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Narayansingh Jugrajsingh Vs. Board of Revenue - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 296 of 1959
Judge
Reported inAIR1962MP280; 1962MPLJ281
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Orders 34 and 47, Rules 1 and 15; Central Provinces and Berar Board of Revenue Act, 1949 - Sections 9; Central Provinces Land Revenue Act, 1917 - Sections 122(1), 127, 128, 145, 146 and 148; ;Transfer of Property Act - Sections 100
AppellantNarayansingh Jugrajsingh
RespondentBoard of Revenue
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateR.P. Verma, Adv. for Opposite party Nos. 7(1) to 7(4)
DispositionPetition dismissed
Cases ReferredKeshardeo Chamaria v. Radhn Kissen Cnamaria
Excerpt:
- - clearly, this is an error apparent on the face of the record. service of notice of the appeal on chunnilal by affixture was accepted as good without waiting for the report of service by the normal method and without coming to the conclusion that such service could not be effected. a case like the one here is governed by the principle applicable to cases not begun, or pending, at the time of commencement of the constitution which till then had not been prosecuted to final judgment. the general rule is that statutes are presumably prospective rather than retrospective in operation unless the contrary clearly appears or is very plainly and unequivocally expressed of necessarily implied. this is based on the principle that a retrospective operation is not to be given to a statute so as.....orderk.l. pandey, j.1. this is an application for review of an order dated 20-8-1959 by which miscellaneous petition no. 254 of 1957, was dismissed. that petition was directed against an order of the board of revenue, madhya pradesh, dated 8th february, 1957, whereby its own earlier order dated 15th february, 1951, confirming the sale of malik-makbuza plot no. 32 of village gorakh-pur, together with a house standing thereon, was reviewed, the confirmation of sale was set aside and a fresh confirmation of that sale was interdicted.2. it is urged by the learned counsel for the contesting respondents that the order dated 20th august, 1959, which was passed on a petition under article 228 of the constitution, cannot, in the absence of any power conferred by the statute, be reviewed at all......
Judgment:
ORDER

K.L. Pandey, J.

1. This is an application for review of an order dated 20-8-1959 by which Miscellaneous Petition No. 254 of 1957, was dismissed. That petition was directed against an order of the Board of Revenue, Madhya Pradesh, dated 8th February, 1957, whereby its own earlier order dated 15th February, 1951, confirming the sale of malik-makbuza plot No. 32 of village Gorakh-pur, together with a house standing thereon, was reviewed, the confirmation of sale was set aside and a fresh confirmation of that sale was interdicted.

2. It is urged by the learned counsel for the contesting respondents that the order dated 20th August, 1959, which was passed on a petition under Article 228 of the Constitution, cannot, in the absence of any power conferred by the statute, be reviewed at all. Reliance is placed upon In Re, prahlad Krishna, ILR (1951) Bom 181: (AIR 1951 Bom 25) (FB) and Hajee Suleman v. Custodian, Evacuee Property, (S) AIR 1955 Madh-B 108. These cases lend soma support to the respondents, but a contrary view was taken in Chenchanna v. Praja Seva Transports, Ltd., ILR (1952) Mad 1000 : (AIR 1953 Mad 39) and Dan Singh v. Additional Collector, Bijnor, AIR I960 All 152. The last-mentioned case is very similar to this case The controversy also appears to have been quieted by the view taken by the Supreme Court in Sheodeo Singh v. State of Punjab, Civil Appeal No. 265 of 1958, D/-8-2-1961 (SC) Mudholkar, J., who spoke for the Court, observed;

''Learned counsel contends that Article 226 of the Constitution does not cooler any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of Justice or to correct grave and palpable errors committed by it.'

3. Since this power of review of an order passed under Article 226 is the power inhering in the Court, it is not, for that reason, fettered by the words of Order 47 Rule 1 Civil Procedure Code or any other analogous law. Even so, this case is, so far as review is concerned, strictly within the principles enacted in Order 47 Rule 1 of the Code. The order dated 20th August, 1959, proceeded solely on the view that the sale was void in that it was made Without the personal sanction of the Deputy Commissioner required by Rule XIV of the Rules framed under section 128 of the Land Revenue Act, 1917 (hereinafter called the Act). The counsel, who had not noticed that the Rule was subsequently amended, also accepted that the Rule as originally framed applied to the facts of the case. Actually, the Rule, which has been amended on 2 November, 1945, dispensed with the sanction of the Deputy Commissioner and empowered the Sub-Divisional Officer to sanction the Sale.

