1. This is an appeal against the judgment of Ramanujarn J. dated 20-11-1975, rendered in W.-P. No. 2956 of 1972. The learned Judge disposed of two writ petitions, one W. P. No. 2956 of 1972, filed by the appellant herein and the other W. P. No. 4576, of 1975 (Pararnasivam Pillai v. Angammal and others) filed by the 4th respondent herein, by a common judgment. For the purpose of understanding the controversy between the parties, it is necessary to refer to certain facts.
2. The appellant was the original owner of S. Nos. 163/1 and 163/3 of an extent of 3.20 and 0.20 acres respectively in Ariyamangalam village, Tiruchirapalli taluk. She had borrowed a sum of Rs. 1600/- on 21-10-1957 from the Government for the installation of a pump set in the well situated in those lands under Taluk L. No. 22 of 1967. She had earlier borrowed two loans from two creditors on the security of her lands. One of the creditors filed 0. S. 660 of 1958 on the file of the District Munsif Court. Tiruchirapalli for recovery of the amount due to him. In execution of the decree obtained in that suit, the said lands were brought to sale and actually sold in court auction to one Shanmugharn Chettiar, subject to the Government loan of Rs. 1600/- and the said sale was duly confirmed. The auction, purchaser Shanmugharn Chettiar applied to the Revenue authorities for payment of the loan amount outstanding on the lands and by proceedings dated 2-1-1963, the auction purchaser was directed to pay a sum of Rs. 2126.671in full discharge of the Government loan due by the appellant herein. Accordingly, the auction purchaser paid the sum on 5-1-1973. Meanwhile at the instance of the appellant herein, the District Court, Tiruchirapalli in C. M. A. 106 of 1961 set aside the court auction sale held in favour of Shanmugham Chettiar. The appellant thereafter filed E. A. 2007 of 1965 for restitution by way of redelivery of the lands and succeeded in getting possession of the Property from the auction purchaser. The result of this was that the ownership to the property of the appellant herein was restored. Inview of this, the District Revenue Officer on 15-10-1968 directed that,, the sum of Rs. 2126-67 remitted by the auction purchaser Shanmugham Chettiar towards loan No. 22 of 1967 should be refunded to him and that the security lands in S. Nos. 163/1 and 163/3 of Ariyamangalam village should be attached and proceeded for the realisation of the loan amount from the appellant herein. Accordingly, action was taken for the repayment of the amount to Shanmughaiia Chettiar and for recovery of the amount due to the Government under the Tamil Nadu Revenue Recovery Act 1864 (Tamil Nadu Act 2 of 1864) (hereinafter referred to as the Act) against the appellant herein.
3. During the course of these Proceedings, the appellant took up the stand that the auction purchaser having paid the loan amount in her name, the loan should be taken to have been discharged and therefore the amount paid by the auction purchaser should not have been returned to him without reference to her and the loan amount having been discharged by payment, there was no liability on her part to pay the amount again to the Government. The Revenue authorities did not accept this stand of the appellant and therefore brought the lands for sale under the Act. On 2-6-1970, the lands were actually sold in favour Of the 4th respondent herein, the petitioner in W. P. 4576 of 1975. The appellant did not file an application to set aside the sale as per Section 37-A. However, she filed an application under Section 38 which was not successfied. The Revenue side was actually confirmed an 17-8-1972, by the 3rd respondent namely, the Revenue Divisional Oflicer, Tiruchirapalli. The appellant thereafter filed w. P. 2956 of 1972, to quash the proceedings of the 3rd respondent confirming the revenue sale contending that the revenue sale itself was illegal. Subsequent to the filing of the said writ petition by the appellant herein, the Government Passed an order in G. O Ms. 620 Revenue dated 14-3-1975 on the report of the Board of Revenue to the ef7ect that as the appellant had disputed the liability to Pay the loan amount, the Collector without deciding the question, of liable, should not have he reacted the sale of the property in revenue auction and that therefore the writ petition filed by the appellant cannot be successfully defended. In this view, the Governnment had asked the Government Pleader to request the court to get aside the sale and remit the case to the Collector with a direction to decide the question of liability before invoking the Revenue Recovery Act. The 4th respondent herein thereafter filed W.P. P4576 of 1975 challenging the validity of the sold Government Order dated 14-34975. Ramanujam J. by the impugned judgment dismissed both the writ petitions The dismissal of W P4576- of 1975 has become final because no further proceedings have been instinction against the judgment of Ramanujan, J. It is as against the dismissal of W. P. 2956 of 1972, the owner of the land has filed the present appeal.
