N.M. Kasliwal, J.
1. This case has along chequered history.
2. The Commercial Taxes Officer, Pali, sent a requisition to the Collector, Pali & the Sub-Divisional Officer Pali under the provisions of the Rajasthan Land Revenue Act, 1956, (hereinafter referred to as 'the Act') for the recovery of Rs 7,447.80 from Shri Kapoor Chand, respondent No. 4 on account of Sales Tax Recovery against him. The Sub-Divisional Officer passed an order to recover the aforesaid amount as arrears of land revenue by attaching a shop belonging to Kapoor Chand situate in the market of Sumerpur. A sale proclamation was issued and the above shop was ordered to be sold on December 24, 25, and 26, 1966 and the Land Revenue Inspector Shri Pokar Das conducted the sale on the aforesaid dates and various persons including the petitioner Ganesh Ram gave their bids. As bid of Rs. 20,101/-given by the petitioner being the highest, the sale was knocked down in his favour at 5 p m. on December 26, 1966. The case of the petitioner is that he immediately offered Rs 5,025/25 in cash to the Land Revenue Inspector, but he did not accept the same and stated that as he did not have proper and safe place with him at Sumerpur and that there was no means to proceed to Tehsil head-quarters at Bali to deposit the huge amount, he would accept crossed cheque in place of cash. The petitioner, therefore, gave a crossed cheque immediately of one-fourth amount of the highest bid and the same was accepted by the Inspector. The Inspector then submitted the record of the auction proceedings to the Tehsildar Bali on December 2/. 1966 along with the cheque. The Tehsildar passed an order on December 29, 1966 that one-fourth deposit should be taken in cash and the cheque should be returned. The petitioner in compliance of the above order immediately deposited Rs. 5,025.25 in cash in the Government treasury and the cheque was returned to him. The Tehsildar then sent the papers to the Sub-Divisional Officer, Bali for sanction.
3. In the mean time one M/s Paras Finance Company, Jodhpurs, submitted an application on December 26, 1966, before the Sub-Divisional Officer, Bali, stating inter alia that the shop in question along with some other properties belonging to Kapoor Chand had been mortgaged for an amount of Rs 42,000/- and in case the shop was to be put to auction it must be done by mentioning in the auction notice that it was subject to encumbrances. The Sub-Divisional Officer passed an order on the application on that very day. that auction proceedings could be stayed only on payment of the demand under protest. M/s Paras Finance Company did not deposit the amount of the demand and the auction proceedings continued and sale was knocked down as mentioned above. Shri Kapoor Chand, however, did not file any objection to the auction proceedings. The Sub Divisional Officer Bali then without waiting for 30 days confirmed the auction sale on January 5, 1967.
4. Thereafter, Paras Finance Company filed an application before the Sub-Divisional Officer on January 12, 1967, along with a certified copy of Revenue Appellate Authority dated January 8, 1967 purported to have been passed in appeal filed by M/s Paras Finance Company. It was submitted on behalf of M/s Paras Finance Company that the sale could be confirmed only, after expiry of one month from the sale.
5. The case of the petitioner further is that the Tehsildar issued notice dated January 6, 1967, to the petitioner calling upon him to make payment of 3/4th amount within 15 days. The petitioner in compliance of the said notice deposited the remaining 3/4th amount on January 9,, 1967. The respondent Kapoor Chand filed a revision petition before the Board of Revenue on September 29, 1967, against the order of Sub-Divisional Officer dated January 5, 1967, confirming the sale and that revision was numbered as 179/67/Pali M/s Paras Finance Company also filed a revision before the Board of Revenue on August 11 1967 against the order of Revenue Appellate Authority dt. August 9, 1967 by which the appeal filed by M/s Paras Finance Company was dismissed against the order of Sub-Divisional Officer dated December 26, 1966 and January 5, 1967. The revision of M/s Paras Finance Company was numbered as 141/67/Pali.
6. A learned Single Member of the Board of Revenue heard both the above mentioned revision petitions simultaneously. In Revision No. 175/67/Pali filed by Kapoor Chand it was observed that according to Section 248 of the Act the sale could be confirmed only on expiration of 30 days. From the auction proceedings it was clear that the last auction bid was held on December 26, 1966 and the sale was confirmed on January 5, 1967. It was also observed that Section 242 of the Act provided for immediate deposit of 25 per cent of the amount of the bid but it appeared that a cheque was offered in lieu of payment while cash deposit in the treasury was made on December 29, 1966. It was further observed that sale proceedings were not in accordance with the procedure prescribed under the Act and as such the sale was set aside and the case was remanded to the Sub-Divisional Officer with the direction that the procedure hid down for recovering the arrears of land revenue under the Rajasthan Land Revenue Act be followed and further action be taken according to law. The learned Member further observed that in view of the fact that in the above revision 1.7* it has been held that the proceedings of auction sale were not in accordance with the provisions of law, the second revision filed by M/s Paras Finance Company stood disposed of and the same directions will apply in this revision also.