Since, in this case, the Sub-Divisional Officer had, as required, previously sanctioned the sale, it was not assailab1e for want of a valid sanction. It is obvious that overlooking the amendment, the case was decided on the rule as originally framed. There was thus an erroneous assumption that the unamended rule continued to be in force. Clearly, this is an error apparent on the face of the record. If any authority is required, I may refer to the subsequent judgment of Lord Du Parcq in North West Frontier Province v. Suraj Narain, 75 Ind App 343 : (AIR 1949 PC 112). in view of the error, I review and set aside the order dated 20th August 1959, I would now consider the case afresh in the light of the submissions made once again by the counsel.

4. In order to appreciate the points in controversy, it is necessary to refer to the facts of this case. One Chunnilal owned plot No. 32 on which he had erected a residential house of substantial value. By a registered sale deed dated 3 March 1948. he sold the plot, wrongly mentioning it as plot No. 28, together with the house, to Ganeshilal for a sum of Rs. 13,900/-It transpired that Chunnilal had not paid Rs. 13/- due as land revenue in respect of the plot for the year 1947-48. To recover that amount, a warrant of attachment of moveable property was issued against Chunnilal. In trying to execute that warrant, the revenue process-server discovered that Chunnilal was untraceable and he was also informed that the house had been sold to one Ramnath Pathak. Without issuing notice to the vendee or taking any other step for recovering from him the arrears, the Tahsil-dar decided to sell the plot together with the house.

As required by Rule XIV, a report dated 21 April 1948 with reference to Clauses (a) and (b) of Section 138 (2) of the Act was obtained and, thereupon, it was proposed by the Tahsildar, and sanctioned on 18 October 1948 by the Sub-Divisional Officer, that the property be sold under Section 128 (f) of the Act. After proclaiming the sale in advance, it was held from 18 January 1949 to 24 January 1949. The petitioner was the only bidder and he too appeared on the last-mentioned date, when his bid of Rs. 500/- was accepted.

5. When the proceedings were submitted to the Sub-Divisional Officer, he passed on 8 March 1949 the following order :

'Returned to Tahsildar. The bid is far too low. The plot which contains a house is reported to have been transferred by sale. No attempt has been made to recover the small amount of arrears from the alleged purchaser. A report may please be submitted for resale in case other attempts for recovery do not be ar fruit.'

Subsequently, Ganeshilal was easily contracted and he remitted by money order the amount due, which was received on 26 April 1949. In the meanwhile, being aggrieved by the order dated 8 March 1949, the petitioner filed two successive appeals. On 4 January 1950. the Deputy Commissioner dismissed the first appeal. But the Board Of Revenue, by its order dated 15 February 1951, allowed the second appeal and confirmed the sale on the view that, in the absence of ane application for setting aside the sale under Section 145 or Section 146 of the Act, the sale had to be confirmed as required by section 148 of the Act.

6. Since Ganeshilal was not made a party to the second appeal, his successors (respondenta 3 to 8) applied for review of the order dated 15 February 1951. That application remained pending for nearly six years. Ultimately, on 8 February 1957, the Board of Revenue decided to review the order for two reasons. Service of notice of the appeal on Chunnilal by affixture was accepted as good without waiting for the report of service by the normal method and without coming to the conclusion that such service could not be effected. Ganeshilal was not impleaded as a party to the second appeal though he had been made a party in the lower Court. The Board ultimately set aside the confirmation of sale on the following grounds:

(i) The mention of plot No. 28, instead of plot 'No. 32, in the sale deed dated 3 March 1948 was a case of ambiguity and it did not; prevent the Court from fixing the identity of the property sold on the basis of relevant considerations.

