317 - Sections 138
AppellantK. Parvathamma
RespondentThe Commissioner of Excise (Board of Revenue), Govt. of Andhra Pradesh, Hyderabad and ors.
Appellant AdvocateG. Haridatha Reedy, Adv.
Respondent AdvocateP. Krishna Reddy, Adv. for ;Govt. Pleader and ;B.P. Jeevan Reddy, Adv.
Excerpt:
.....area) tenancy and agricultural lands act, 1950, tenancy law and section 138 of hyderabad land revenue act, 1317 - petition filed challenging auction held by government - alleged that prior sanction ought to have been obtained under section 47 when agricultural lands are brought to sale under provisions of 1317 act - prior sanction under section 47 is required only before sale is confirmed under section 138 of land revenue act - revenue sale in favour of purchaser not yet confirmed - held, prior sanction not required. - - it was also urged that as the purchaser failed to deposit the balance of purchase money within 30 days the property should be reauctioned. on behalf of the government as well as the 5th respondent affidavits were filed in opposition contending that no..........lands act, 1950, when agricultural lands are brought to sale under the provisions of the hyderabad land revenue act (viii of 1317 fasil)?'2. in order to appreciate the point of controversy, it is necessary to refer to the facts and circumstances out of which the above writ petition has arisen as also the relevant provisions of law.3. the petitioner filed an application under article 226 of the constitution of india for the issued of a writ in the nature of mandamus directing the second respondent, the collector of hyderabad, to hold a fresh auction relating to file no. 1604/58/d5 on the basis of the following allegations. the petitioner's father became liable to pay a sum of rs. 18, 866-8-0 to the government being excise arrears and the said sum was sought to be realised by the.....
Judgment:

Krishna Rao, J.

1. The question involved in this petition which is posted before a Full Bench may be stated as follows.

'What is the stage at which prior sanction should be obtained under S. 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, when Agricultural lands are brought to sale under the provisions of the Hyderabad Land Revenue Act (VIII of 1317 Fasil)?'

2. In order to appreciate the point of controversy, it is necessary to refer to the facts and circumstances out of which the above writ petition has arisen as also the relevant provisions of law.

3. The petitioner filed an application under Article 226 of the Constitution of India for the issued of a writ in the nature of Mandamus directing the second respondent, the Collector of Hyderabad, to hold a fresh auction relating to file No. 1604/58/D5 on the basis of the following allegations. The petitioner's father became liable to pay a sum of Rs. 18, 866-8-0 to the Government being excise arrears and the said sum was sought to be realised by the Government under the provisions of the Hyderabad Land Revenue Act as arrears of land revenue. The properties of the petitioner's father situate in Jundapalli Village, Tandur taluk, Hyderabad district more particularly described in the affidavit filed in support of this Writ petition, were put for auction by the revenue officials on 16-5-1962, when the 5th respondent herein became the highest bidder for Rs. 15,300/- having deposited one fourth of the bid amount as required by law on the acceptance of his bid. The said auction bid was approved or sanctioned by the Collector as a result of which the auction was closed.

The petitioner thereupon filed writ petition No. 554 of 1962, her father having died by that time, challenging the auction held by the Government on various grounds and obtained stay of all further proceedings pending disposal of the said Writ petition. The Writ petition was ultimately dismissed on 13-12-1967 and as the order of stay was no longer operative, the collector issued a notice on 26-6-1967 calling upon the purchaser (5th Respondent) to pay the balance of the sale price. The 15th respondent having received the notice on 27-12-1967, immediately complied with the same by depositing the requisite amount on 28-12-1967. Before the sale could be confirmed the petitioner again approached this court by filing the present writ petition on 3-7-1967 and obtained stay of all further proceedings.