7. The petitioner feeling aggrieved filed two special appeals before the Division Bench of the Board of Revenue against the order of the learned Single Member of the Board of Revenue dated July 1, 1968. The Division Bench decided both the special appeals by a common judgment dated December 18, 1969. The Division Bench found that the order of the Sub-Divisional Officer dated January 5, 1967, was passed confirming the sale before compliance of Section 2 of the Act regarding full payment of purchase money had been fulfilled and the same was also passed before the expiry of 30 days as required by Section 248 of the Act. The Division Bench thus held the 'The learned Single Member was fully justified in setting aside the order of the Sub-Divisional Officer dated January 5, 1967 in so far as it purported to confirm the sale.' It was, however, further observed by the Division Bench 'We do not, however, think that there are adequate grounds for us to hold the entire proceedings void. In the circumstances of the case, we would leave it to the Officer having jurisdiction under Section 248, the Rajasthan Land Revenue Act, to reconsider the question of confirmation of the sale after giving to all the parties or affected including the department to which the demand pertains an opportunity of being heard. The special appeal in respect of order regarding revision No. 179/67 Pali against the order of the Sub-Divisional Officer's order is thus partially accepted.'
8. The case of the petitioner is that Shri Kapoor Chand did not challenge the said judgment of the Division Bench of the Board of Revenue dated December 18, 1969, and it became final and binding between the parties It has been further alleged that M/s Paras Finance Company obtained an order dated February 9, 1970 for transfer of the case from the court of Sub-Divisional Officer, Bali to Collector, Pali and thus the matter cams up before the Additional Collector, Pali on May 7, 1970. The case of the petitioner is that the Additional Collector, Pali, was working as Collector, Pali on May 7, 1970, and who even otherwise was authorised to discharge the duties and functions of the Collector. The Additional Collector as such heard the matter and confirmed that sale in favour of the petitioner on May 7, 1970. The possession of the shop was also handed over to the petitioner by the Revenue Authorities on May 8, 1970 in compliance of the order of the Additional Collector dated May 7, 1970.
9. Kapoor Chand respondent No. 4 then filed a review petition against the said order of the Additional Collector before the Collector, Pali, who by his order dated June 22, 1970. The petitioner then challenged the above order of the Collector, Pali by filing a revision No. 147/1970 before the Board of Revenue. In the above revision it was submitted by the petitioner that the Collector Pali had no jurisdiction to set aside the order of the Additional Collector as the word 'Collector' included Additional Collector under the provisions of the Act. The learned Singh Member of the Board of Revenue by order dated March 6, 1973, dismissed the revision filed by the petitioner and upheld the order of the Collector dated June 22, 1970, on the ground that as the case was transferred to the Collector, Pali, the Additional Collector, Pali was not entitled to hear the matter. He, however, left the question namely whether the Collector could hear a review against the order of the Additional Collector unanswered on the ground that the order of the Additional Collector was a nullity. The petitioner then filed a review petition against the said order of the learned Single Member of the Board of Revenue dated March 6, 1973 but the same was also dismissed by order dated December 24,1973. The petitioner then filed a special appeal but the same was also dismissed by order dated November 12, 1974.
10. The petitioner thereafter challenged the judgment of the Board of Revenue dated March 6, 1973, December 24, 1973 and November 12, 1974 and the judgment of the Collector, Pali dated June 2?, 1970, by filing S.B. Civil Writ Petition No. 3314/74 in the High Court. Kapoor Chand opposed the above writ petition at the admission stage. This Hon'ble Court was, however, pleased to admit the above writ petition and directed that status quo should be maintained in regard to the possession vide order dated September 5, 1975. The Collector, Pali, during the pendency of the above writ petition, in compliance of the judgment of the Board of Revenue dated December 18, 1969, confirmed the sale in favour of the petitioner by order dated December 30,1975 after hearing the parties. The Collector, Pali, also issued sale certificate dated February 21, 1976 for the shop in question in favour of the petitioner. The case of the petitioner further is that out of the sale price of Rs. 20,101/- deposited by the petitioner Rs. 5,025/25 were remitted by the Sub-Divisional Officer, Pali, to the Commercial Taxes Officer, Pali vide challan dated December 29, 1965. The Commercial Taxes Officer did not return the said amount though it has been observed in the order of the learned Single Member of the Board of Revenue dated March 6, 1973 that 'The Commercial Taxes Officer, Pali held that no public demand was due from Kapoor Chand'. It would be important to mention at this stage that the above situation had arisen in view of the fact that the original demand raised by the Commercial Taxes, Officer, Pali had been set aside in appeal filed by Kapoor Chand and the Collector had been directed to drop the recovery proceedings as no demand was at all due against Kapoor Chand.