(ii) By virtue of the sale dated 3 March 1948, the property proceeded against ceased to be owned by the defaulter Chunnilal and could not, thereafter, be treated as belonging to him and saleable as such for recovery of the dues in question.

(iii) When the owner of the property, Ganeshilal, was not noticed, his name was not shown in the proclamation as owner of the property and all knowledge of the sale proceedings was withheld from him by negligence or wilful Suppression or otherwise, it would be unjust to insist upon an application under Section 145, or Section 146, of the Act before setting aside the sale.

(iv) There is inherent power to refuse to confirm a sale when it is i:ound that the property sold does not belong to the defaulter.

7. Shri R. P. Verma, counsel for the respondents, was permitted to urge a preliminary point. According to him, the Board's order dated 8 February 1957 merely affirmed the preconstitution order of the Sub-Divisional Officer refusing in effect to confirm the sale and the error, if any, in that order could not be corrected by exercising the Subsequently acquired and prospective operating jurisdiction under Article 226. The counsel strongly relied upon the following passage from the majority judgment in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595; (AIR 1958 SC 86):

'In that view of the matter the original order of dismissal passed on April 20, 1948, was not suspended by the presentation of appeal by the respon-dent not was its operation interrupted when the Deputy Inspector-General of Police simply dismissed the appeal from that order or the Inspector-General simply dismissed the application for revision. The original order of dismissal, if there were no inherent infirmities in it, was operative on Its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on 'the High Court can have no retrospective operation on such rights and liabilities. Even if the order of dismissal of the respondent was a nullity On the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Article 226 to correct errors, irregularities or illegalities committed by the inferior departmental tribunal before the commencement of the Constitution, for then there will be no limit to its going backward and that will certainly amount to giving the provisions of Article 226 a retrospective operation. (Page 612 of SCR) : (at p. 95 of AIR).'

The answer to the contention is contained in the above passage itself. The efficacy of the original order was interrupted by the reversing order of the Board dated 15 February 1951' which, was set aside by the impugned order dated 8 February 1957. Since both theee reversing orders were passed after the commencement of the Constitution, there can be no question of giving to Article 226 any retrospective operation. A case like the one here is governed by the principle applicable to cases not begun, or pending, at the time of commencement of the Constitution which till then had not been prosecuted to final judgment. In this view, the objection to the exercise of the jurisdiction under Article 226 must be overruled.

8. In the instant case, under Section 6 of the Central Provinces and Berar Board of Revenue Act, 1949 (XII of 1949) read with item 7 of the Schedule to that Act, the Board heard She second appeal which, tinder Section 33(3) of the Act, lay to the State Government. Although the power of review under Section 40 of the Act was not given to the Board, Section 9 of Act XII of 1949 conferred upon it the same power. The relevant provision of that section read;

''The Board may, either on its own motion or on the application of any party interested, review any order passed by itself and pass such order in reference thereto as it thinks fit' During the pendency of the application for review, the Act XII of 1949 was repeated by the Madhya pradesh Land Revenue Code, 1954 (11 of 1955), Section 47 of which provided as follows:

'(1) The Board and every Revenue Officer may, either on its/his motion or on the application of any party interested, review any order passed by itself/himself or by any of its/his predecessors in office and pass such Order in reference thereto as it/he thinks fit:

2. No order shall be reviewed except on the following grounds, namely;-- (i) discovery of new and important matter or evidence; (ii) some mistake or error apparent on the face of the record; or (iii) any other sufficient reason.

9. The Code of 1954 did no.t expressly enact that this provision: would apply to proceedings pending on the date of its commencement. The general rule is that statutes are presumably prospective rather than retrospective in operation unless the contrary clearly appears or is very plainly and unequivocally expressed of necessarily implied. This is based on the principle that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless an intention so to do has been expressed clearly or by necessary implication. This rule regarding vested rights is not confined to substantive rights but extends equally to remedial rights, their nature and content. So, a right of appeal is not merely a matter of procedure. To disturb an existing right of appeal is not a mere alteration in procedure. An intension to interfere with, or to impair or imperil, such & vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication : Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, 1953 SCR 187: (AIR 1953 SC 221)'.