3a. The main point raised on behalf of the petitioner in this writ petition is that the auction held 16-5-1962 was illegal as the requisite sanction under section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act was not obtained and that the properties should therefore be put up for re-auction. It was also urged that as the purchaser failed to deposit the balance of purchase money within 30 days the property should be reauctioned. On behalf of the Government as well as the 5th respondent affidavits were filed in opposition contending that no sanction was necessary at the stage of the auction and that the auction purchaser could not deposit the balance or purchaser money on account of the order of stay issued by this Court in the previous writ petition and that there was therefore no need for conducting a fresh auction. When the writ petition came up for hearing in the first instance before Basi Reddy J., the case was posted before a Division Bench in view of the fact that the point raised herein was specifically left open in a previous decision of this court. After the case came up for hearing before the Division Bench consisting of the Acting Chief Justice and Kondaiah, J., the case was directed to be posted before a Full Bench as it was found necessary to resolve some apparent conflict of authorities which will be now referred to.

4. Before referring to the relevant authorities, it is necessary to set out the provisions of section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 which are as follows:

'47. (1) Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a court no permanent alienation and no other transfer of agricultural lands shall be valid unless it has been made with the previous sanction of the Tahsildar;

Provided..........'

Section 48 of the Act lays down the various circumstances to be taken into account for granting of sanction under section 47 and the procedure for obtaining sanction is laid down in the rules framed under the Act.

5. In Ambiah v. Mallanna, : AIR1964AP514 a Division Bench of this Court consisting of Chandra Reddy, C. J. and Anatarayana Ayyar, J. held (i) that the provisions of Section 47 (supra) not only apply to transfer inter vires but are equally applicable to a transfer by operation by law which takes place when property is sold in a court auction; (ii) that such sanction should be obtained even before the properties are attached by the decree-holder with a view to bring them to sale through court and that in the absence of such a s auction the order of attachment is illegal.

6. The correctness of the above decision, in so far as it declared the order of attachment as illegal, was questioned before a Full Bench in P. E. Ramakistiah v. M. Pochiah, (1967) 2 Andh WR 17 (FB) consisting of Jaganmohan Reddy, Narasimham and Venkatesam, JJ. Before the Full Bench that as the object of an order of attachment is merely to prevent the judgment-debtor from disposing of the property to the detriment of the decree-holder and that it does not operate to transfer any property under law no sanction was necessary under section 47 at the stage of attachment of the properties. The question as to the appropriate stage at which sanction should be obtained during a court sale was left open as it was beyond the scope of the reference before the Full Bench, But nevertheless it was observed by the Full Bench that sanction should no doubt be necessary for 'effecting a court sale'. In pursuance of the opinion given by the Full Bench, the case was posted for final disposal before a Divisional Bench consisting of Jaganmohan Reddy, O. C. J., and Krishna Rao, J., before whom the question as to the appropriate stage for obtaining sanction was raised. It was held by the Division Bench as follows:

'The net result of those discussion is that while there is no need for any permission under Section 47 for attachment of immovable property in execution of the decree, such a permission would be necessary before the confirmation of the sale. The auction and sale must first take place in order to determine who the purchaser is and once that is determined it is for the purchaser to apply for permission and then apply for confirmation'.

7. The principle laid down in : AIR1964AP514 applying the provisions of section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 to court sales which was left untouched by the subsequent Full Bench decision in (1967) 2 Andh WR 17 (FB) was followed and applied to the case of a revenue sale under the provisions of the Madras Revenue Recovery Act by a Division Bench of this Court (Chandrasekhara Sastry, J . and Krishna Rao, J.) in Narayana Reddy v. Collector, Nizamabad, (1968) 2 Andh WR 162 observing that the auction purchaser should obtain the necessary permission under section 47 from the Tahsildar before he obtains a valid title to the property on confirmation of the sale.

8. The result of the above decisions may be summed up as follows: The provisions of section 47 of the A. P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 requiring prior sanction of the Tahsildar for effecting an alienation or a transfer are equally applicable to transfers by operation of law when properties are sold auction by a civil court as well as by the revenue officials under the provisions of the Madras Revenue Recovery Act. In the case of private alienations the rule is well settled that prior sanction should be obtained before the registration of the document, that is, at the stage when the title to the property passes to the purchaser. Likewise, in the case of involuntary sales, sanction should be obtained before the sale in confirmed, that is, the stage at which there is a transfer of property by operation of law. Notwithstanding the directions given by the Division Bench in (1967) 2 Andh WR 17 (FB) that sanction should be obtained by the purchaser, that is the person whose bid at the auction is accepted before the order of confirmation the learned counsel for the petitioner argued that in view of the specific provisions contained in the Hyderabad Land Revenue Act which do not find a place in the C. P. C. or the Madras Revenue Recovery Act which do not find a place in the C. P. C. or the Madras Revenue Recovery Act, the requisite sanction should be obtained even before the Collector sanctions the auction and under section 134 of the Act which declares that the sale is concluded by the order of the Collector. In order to appreciate this subtle distinction, it is necessary to refer to the relevant provisions of the Hyderabad Land Revenue Act.