11. It would also be important to mention that in the meanwhile Sub-Divisional Officer, Bali also remitted an amount of Rs. 12 103/- to the Tax Recovery Officer, Income Tax Department Jodhpur in respect of income-tax dues against Kapoor Chand on a requisition made by the Tax Recovery Officer Kapoor Chand then filed a revision petition before the Board of Revenue against the order of Collector, Pali, dated December 30, 1975 confirming the sale in favour of the petitioner. During the pendency of the above revision petition Shri Kapoor Chand also filed a writ petition challenging the order of the Collector dated December 30, 1975. In the writ petition No. 3314/74 filed by the petitioner, an objection was raised on behalf of Kapoor Chand that the writ petition was not maintainable as the Collector Pali had already confirmed the sale during the pendency of the writ petition vide order dated December 30, 1975 and that he had filed a revision against the said order of the Collector which was pending before the Board of Revenue When the above writ petition came up for hearing the petitioner advocate submitted that the petitioner be allowed to withdraw the writ petition as after the filing of the writ petition the sale of the shop in question had been confirmed by the Collector. The learned Single Judge by order dated September 8, 1983, dismissed the above writ petition as withdrawn. It was also observed that it would be open to the petitioner to urge before the Board of Revenue in the revision petition filed by Kapoor Chand that the question about the validity of sale in favour of the petitioner had already been decided by the Division Bench of the Board of Revenue by judgment dated December 18,1869 and that the observation made by Single Member of the Board of Revenue in his order dated March 6, 1973, were contrary to the said judgment of the Division Bench dated December 18, 1969, and that further observations of the learned Single Member were purely obiter in the nature. On an argument raised on behalf of learned counsel for Kapoor Chand it was observed as under:
Mr. Hasti Mal also desires to challenge the validity of the order of the Division Bench of the Board of Revenue dated December 18, 1969. Respondent No. 7 Kapoor Chand may do so before the Board of Revenue if it is open to him under the law to make such challenge.
The writ petition filed by the petitioner was held to be infructous and the petitioner was allowed to withdraw the writ petition.
12. Thereafter the revision filed by Kapoor Chand against the order passed by the Collector, Pali dated December 30, 1975 was heard by a learned Single Member of Board of Revenue. The learned Single Member by judgment dated Jute 14, (984, allowed the revision petition filed by Kapoor Chand and set aside the order of the Collector Pali dated December 30, 1975 confirming the safe of the shop in question in favour of the petitioner. An application for leave to appeal to Division Bench was dismissed by the learned Single Member by order dated July 17, 1984, In these circumstances, the petitioner Ganesh Ram has filed the present writ petition challenging the judgment of learned Single Member of the Board of Revenue dated June 14, 1984.