It is on this principle that an amendment of the Letters Patent making a certificate of fitness necessary for further appeal against a derision in second appeal of a Judge sitting alone was held not to be retrospective in operation : Sadar All v. Doliluddin Ostagar, ILR 56 Cal 512 : (AIR 1928 Cal 640) (FJB). The Supreme Court also .took a similar view about the effect of Pepsu Ordinance 10 of Samvat 2005 : Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce Ltd., AIR 1952 SC 409. In Commissioner of Income-tax C. P. v. Dharamchand, AIR 1924 Nag 24, the right to demand a reference, which had already accrued, was held not to have been impliedly taken away by the Indian Income-tax Act XI of 1922. In K. S. Nazar AH Mills Ltd. v. Commissioner of Sales Tax, AIR 1958 Madh Pra 282, the pre-existing right of revision, the exercise of which would have enabled an assessee to demand a reference, was held to be not affected by an amendment of the Madhya Bharat Sales Tax Act, 1950, which freshly imposed payment of the entire assessed tax as a pre-condition for filing a revision. Speaking about review, the Judicial Committee stated in Chhajju Ram v. Ncki 49 Ind App 144 : (AIR 1922 PC 112) that

''the right is the creation of Indian statute-law'.

It was furtner pointed out in Bisheshwar Pratap Sahi v. Parath Nath, 61 Ind App 378 : (AIR 1934 PC 213) that the right could be exercised only within the limits defined by the statute. In view of the authorities, it must be held that review is not a mere matter of procedure. It is a remedial right which, when it has already accrued under a statute, cannot be impaired or limited by a subsequent enactment save by express words or necessary intendment. That being so, the repeal of Act XII of 1949 during the pendency of the review application did not affect the power of review exercisable in relation thereto under Section 9 of that Act.

10. Relying upon Model Mills Manager v. Dharam Das Nagpur Ltd., AIR 1958 SC 311 the learned counsel for the petitioner contends that the wide, power of review under Section 9 of Act XII of 1949 should, upon similar considerations, be regarded as limited to the grounds mentioned in Order 47 Rule 1 Civil Procedure Code. In the Supreme Court case, their Lordships were considering the scope of revision under Sub-section (5) of Section 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, which reads as follows:

''An application for revision made within the prescribed time, but no appeal, shall lie to the State Industrial Court against the decision of the Labour Commissioner; but no order passed by him shall be called in question in any civil or criminal court or made a subject of an industrial dispute:

Provided that the State Government may by notification direct that an order passed by the Labour Commissioner in any class of industrial dispute referred to in Sub-section (1) shall be final.'

Their Lordships observed that since an appeal was expressly prohibited, the power of revision could be exercise on a point of law and not merely because a different view could be taken on a question of fact. Since an appeal was prohibited and an undefined power of revision was conferred, their Lordships were required to consider on what grounds there could be, interference in revision--under Section 16 (5) ibid. The power of review under Section 9 of Act XII of 1949 was conferred in words almost identical with those employed in Section 40 of the Act. The highest tribunal administering the revenue laws took the view that the power of review under Section 40 is wider than that under the Code of Civil Procedure and is not restricted to the circumstances enumerated in Order 47, Rule 1 of the Code : Thakur Bijai Bahadur Singh v. Rani Kirti Bai 6 Rev Rul 1 (Nag) and Kalkaprasad v. Thakur Budhsing, 14 Rev Rul 25 (Nag)-

When, therefore, the Legislature adopted the language of Section 40 in. clothing the Board with the power of review, it must be regarded as embodying the sense in which S. 40 Was construed. In Pundalik v. Surendra, ILR (1954) Nag 735 the contention that the principles of Order 47, Rule 1 should be imported into section 40 of the Act was repelled by a Division Bench of this Court. This is what their Lordships observed :