9. Section 132 provides that Collector should hold the sale by auction. Section 134 reads as follows:

134. Every sale of immovable property shall be finally concluded by he sanction of the Collector and that of movable property by the sanction of the officer empowered by the collector by a general or special order'.

Section 135 provides for the auction purchaser paying one-fourth of the bid amount and for payment of the balance within 30 days of the receipt of the Collector's notice. Section 136 empowers the Collector to re-auction the property if the balance of sale price is not paid as aforesaid. Section 138 enables the defaulter to file an application to set aside the sale on grounds of fraud, irregularity etc., in the conduct of the proceedings.

Section 139 provides for the final confirmation of sale as follows:

'139. If application for getting aside the sale is not made under the preceding section or has been made and rejected the collector shall make an order confirming the sale, and if he thinks that the sale may be set aside on reasonable grounds though no such grounds were set forth in the application rejected he may, after recording his reasons make an order setting aside the sale'.

When the sale is not so confirmed, the purchaser will be entitled to be refund of the purchaser-money under section 140. Section 141 provides for the consequences of the confirmation of the sale in the following terms:

'141. Where a sale of a holding for which an arrears of land revenue is due is confirmed in accordance with the aforesaid provisions, the Collector shall put the auction-purchaser into possession of the same and shall grant him a certificate to the effect that the person has purchased the occupancy right of the land. The certificate shall be treated as an authority for transfer of that land and the name of the auction-purchaser shall be entered into the village records as a patellar; and no suit against the purchaser whose name has been recorded in such certificate shall be entertained in a Civil Court on the ground that the Certificate holder is not in fact the purchaser but that by mutual agreement certificate has been made in his name'.

The above section provides for entering the name of the purchaser in the revenue records consequent upon the issue of a sale certificate and it so not necessary for out purpose to refer to the other provisions in detail.

10. It is seen from the above provisions that Section 134 of the Land Revenue Act represents on distinct stage which marks the conclusion of the induct of the auction. It corresponds to the provisions contained in Order 21 Rule 84 C. P. C. where by a person is declared as the purchaser at the auction. Even in the absence of such a specific provision like Section 134 what happens at a court sale or at a revenue sale under the Madras Revenue Act is exactly the same when the auctioning authority is satisfied with the highest bid and accepts the same accepts the same declaring the bidder as the purchaser. It is only after such a declaration and acceptance that the purchaser is called upon the deposit the advance amount of the purchase money. Thereafter within the time prescribed he should deposit the balance. In default of paying the balance, the provisions in the C. P. C. as well as in the Revenue Acts require that a re-sale should be conducted. A time limit is prescribed within which the judgment-debtor or the defaulter is entitled to raise objections to the sale and may apply to have it set aside on proof of certain irregularities. If no such application is filled or if an application is filled dismissed, the next and the final stage in the sale proceedings is reached when an order confirming the sale is passed by which the sale becomes absolute. It is said to be the duty of the court or the collector to make an order making the sale absolute. The passing of such an order confirming the sale marks the final stage when the judgment-debtor losses his title to the property and the auction-purchaser becomes the owner by operation of law. The sale certificate which is issued in pursuance of this order confirmation is said to be the evidence of the purchaser's title to the property. Section 141 of the Hyderabad Land Revenue Act provides for the issue if a Sale Certificate after an order of confirmation is passed under S. 139 followed by delivery of possession of the property in favour of the purchaser. There is, therefore no difference in principle between a court sale and revenue sale as regards the stage at which there is a transfer of title by operation of law. The sanction of the Collector under Section 134 if the Land Revenue Act is not I intended under law to transfer the title of the defaulter in favour of the purchaser. The expression 'sale shall be concluded by the sanction of the Collector' merely means that the process or the conduct of the auction comes to an end with the Collector's approval of the bid. Unless the Collector approves of the bid of any particular purchaser, the question of payment of oneforth of the purchase money and the balance does not arise. Hence the legal effect of Section 134 is merely to declare that a certain person is recognised as a purchaser. This declaration is obviously provisional in the sense that the sale will be ultimately confirmed in his favour provided that he complies with requirements and also provided that the sale is not set aside at the instance of the defaulter.