13. Before dealing with the contentions raised in the present writ petition it would be proper to make a mention of the reply filed by the respondent Kapoor Chand. It has been alleged in the reply that the petitioner has concealed some material facts from this Hon'ble Court. According to him the true facts are that the Commercial Taxes Officer had without the authority of law levied sales tax on rope which was exempted under the provisions of the Sales Tax Act under Government Notification of July, 1958 The tax of Rs. 7,447,80 itself was levied without the authority of law, which was subsequently held to be so by the appellate authority and the unlawful levy of tax was set aside. A communication was also sent by the Commercial Taxes Officer to the Collector, Pali vide letter dated November 1, 1968, requesting him not to affect the recovery as the unlawful levy of tax was set aside. A. communication was also sent by the Commercial Taxes Officer to the Collector, Pali vide letter dated November 1,1968, requesting him not to effect the recovery as the unlawful levy had been set aside by the appellate authority. It has been further alleged that it was absolutely incorrect on the part of the petitioner to say that he immediately offered Rs 5,205.25 in cash to the Land Revenue Inspector on December 26, 1966. It was also incorrect to say that the Land Revenue Inspector refused to accept the said amount and stated that he did not have proper or safe place with him at Sumerpur and that there were no means to Tehsil headquarter at Bali to deposit the huge amount. It was again incorrect to say that the Land Revenue Inspector asked the petitioner that he would accept the crossed cheque in place of cash and that the petitioner, therefore gave a crossed cheque for the said amount to the Inspector The alleged affidavit of the auction officer (Annexure 2) is not admitted to be correct. It has been further alleged that the affidavit of auction officer filed by the petitioner at this stage should not be accepted as it is a writ of certiorari and fresh evidence on facts and especially any contradictions of the facts on record of the auction proceedings, should not be admitted. It has been further alleged that such affidavit was not filed by the petitioner first at any stage of the proceedings before the revenue authorities though a number of times appeals, revision petitions, review petitions and special appeals were filed nor the petitioner made any grievance before any of the revenue authorities that he was not allowed proper opportunity to lead evidence. It is further alleged that the affidavit cannot be admitted at this stage as a serious prejudice would result to the respondent by admitting the same in as much as he would not be able to cross-examine the said Revenue Inspector nor he would be able to lead evidence in rebuttal. It was also submitted that in the earlier writ petition also this affidavit was filed but when the petitioner found that the same was likely to be dismissed on merits then he withdrew that writ petition. Any affidavit as such produced in that writ petition cannot be admitted in this writ petition.
14. The respondent has further submitted in his reply that one-fourth of the sale price was neither offered nor deposited immediately as required under the mandatory provision of the Act and the sale proceedings as such had been rightly held to be void by the Board of Revenue. The Board of Revenue has given categorical finding of fact that the petitioner had neither offered nor deposited one-fourth of the sale price immediately as acquired under the provisions of the Act and the petitioner cannot challenge such finding of fact before this Hon'ble Court in a writ of certiorari. It has been further alleged that no cheque was ever produced before the Tehsildar in the presence of the answering respondent and it is not known whether the petitioner had any subsisting account in any bank on the relevant dates. No Particulars of cheque nor of the bank have been shown nor any such particulars are there on the record of the case before the Revenue Authorities; though it is emphatically asserted that the submission of cheque does not fulfill the requirement of law and it has unequivocally been held by the Division Bench of the Board of Revenue is the order dated December 18, 1969 upon which the petitioner himself is basing his claim. There was no necessity of any direction of the Tehsildar for depositing the cash amount. To the contrary it was the duty of the petitioner to deposit the same immediately on the spot if he wanted to take benefit of the same. His failure to deposit the said amount on spot completely wipes out the sale as held by their Lordships of the Supreme Court in Manilal Mohanlal Shah and Ors. v. Sardar Sayed Ahmed Sayed Mohammad and Anr. : 1SCR108 . It has been further alleged in the reply that the petitioner has deliberately tried to misconstrue and iris-interpret the order of the Division Bench of the Board of Revenue dated December 18, 1969. The Division Bench had considered all the objections raised by the answering respondent against the validity of sale. The Division Bench had only said that they did not want to decide the various questions regarding the validity or otherwise of the sale. On the contrary they had left open all these questions to be decided by an authority having jurisdiction at the time of consideration of confirmation of sale under Section 248 of the Act after hearing all the parities concerned. The order dated Dec. 18,1969, did not decide anything adverse to the answering respondent. It has been further alleged that after remand of the case the Board of Revenue had transferred the case to the Collector, Pali & the case was actually pending before him. On May 7, 1970, when the Collector, Pali was on leave the petitioner joined hands with the Additional Collector, Pali and with his connivance scrupulously got the order on the file regarding the confirmation of sale. Strangely enough he obtained an immediate warrant of possession and without even giving a breathing time to the respondent. snatched the possession on the next day. It is absolutely incorrect to say that the Collector Pali had been transferred and was not on duty and the Additional Collector was working as Collector Pali on May 7, 1970.
15. It has been further alleged that the finding of the learned Single Member of the Board of Revenue that the Land Revenue Inspector was not authorised to conduct the sale under Section 249 of the Act is correct. This point is fully covered by a judgment of this Hon'ble Court in Sagarmal v. State of Raj. and Ors. 1982 RLR 313. It has been clearly held in the above case that the auction proceedings can only be conducted by the Collector or Assistant Collector empowered especially by the Collector in this behalf. The Sub-Divisional Officer had no authority to appoint the Land Revenue Inspector to conduct the sale and in the present case he had not even appointed the Land Revenue Inspector to conduct the sale. On the contrary he had sent the papers to the Tehsildar for effecting the recovery and the Tehsildar, in his turn, directed the Land Revenue Inspector to conduct the sale. However, in not case, the Land Revenue Inspector could have conducted the sale and the sale conducted by him is totally void and without jurisdiction.