'The power of Revenue Officers to review is to be found in Section 39 of the Berar Land Revenue Code and in section 40 of the Central Provinces Land Revenue Act. NO limitations are placed on that power as under the civil Procedure Code. We have not come across any reported case under Section 39 of the Berar Land Revenue Code, but in 1931 Nag LJ (Rev) 1, which was a case under Section 40 of the Central provinces Land Revenue Act, it was held that the power of a Revenue Officer to review is wider than that of a civil court under Order XLVII, Rule 1, of the Code of Civil Procedure. Revenue cases are mot tried with the formality of a civil proceeding. The power of Revenue Officers of re-hearing by review must therefore be, in the nature of things, wider than the power of a civil Court. Since the two procedural laws are not in pari materia, it would be incorrect to import the provisions of Order XLVII, Rule l, into Section 9 of the Act. We are of the view that the power of review conferred by Section 9 is very wide; and in suitable cases it must be exercised for a re-hearing of the whole case. The Board of Revenue which has to exercise this power may by its decisions place limitations on the exercise of that power, but if the Board in a particular case does not conform to that limitation, it cannot be said that it has acted without jurisdiction or in excess of jurisdiction'.

It must, therefore, be held that the exercise of the power of review under Section 9 of, Act XII of 1949 was not restricted to the circumstances specified in Order 47, Rule 1, that it was a wide power and that, in suitable cases, it could be exercised to re-hear the whole case,

11. As shown, the Board decided to review the order dated 15 February 1951 on two grounds. No doubt, the learned Member of the Board, who passed that order, was in error in treating service of notice of appeal on Chunnilal by affixation to be good when the report of`service by the normal method had not been received and it was not shown, as required by Section 23 of the Act, that such service had proved ineffective. But that ground could not be relied upon for reviewing the order because Chunnilal himself did not make a grievance ot it. The second ground that Ganeshilal was not impleaded as a party to the second appeal, though he was a party in the lower Court, is however important as having a vital bearing on the whole case in that it is linked up with the main reason for setting aside the confirmation of sale.

12. The Learned Counsel for the petitioner urged that, when the sale deed in favour of Ganeshilal showed that Khasra No. 28 was transferred to him, the Board of Revenue was not justified in determining a question of title and holding, in effect, that plot No. 32, and plot No. 28. was sold to him in the first place, the Board had jurisdiction to determine all questions incidental to the matters committed to its exclusive jurisdiction and the scope of these incidental questions could not be so restricted as to affect or impair the limited jurisdiction conferred upon it: Shri Ambica Mills Co., Ltd v. Shri S.B.Bhatt, AIR 1961 SC 970. Secondly, there was only a latent ambiguity in the description of the property transferred to Ganeshilal because what was sold to him purported to be not only plot No. 28 but also the house bearing municipal No. 41/30 standing thereon 'as per map given' at the foot of the sale deed. A Suit under Section 31. of the Specific Relief Act is not necessary for correcting such misdescriptions, which are within the Court's ordinary function of construing documents ut res magis valeat quam pereat: Rajaram Narayan v. Mam'k Sam-pat, AIR 1952 Nag 90 and Balaprasad v. As mabi ILR (1954) Nag 634 : (AIR 1954 Nag 328).

This being so, the Board was not incompetent to take the view that the sale deed did not correctly express the intention of the parties, in the sense that what was meant to' be conveyed was plot No. 32 and not plot no. 28.

13. The petitioner mainly relied upon Section 148 of the Act which provided that the sals had to be confirmed when no application was made under Section 145 or Section 146 of the Act. That this is so clear from the view taken in regard to the corresponding provisions of the Code of Civil Procedure : Nanhelal v. Umrao Singh, 58 Ind App 50 : (AIR 1931 PC 33) and Birdichand v. Ganpat Sao, ILR (1940) Nag 302: (AIR .1938 Nag 525) But, as J pointed out in my earlier order dated 20 August 1959, this principle has no application where the sale is otherwise void: Khiarajrnal v. Daim, ILR 32 Cat 296 (PC), Raghunth Das v. Sundar Das Khetri, ILR 42 CaJ 72 : (AIR 1914 PC 129) and Kanchamalal Pathar v. Shahnji Rajah Sahib, ILR 59 Mad 461 : (AIR 1936 Mad 205) (FB).

