Dwarka Prasad Gupta, J.
1. The appellant Ganeshram, was the highest bidder of a public auction conducted by the Land Revenue Inspector in connection with the demand raised against Kapoor Chand, who was the owner of the shop in dispute, as the appellant had given the highest bid for the sum of Rs. 20,101/-. Consequently the sale was knocked down in favour of Ganesh Ram appellant by the Land Revenue Inspector on December 26, 1976. One of the objections taken on behalf of the owner of the shop Kapoor Chand to the said auction sale was that the Land Revenue Inspector had no jurisdiction to conduct the sale because under the provisions of Section 239 of the Rajasthan Land Revenue Act, 1956 (here in after referred to as 'the Act'), the sale could have been made either by the Collector in person or by the Assistant Collector specially appointed by him in that behalf. The Board of Revenue held that the sale was a nullity. The learned Single Judge agreed with the view taken by the Board of Revenue and dismissed the writ petition filed by the appellant.
2. Section 239 of the Act, as it stood at the relevant time, was as under:
239. Sale when and by whom to be made-
(1) Every sale under this Chapter shall be made either by the Collector in person or by an Assistant Collector specially appointed by him in this behalf
(2) No such sale shall take place on a Sunday or other authorised holiday or until after the expiration of at least thirty days from the date on which the proclamation thereof was issued
(3) The Collector, may from time to time postpone the sale.
Subsequently, by an amendment made in Sub-section (1) of Section 239, by the Amending Act No. VI of 1981, published in the Rajasthan Gazette dated April 22, 1981, Tehsildar, specially appointed by the Collector in this behalf, was also authorised to make the sale under Chapter X of the Act.
3. The aforesaid provision makes it clear that a sale under Chapter X could be made either by the Collector in person or by an Assistant Collector, specially appointed by him in that behalf. It is undisputed that in the present case, the sale was made by the Land Revenue Inspector. Mr. Lekh Raj Mehta, learned Counsel for the appellant submitted on the analogy of the provisions of Order XXI, Rule 65, CPC, that the order of sale should be passed by the competent authority, but if there is any irregularity in the conduct of the sale, the same could not affect the validity of the sale.
Order XXI, Rule 65, CPC, runs as under:
65. Sale by whom conducted and how made-Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appointed in this behalf, and shall be made by public auction in manner prescribed.
The difference in the language employed by the Legislature in enacting Section 239 of the Act and Order XXI, Rule 65 CPC, is apparent. Although Section 239 of the Act lays emphasis on the sale being made by the Collector 'in person' or by an Assistant Collector 'specially appointed by him in this behalf;' under Order XXI, Rule 65 CPC, the power of making the sale could be delegated by the Court to an officer of the Court or to such other person as may be appointed in this behalf. Thus, in the case of a sale made in execution of a decree of a Civil Court, the same can be conducted by an officer of the Court or even by a person who may not be an officer of the Court yet may be appointed by the Court in that behalf, for the purpose of conducting the court sale. To our mind, the question involved in the present case is not one of mere irregularity in publishing or conducting the sale, but the defect is one of jurisdiction as to who whether the person who conducted the sale was at all competent to make the sale.
4. Mukherjee, J. of the Calcutta High Court laid down the distinction between a sale being a nullity on the ground of lack of jurisdiction and a sale suffering from material irregularity or mistake in publishing or conducting the same, in the case of Ashutosh Sidkar v. Behari Lal Kirtania ILR 35 Calcutta 61 at page 72 as follows:.no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated.
The aforesaid observations made by Mukherjee, J. in Ashutosh Sidkar's case ILR 35 Calcutta 61 at page 72 were also approved by their Lordships of the Supreme Court in Dhirendra Nath Gorai Subal Chandra Nath Saha v. Sudhir Chandra Ghosh AIR 1964 SC 1304.
5. We may also refer to a workable test laid down in this connection by Justice Coolridge in a case of Holmes v. Russell (1841) 9 Dowl 487:
It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection, if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.
It is clear from a perusal of Section 239 that the Land Revenue Inspector was not competent to make a sale under that section and the question of incompetence of the person making the sale strikes at the very root of the act done by him. The parties could not have waived the absence of a sale by a competent authority, namely, the Collector or the Assistant Collector, specially authorised in that behalf. The learned Single Judge has observed that the analogy of the provisions of Order XXI, Rule 65 CPC, cannot be applied to sales conducted under Section 239 of the Act. For the reasons mentioned above, we are in agreement with the view taken by the learned Single Judge.
6. Learned counsel for the appellant referred to a decision of this Court in Maliram Nemichand Jain, Jaipur v. Rajasthan Financial Corporation, Jaipur 1974 RLW 94 in support of his contention that the sale even if not conducted by a particular person should not be set aside unless prejudice is shown to have been caused to the party concerned. In that case, the question arose about an irregularity in the conduct of a court sale made under Order XXI, Rule 65 CPC. The warrant of sale in that case was addressed to the Nazir of the District Court, Jaipur City and the irregularity pointed out was that the name of the person who was occupying the post at the relevant time, namely, Bhanwar Lal Jain was not specially mentioned in the warrant of sale. The learned Judges held that in the first instance, there was no irregularity in as much as Bhanwar Lal Jain was a competent person to conduct the sale, as he was the Nazir of the Court of the District Judge, Jaipur City at the relevant time. It was in the context of these facts that the learned Judges further observed that no substantial injury was caused in the matter, because if for the sake of argument it may be taken that an irregularity was committed in the conduct of auction proceedings, yet the some could not vitiate the sale as it was of no consequence. As we have already pointed out above, under Order XXI, Rule 65 CPC, the sale could be conducted by any Officer of the Court or by any other person who may not be an officer of the court, but may be appointed by the court for that purpose. The analogy of the provisions of Order XXI, Rule 65 CPC, could not be applied to the provisions of Section 239 of the Act. It appears that in the case of sales made under Chapter X of the Land Revenue Act relating to recovery of money as arrears of land revenue, the Legislature was keen to provide the only officers holding sufficiently responsible posts should be authorised to make such sales and that is why the lowest category of officers authorised to make the sale under Chapter X of the Act, after the amendment of Section 239 by the Amending Act of 1981, were the Tehsildars. Thus it is clear that lower category of officials of the State Government were not empowered to make or conduct the sales made for realization of land revenue or other monies which could be realised under Section 236 as arrears of land revenue.
7. In view of the clear and unambiguous provisions of Section 239 of the Land Revenue Act, we are unable to accept the contention of the learned Counsel for the appellant. The sale in question was rightly held to be a nullity by the Board of Revenue, as it was conducted by a person who was not competent to do so and such a sale had to be set aside.
8. The learned Single Judge has already observed that the appellant would be entitled to recover the amount of Rs. 20,101/-, which he had deposited in pursuance of his bid, from the Sub-divisional Officer, Bali or other competent authority. No further direction in the matter is necessary.
9. Consequently the appeal fails and is dismissed.