16. Though, the case has a long chequered history but the facts are almost undisputed and the present writ petition mainly rests upon the validity or otherwise of the order of the Board of Revenue dated June 14, 1984. Mr. Lekhraj Mehta, learned counsel for the petitioner has vehemently contended that the learned members of the Division Bench of the Board of Revenue in their order dated December 18, 1969, had observed:
We do not, however, think that there are adequate grounds for us to hold the entire auction proceedings void.
Mr. Mehta on the basis of the above observations has contended that learned Single Member of the Board of Revenue has no jurisdiction to go into the question as to what was the effect of non-deposit of one-fourth amount in cash on the date of the bid. It is submitted that the learned Single Member has taken an erroneous view in this regard that while considering the question of confirmation of sale the question as to what is the effect of non-deposit of one-fourth of the bid amount can be considered. On the other hand, Mr. Shrimali, learned counsel for Kapoor Chand, has contended that the learned Members of the Division Bench had not decided the effect of non-deposit of one-fourth amount on the date of the bid though an argument was advanced before them and the matter was left open to be decided by the officer having jurisdiction to decide the question of confirmation of sale.
17. A perusal of the entire order of the Board of Revenue dated December 18, 969, shows that they were deciding the two special appeals filed by the petitioner Ganesh Ram against the decision of learned Single Member of the Board of Revenue dated July 1, 1968, whereby the two revisions were disposed of by the same order. In para 5 of the judgment the argument made on behalf of the petitioner Ganesh Ram has been mentioned according to which, it was submitted before them that a cheque was given on that very date at the close of the auction. If a cheque was not acceptable the officer conducting the auction should have refused to accept it. When cash was asked for instead of cheque on December 29, 1966, it was deposited the same day and the deposit of 25 per cent was. thus immediate deposit within the meaning of Section 242 of the Act. Thereafter, in para 10, the argument raised on behalf of counsel for Kapoor Chand has been mentioned in detail. It was argued that a plain reading of the Section which used the words immediately and forthwith' would show that the amount must be paid the very day in cash. Acceptance of a cheque is illegal because encashment of a cheque is bound to take time. It will not be encashed at all if the person tendering the cheque does not have adequate balance in his account in the Bank Submitting of cheque does not, therefore, amount immediate payment as contemplated under Section 242 of the Act. It appears that thereafter no decision was given on merits on the above question. The learned Members thereafter considered the question that the order of the Sub Divisional Officer passed on January 5, 1967, was passed before the requirement of Section 243 (l) of the Act regarding full payment of purchase money had been fulfilled. They also held that it was passed before the expiry of 30 days required by Section 248 and the time limit is plainly mandatory. It was held that it was not a mere procedural provision and as such there could be no doubt that the Sub-Divisional Officer's order dated January 5, 1967, in so far as it purported to confirm the sale was illegal. It was also observed that learned counsel for the respondents (Kapoor Chand and others) brought to their notice that the demand for the recovery of which the auction was held, had been set aside in appeal. The learned Members in this regard observed that it was not a matter, which was needed to be taken into account in the disposal of these special appeals. Then in para 15 of the judgment it was held that in view of their conclusion in para 13, the learned Single Member was fully justified in setting aside the order of the Sub-Divisional Officer dated January 5, 1967 in so far as it purported to confirm the sale. Thereafter, this one sentence 'we do not, however, think that there are adequate grounds for us to hold the entire action proceedings void.' has been mentioned on which the entire argument has been built by Mr. Mehta, learned counsel for the petitioner. It may also be mentioned that after the above observation the learned members of the Board of Revenue gave a direction that they would leave it to the officer having jurisdiction under Section 248 of the Rajasthan Land Revenue Act to reconsider the question of confirmation of the sale after giving to all the parties concerned with the order including the department to which the demand pertains opportunity of being heard. Thus, taking into consideration the entire judgment of the Board of Revenue, I am clearly of the view that the question regarding payment or non-payment of 25 per cent amount on the date of bid and its effect on the validity of sale was not at all decided on merits and it was left open to be decided by the Officer having jurisdiction under Section 248 of the Act. If the argument of Mr. Mehta is accepted, it would tantamount to holding by the Division Bench that the respondents were not entitled to challenge the auction proceedings on merits and the Officer having jurisdiction under Section 248 of the Act would be bound to confirm the sale after 30 days. If that be so, their was no point in remanding the case and the learned members of the Board of Revenue themselves could have taken note that 30 days had expired after December 29, 1966 and there was no controversy in depositing three fourth amount within 15 days and as such they could have held that the sale be confirmed in favour of the petitioner on the date of deciding the special appeals. Admittedly, the respondent was challenging the auction proceedings and confirmation of sale on several grounds including that one-fourth deposit was not made immediately in cash on December 26, 1966 when sale was knocked down in favour of the petitioner and also on the ground that it could not be confirmed on January 5, 1967 when 30 days had not expired and even 3/4th amount had not been deposited. If the confirmation of the sale was set aside on one ground it cannot be held that the respondent was not entitled to challenge the same on other grounds.