14. Under Section 122 (1) of the Act, the land revenue in arrear was a first charge on plot No. 32. which, for recovery of the arrear, could be followed in the hands of the transferee Ganeshilal. The learned counsel for the petitioner, however argued that Ganeshilal was not entitled to any notice of the proceedings taken for sale of the plat purchased by him and that he was also not a necessary party to the second appeal. In my opinion, this contention is not correct. Merely because these was a statutory paramount charge on .the land for the arrear ot land revenue, that, by itself and without more, could not be regarded as empowering the Revenue Officers to adopt a summary procedure for recovering it by selling the land. Charges created by operation, of law also fall under Section 100of the Transfer of Property ACT and can be en-forced only by suits under that section readwith Order 34, Rule 15 of the Code of CivilProcedure. It was for this reason that specialprovisions prescribing a summary procedure forsale of land subject to the first charge for arrears of land revenue were made in Sections 127and 128 of the Act. Section 127 ibid read asfollows :

''A Tahsildar or Naib-Tahsildar may, if he thinks fit, cause a notice of demand to be served on, any defaulter before the issue of any process under Section 128 for the recovery of an arrear,'

The first three Rules framed under Sections 127 and 128, read with Section 227 (2) (k) of the Act, read as under:

'I. A notice of demand shall issue in duplicate in form I appended and shall be signed (and sealed) by the officer issuing it or by such person as he empowers in this behalf.

II. When there are more defaulters than one in a Mahal, a single notice of demand may be issued against them all collectively, and when the same person is a defaulter in respect of more than one mahal situated within the same tahsil, a single notice of demand may issue for the amount due On these mahals.

III. The server or chaprasi shall enter the date and particualrs of the mode of service as provided in Section 23 of the Act on the copy of the notice which is regained by him. This copy shall then be returned to the officer who issued it, and shall be filed with the record.'

Although it appears that Section 127 did not oblige the Tahsildar to cause a notice of the demand to be served on any defaulter, Rule I reproduced above did make it compulsory. My attention was, however, drawn to the following observations made in Surajdeen v. Ishwari pra-sad, ILR (1938) Nag 550 at p. 554 : (AIR 1938 Nag 554 at p. 556) :

'It must be observed at the outset that it is not obligatory on the, Tahsildar to cause notice of the demand to be served on any defaulter; it is a step which under Section 127 depends on the discretion of that officer.'

In the first place, these observations were not necessary for the conclusion reached in that case that a simple mortgage, not being an assignee, was not a defaulter, and was, for that reason, not entitled to a notice under Section 127. Secondly, the attention of their Lordships was not drawn to Rule I reproduced above. As I will show in a moment, that Rule is based upon a well-established general principles and must, for that reason, be regarded as mandatory In re, Shephard; Atkins Shephard, (1889) 43 Ch D 131, Cotton L. J. observed ;

'It is quite new to me to hear it alleged that there is anything in the rules to enable the Court to make an order against a person who is not a party to the action. It is against all principle to proceed against him until he has been brought before the Court, or all proper steps to bring him before the Court have been taken ineffectually.' (page 137)

This is based upon the principle that a man shall not suffer in property without an opportunity of avoiding it, it possible In Kanhaiya-lal v. Reginald, ILR (1951) Nag'422 at p. 430: (AIR 1951 Nag 52 at p. 55), Deo J. stated:

'Under the Civil procedure Code notice is required to be given to the. judgment-debtor before his property is ordered to be sold. He has therefore an opportunity to prevent the sale by making the payment either before or after the sale or take steps that the sale is held for a proper price. There is no similar provision in, the Berar Land Revenue Code. It is against the fundamental principles of law that a proceeding held behind the back of a defaulter should bind him unless he is given notice at One stage or the other before the sale is ordered.'

In dismissing the appeal against that decision, the Supreme Court in Kanhaiyalal v. Dr. D. R. Banaji, AIR 1958 SC 725 at p. 730, observed:

''Thus, if the leave of the, Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction-sale to be held for non-payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under Sections 155 and 156 of the Code.'