11. In support of the extreme contention raisedby the learned counsel for the petitioner that title to the property passes to the auction-purchaser when the Collector sanctiions the sale under S. 134 of the Land Revenue Act, reliance is placed upon a decision of the Allahabad High Court in S. Zalim Singh v. Mt. Bhagirathi, AIR 1949 All 127. It was a case in which after a court sale in execution of a mortgage decree and before its confirmation, an Act was passed prohibiting the sale of land belonging to an agriculturist. An application to set aside the sale which was confirmed subsequent to the said enactment was dismissed holding that there was no prohibition when the sale was effected and that as the purchaser acquired a substantial interest in the property, the said right cannot be deemed to be taken away by any subsequent legislation except by an express provision to that effect. It was further observed that when the sale was confirmed in favour of purchaser the title takes effect from the date of the sale. We do not see how this decision helps the learned counsel for the petitioner.

We quite agree that when a purchaser's bid is accepted he no doubt acquires a certain interest in the sense that if the requirements of the law are satisfied, he will be entitled to get an order of confirmation of sale followed by the issue of a Sale Certificate. But this does not mean that by virtue of the bid having been accepted he acquires title to the property even before an order of confirmation of sale is passed. If the contention of the learned counsel is to be accepted there is no need under law to pass a subsequent order confirming the sale. It results in an anomalous position viz., the purchaser gets an absolute title to the property, the moment the bid is accepted. He may default in paying the sale price with impunity and the decree-holder or the Collector may have to pursue separate remedies to release the sale price from the auction purchaser. We have therefore no doubt that there is no distinction in principle between a revenue sale under the Hyderabad Land Revenue Act and a court sale under the provision of the Civil Procedure Code as regards the stage at which property passes under law to the purchaser. Hence the principle in (1967) 2 Andh WR 17 (FB) equally applies to the present case that is to say, after the sale is held and the purchaser is ascertained, he should then apply to the Tahsildar for sanction under S. 47 of the Tenancy Act and on the strength of such prior sanction alone, the sale will be confirmed under section 139 of the Land Revenue Act which represents the final stage at which transfer by operation of law take place. We accordingly hold that prior sanction under S. 47 of the A. P. (Telangana Area) Tenancy and Agricultural Lands Act is not necessary before the Collector sanctions the auction sale under section 134 of the Hyderabad Land Revenue Act.

12. The result of our decision is that prior sanction under section 47 is required only before the sale is confirmed under section 138 of the Land Revenue Act. By virtue of the order of stay passed by this court, the revenue sale in favour of the purchaser has not yet been confirmed. But it has to be noted that in view of the recent legislation viz., Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (Third Amendment) (Act 12 of 1969) which came into force on 18-3-1969, section 47 and the other connected provisions of the main Act have been omitted with the result that no sanction is at all necessary before confirming the sale in favour of the 5th respondent.

13. The learned counsel for the petitioner has not urged before us any other ground as vitiating the revenue sale. It was no doubt mentioned in the affidavit in support of the writ petition that there should be a re-auction in view of the fact that the purchaser deposited the balance of purchase money mearly five years after the sale. This ground was not pressed for the obvious reason that the Collector could not call upon the purchaser to pay the balance inview of the stay order issued in the previous writ petition and that when the order of stay ceased to operate on the dismissal of the previous writ petition, the purchaser immediately deposited the amount on receipt of notice from the Collector.

14. For the above reasons, we dismiss this writ petition with costs. Advocate's fee Rs. 100/- one set to be shared equally by the Government and the purchaser.

15. Question answered and Petition dismissed.


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