18. Be that as it may, it is an admitted position that the High Court in any of the earlier writ petitions has never decided the above questions on merits and whatever view might have been taken by the Board of Revenue it cannot bind this court and in this regard Mr. Mehta also frankly conceded that there is no restriction on the powers of this court to decide the question on merits.
19. The Supreme Court in Manilal Mohanlal's case(supra) have clearly laid down that the provisions of Order 21, Rules 84, 85 and 86 CPC requiring the deposit of 25% of the purchase money immediately on the person being declared as a purchaser, such person not being a decree-holder and the payment of balance of the purchase money within 15 days of the sale, are mandatory and upon non-compliance with these provisions there is no sale at all. It has been further held that when there is no sale within the contemplation of these Rules there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if do not exist in the eye of law Mr. Matha tried to distinguish the above authority by submitting that the case in hand is not a case where 25 per cent of the purchase money has not been deposited, but the question is that the petitioner had tendered the cheque instead of cash and that also on the ground that the Land Revenue Inspector, who was conducting the sale had declined to accept the cash.
20. Mr. Metha also placed reliance on Ram Chand Spg. and Wvg. Mills v. Bijli Cotton Mills (Pvt). Hathras and Ors. : 2SCR301 , in order to show that in the above case evidence was appreciated in order to find out whether the amount was paid immediately after the auction or not. It was submitted that no inquiry was held in this regard by the Collector and as such the petitioner was entitled to file an affidavit of the auction officer in order to support his case. M/s Ram Chandra Spg. and Wvg. Mills case(supra) relied upon by Mr. Mehta was not a case of tendering the amount by cheque and the payment having been made subsequently in cash. In the above case a stand was taken by respondent No 1 that he had tendered the said amount immediately after the auction, the said amount being large, the Amin hesitated to accept it in cash as it was too late that day to deposit it in the treasury. It was also alleged that the Amin wanted to know whether he could accept a cheque instead of cash and therefore, took one Chhotey Lal representative of the respondent along with him to the residence of the Munsif to seek directions. Leaving Chhotey Lal near the car out side the Munsif's residence, the Amin went in to consult the Munsif if he could accept a cheque but the Munsif advised him to take cash. Thereafter the Amin returned to the car where he accepted the said amount from Chhotey Lal and issued there and then a receipt therefor. The respondent's case thus was that he offered the amount immediately that it was no fault of his that the Amin did not accept and that it was paid in any event soon after the auction & therefore, payment was in consonance with Order 21, Rule 85 CPC. The Civil Judge refused to accept the case of the respondent and set aside the auction sale holding it to be invalid. On appeal, the High Court accepted the Amin's report and his evidence and reversed the judgment of the Civil Judge. Their Lordship of the Supreme Court upheld the order of the High Court that there was no contradiction between the Munsif's evidence and that of the Amin. Thus, in the above case the amount was paid in cash by the auction purchaser soon-after consultation with the Munsif. This delay was considered not to be on account of the fault of the auction purchaser and it was held that the amount was offered immediately after the sale.