15. The contention that Ganeshilal was not entitled to a notice in Form I under Rule 1 proceeds on the assumption that he was not a defaulter. But Section 125 of the Act, which is reproduced below, made the position quite clear ;

'If any sum payable under a settlement or sub-settlement or otherwise under an assessment made under this Act is not paid on or before the date on which it is payable under Section 124, such sum shall be deemed to be an arrear, and all the persons with whom such settlement or sub-settlement or assessment was made, their representatives and assigns shall thereupon become jointly and severally liable for such arrear and shall be deemed to be defaulters within the meaning of this Act.'

Explanation:--The term 'assigns' in thissection includes a mortgagee in possession anda thekadar.'

It was pointed out in Surajdeen's case, ILR (1938) Nag 550 : (AIR 1938 Nag 554) (supra); that the word 'assigns' applied to purchasers, donees, lessees or mortgagees with possession. That being so, Ganeshilal was a defaulter with in the meaning of Section 127 of the Act and the land revenue in arrear could be recovered not only by sale of the land purchased by him but also personally from him. Since it was decided to proceed against plot no. 32 and Ganeshilal, who was a defaulter, alone had exclusive interes' in that plot, he was entitled to a notice under Rule I. There was no ground for ignor, ing Ganeshilal or for treating him as if he were holding the' plot benami for Chunnilal. In view of this position, the failure to serve the required notice on Ganeghilal and the omission to take any other step to inform him of the proceedings taken against his property altogether vitiated those proceedings.

16. In the circumstances of this case, the Board, which had power to review its earlier order and to pass such order in the matter as it thought fit, did not express itself adequately when it set aside the sale under its inherent powers, observing inter alia that the plot could not be sold on the assumption that it continued to belong to Chunnilal and that an application from Ganeshilal for setting aside that sale under Section 145 or Section 146 could not be insisted upon when all knowledge of the proceedings was withheld from him. As shown, the proceedings were vitiated and the sale made thereunder, which was void, did not require to be set aside.

17. Even if a different view could be taken about the validity of the proceedings, 1 am of opinion that in this case there should be no interference. In a case iike this, a writ of certiorari is discretionary and not of course. It may be refused unless the justice of the case requires it A. M. Allison v. B. L. Sen, 1957 SCR 359: ((S) AIR 1957 S.C 227). I am not satisfied that, in this case, there was a failure, of justice or that interference is, for that reason, necessary The petitioner however contends that his fundamental right to property is involved. It is hardly necessary to point out that he has no fundamental right to the confirmation of the sale made in his favour.

18. Before closing, I would consider two other submissions. In this case, the Board fixed the case for arguments on 4 January 1957, adjourned it to 5 January 1957 when it rejected the petitioner's application for adjournment and then proceeded ex parte against him. On the strength of Keshardeo Chamaria v. Radhn Kissen Cnamaria, 1953 SCR 136 : (AIR 1953 SC 23)', it was argued on. behalf of the petitioner that the Board was bound to inform him about the rejection of his application for adjournment and also of the adjourned date of hearing. In the Supreme Court case the executing Court, acting under Section 151 Civil Procedure Code, corrected its own mistake in dismissing the execution application on the refection of the application for adjournment without giving to the decree-holder, who was present, any opportunity to say what he wanted to be done in the matter in those circumstances.

The position here was different. The petitioner was served on 10 December 1956 and he knew at least on 24 December 1956 that his counsel, Shri A. P. Sen, would not be available to argue the case on 4 January 1957. He had thus enough time to engage another counsel. But he sent an application by post for adjournment stating therein that, on account of ill health, he had not been able to engage another counsel. The Board had jurisdiction not to accept the bare statement of the petitioner about his ill health and to proceed ex parte against him. If he or his counsel had appeared on 4 January 1957, he would have known that this long pending case was adjourned to the following day. In these circumstances, there is, on this account, no apparent error of law affecting the order passed on 8 February 1957.

19. On behalf of the respondents, it was contended that, before the sale was ordered, the mandatory requirements of Rule ,XIV were not observed. As shown in paragraph 4 above, this is factually not correct.

20. The result is that, in the view I havetaken, the petition fails and is dismissed. Having regard to the circumstances of this case, theparties are directed to bear their own costs.The security amount shall be refunded to thepetitioner.


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