21. There is no dispute in the present case that the amount in cash was deposited in Government treasury on December 29, 1966 though the sale was knocked down in favour of the petitioner on December 26, 1966. Learned Single Member of the Board of Revenue while considering this question has not placed reliance on the affidavit of Pokar Das Land Revenue Inspector. It was mentioned that it appeared to be an after thought to fill in lacuna of non-deposit of 25 percent of the bid amount. Mr. Mehta, learned counsel for the petitioner, streneously contended that the learned member of the Board of Revenue mis-read the affidavit in stating that there was no mention in it that because there were no means for the safe custody of the cash Pokar Das asked the auction purchaser to give a cheque. It was submitted that in the affidavit it was clearly mentioned that there were no means for the safe custody of the cash and as such Pokar Das asked the auction purchaser to give a cheque. It is no doubt correct that in the judgment it has been material that there was no mention of the above fact but that alone is not mentioned. The learned Member has in the next sentence clearly observed that it appeared to him to be an after thought to fill in lacuna of non-deposit of 25 per cent of the bid amount. This is purely an assessment and appreciation of a fact and if the Board of Revenue being the highest court in revenue matters has taken a particular view, it cannot be set aside in exercise of certiorari jurisdiction of this Court. The Board has jurisdiction to decide a question of fact either way after appreciating the evidence and it cannot be said that the Board of Revenue had no jurisdiction to take such a view.
22. The next important question arising in the case is that the Board of Revenue has held that Pokar Das, the Land Revenue Inspector had no jurisdiction to conduct the sale. Under Section 239 of the Act every sale under Chapter X can be made either by the Collector in person or by the Assistant Collector specially appointed by him in this behalf. Though by a subsequent amendment Tehsildar can also be specially appointed by the Collector but at the relevant time in the year 1966 only the Assistant Collector could have been specially appointed. The above question has also been decided by a learned Single Judge of this Court in Sagar Mal's case (supra). It has been held in the above case as under:
Mr. Bhandari argued that the purpose of providing in Section 239 of the Act that the sale shall be made either by the Collector in person or by an Assistant Collector or Tehsildar specially appointed by him in this behalf is that a superior and responsible officer of the State should conduct the sale and as the Assistant Commercial Taxes Officer is a very responsible officer, the task of conducting the sale could have been delegated to him. The argument advanced by learned counsel may have some justification, yet Section '> 39 does not engraft any exception and only the authorities specifically enumerated therein are authorised in law to conduct the sale, namely, the Collector in person or an Assistant Collector or Tehsildar, specially appointed by the Collector in this behalf. There is no provision for the Assistant Commercial Taxes Officer for being authorised to conduct the sale. As such it cannot be held that by any stretch the Assistant Commercial Taxes Officer could be considered to be an authorised person for conducting the sale under Chapter X of the Land Revenue Act. I have not doubt in my mind in holding that the sale conducted by the Asstt. Commercial Taxes Officer, in the present case, was without jurisdiction and was a nullity.
It was then argued by the learned counsel appearing for the State that even if the sale was conducted by the Assistant Commercial Taxes Officer, in the instant case, no substantial injury was caused to the petitioner and as there was no failure of justice, this Court should not interfere in its extraordinary jurisdiction under Article 226 of the Constitution. When the sale affected by the Assistant Commercial Officer is a nullity, it is difficulty to hold that no manifest injustice was caused to in the present case. For ought one know if the sale proceedings were conducted in a proper and legal manner, there could have been a higher bid and at any rate it. can be safely held that the interest of the petitioner would have been protected. It is possible that if the tenancy rights in the land are resold now in accordance with law, then the same may fetch better price.
23. Mr. Metha, learned counsel for the petitioner, submitted that the view taken by Dwarka Prasad, J, in the above case is not correct and should be reconsidered by this Court. It was submitted that there is a difference between conducting the sale proceedings and making order for sale or for confirmation of sale. It was submitted that the former act is merely ministerial and can be performed by any person, who may be authorised by the Collector or the Sub-Divisional Officer and it would not be necessary that it should be conducted by the Collector in person or the Assistant Collector only. It was also submitted that it could never have been the intention of the legislature that the auction proceedings should also be conducted by an officer of the rank of Collector or Assistant Collector himself and any other lower Revenue Officer could not be authorised to do so. It was also submitted by Mr. Metha that in case of conducting of auctions under the Civil Procedure Code it is always done by the Amin or Nazir and not by the Presiding Officer of the Court. I find no force in the above contention. Under Order 21, Rule 65 CPC it has been provided as under:
Save as otherwise prescribed, every sale in execution of a degree shall be conducted by an officer of the court or by such other person as the Court may appoint in this behalf and shall be made by public auction in the manner prescribed.
24. In Section 239 of Rajasthan Land Revenue Act the language is entirely different and it reads as under; as it existed in 1966:
Section 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 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.
25. There is no ambiguity at all in the above provision and it specifically mentions that every sale under this Chapter shall be made either by the Collector in person or by an Assistant Collector, who should also be specially appointed by the Collector in this behalf. It may be important to mention that apart from Assistant Collector now Tehsildar has also been added after the word 'Assistant Collector and this also shows the intention of the legislature that it never intended to appoint any person below the rank of a Tehsildar. As already mentioned above at the relevant time only Assistant Collector could have been specially appointed by the Collector. While under Order 21, Rule 65, Code of Civil Procedure, the sale can be conducted by an officer of the Court or by other person as the Court may appoint in this behalf but in the case of arrears of revenue or Public Demands Recovery as arrears of revenue sale has to be made by officers specifically mentioned in Section 239 of the Act. The analogy of Order 21, Rule 65 CPC cannot thus be applied for conducting the sales under Section 239 of the Act.
26. Mr. Mehta also contended that the provisions of Section 239 should not be treated as mandatory and even if the sale has been conducted by Land Revenue Inspector, it ought to have been shown by the respondent Kapoor Chand that substantial injury has resulted to him on account of sale conducted by Pokar Das Land Revenue Inspector. It was submitted that if this objection could be waived by Kapoor Chand the provision should be considered as directory. Reliance in this regard was placed on Baldeo Das Birla and Ors. v. Lal Nilmani Nath Sahi Deo and Ors. AIR 1928 Patna 615. Joint Hindu Family Pilada Ram and Ors. v. Joint Hindu Family Tulsi Das Asa Nand and Ors. AIR 1940 Lahore 30, Calcutta National Bank Ltd. v. Rangaroon Tea Co. Ltd. and Ors. : AIR1967Cal294 , Brijlal v. The State of Patiala and Anr. : , K.T.K. Thangamani Salem and Anr. v. The Chief Secretary, Government of Madras and Anr. AIR 1965 Madras 255, Umananda Roy v. The Compensation Officer, Dhubri and Ors. AIR 1966 Assam & Nagaland 81, and Maliram Nemichand Jain v. Rajasthan Financial Corporation and Anr. AIR 1974 Rajasthan 204.
I do not propose to discuss the above authorities as all the above cases deal with the provisions of other Acts and have no bearing and relevancy for the determination of the powers and scope of Section 239 of the Act. In my view, the provisions of Section 239 are mandatory in the sense that no person other than the Collector or the Assistant Collector authorised by the Collector, could have jurisdiction to conduct the sale under Section 239 of the Act at the relevant time. In this view of the matter Pokar Das, Land Revenue Inspector had no jurisdiction to conduct the sale and the entire sale proceedings being nullity are liable to be quashed.
27. The interesting feature of the case is that the very demand of Rs. 7,447.80 raised by the Commercial Taxes Officer, Pali for the recovery of which the shop in question was sold, was itself set aside in appeal and no liability of any tax remained due against the respondent Kapoor Chand. The auction, however, could not be stayed and the petitioner, who is an auction purchaser paid Rs. 20,171/- and obtained possession on the shop on May 8, 1970. Since then the petitioner is in possession. The petitioner has also tried to show before this Court that he has invested several thousands of rupees as the shop has fallen down due to floods in Suraerpur. It was also submitted that out of the aforesaid amount Rs. 5,025.25 were remitted to the Commercial Taxes Officer vide Challan dated December 29, 1966 and an amount of Rs. 12,103/-was also recovered by the Tax Recovery Officer, Income Tax Department, Jodhpur in respect of the Income-tax demand due from Kapoor Chand. During the course of arguments before me, Mr. M.L. Shrimali learned counsel for Kapoor Chand made a statement that his client is prepared to pay the aforesaid amount to the petitioner and he would take steps to recover the amount back from the Commercial Taxes Department. In view of the above statement made by learned counsel for Kapoor Chand it is directed that the respondent Kapoor Chand shall pay an amount of Rs. 17,128.25 to the petitioner and the petitioner shall also be entitled to recover the balance lying in deposit with the Sub-Divisional Officer, Bali or elsewhere. The order passed by the Board of Revenue dated June 14, 1984 is upheld. The respondent Kapoor Chand would be given possession of the shop in question immediately on making payment of the aforesaid amount of Rs 17,128.25 to the petitioner or on depositing the same in the Court of Sub-Divisional Officer, Bali. The Sub-Divisional Officer, Bali shall take suitable steps for delivering possession to Kapoor Chand after fulfilling the above conditions.
28. With the above observations this writ petition is dismissed with no order as to costs.