4. Learned counsel for the appellant contends that Ranianujam, I was in error in holding that the revenue auction pale was conducted in accordance with law and therefore it was not illegal For the purpose of appreciating this argument, it is necessary to mention the grounds before the learned Judge. The judgment of the learned Judge Itself Points out that according to the appellant herein the entire sale proceedings are illegal and invalid for three reasons, namely _ (1) that the loan amount was not outstanding on the date of sale, (2) that the Provisions of the Revenue Recovery Act and the principles of natural justice had been violated: and (3) that the lands are worth more than Rs. 60,000 and they have been sold for a sum of Rs. 8100. All the said three objections set out in the judgment of the learned Judge had been rejected, and those Objections were repeated before us in support by the present appeal.
5. As far as the first objection is concerned, we have no hesitation ill holding that there is no substance whatsoever in the same. Once the execution sale was set aside at the instance of the appellant herein and the appellant got restitution by way of getting back possession of the Property the question of the former execution purchaser having discharged the loan due by the appellant herein to the Government did not arise. Shanmugam Chettiar when he paid the amount to the Government did not pay the same as the agent of the appellant herein or on her behalf or under her instructions. At the time when the amount was paid by him, he had purchased the property in the court auction sale and the sale had been confirmed and consequently, he had paid the amount as successor in interest of the appellant herein in his own right and not an behalf of the appellant. Once the court auction sale was set aside and the appellant obtained restitution, Shanmugham Chettiar became a stranger to the property and even an the date when he paid the amount, he must be deemed to have been a third party having nothing to do either with the Property or with the appellant herein. Under those circumstances, the amount Plaid by Shanmugham Chettiar was rightly directed to be refunded, and the appellant having pursued the matter regarding the court auction sale Minot now say that what was paid by Shanmughain Chettiar was towards the discharge of her loan and his Payment must be taken to be a payment by her and therefore the loan was not Outstanding on 2-6-19-70, when the Property was sold by revenue auction.
6. As far as the second objection is concerned, two aspects of that objection would appear to have been placed before the learned Judge and the learned Judge in his judgment had dealt with the same. One objection to in relation to the failure to comply with the requirements of Section 36 of the Revenue Recovery Act. One of the requirements of Section 36 of the Act is that previous to the male, the Collector or other officer empowered by the court in that behalf, shall issue a notice thereof in English and in the language of the district, specifying the name of the defaulter, the position and extent of the land and of his buildings thereon, the amount of revenue, assessed on the land, or upon its different sections; the Proportion of the public 1"enue due during the remainder of the current fasli and the time, place, and conditions of sale. This notice shall be fixed up one month at least before the sale in the Collectors office and in the taluk cutchem in the nearest Police station house and on some conspious Part of the land. One of the Objections raised -by the appellant was that the notice referred to in this section had not been fixed up on some conspicuous Part of the land as required by Section 36 of the Act. Ramanujam. J. found as a fact that the Notice was not fixed up on some conspious Part of the land. Not withstanding this finding, the learned Judge went on to state that this failure on the Pot of the authorities herein did not invalidate the sale The learned fudge observes as follows-
"Thus the only Illegality pointed out and established is that the sale Production has not been affixed in the sale land. The question is whether that will invalidate the revenue sale. In Bomniavya Naidu v. Chidambaram Chettiar (1899) IM 22 Mad 440, a Division Bench of this court dealing with the scope of Section 38 of the Revenue Recovery Act held that where the only Irregularity shown was an omission to display the notice of sale in the Collector's office and where there was no evidence to show that this has affected the attendance of buyers at a place many miles distant where the ask actually took place, such an irregularity cannot be said to have caused substantial injury or loss and that, therefore, the sale cannot be set wide by a civil court. In that case, the court held that where a party seeks to set aside a revenue sale in a civil court an the ground of irregularity or mistake in the conduct of sale he must establish, as in the proceedings under Section 38, that substantial injury has been caused by such irregularity or mistake and though direct evidence of such substantial injury is not necessary to connect inadequacy of the price realised with a material irregularity, where the latter has been proved, the relation of cause and effect between the two may be inferred, where such inference is reasonable. In Naganna v. Venkatarayalu, AIR 1945 PC 178, the Judicial Committee had to deal with the respect of irregularity in not affixing the sale notice in the Collector's office under the Civil Procedure Code. It was argued that though that irregularity has been established, it has caused no substantial injury and that therefore the sale cannot be set aside. In that - connection, the Judicial Committee expressed :- 'In order to set aside a sale under 0. 21, R. 90, it should be moved. (11 that there was material irregularity or fraud in publishing or conducting the sale, and (2) that the applicant had sustained substantial injury by reason of such irregularity or fraud.. Mere irregularity or fraud in publishing or conducting the sale will not entitle the court to set it aside, unless upon the facts proved the court Is satisfied for the applicant has sustained substantial injury by reason of such irregularity or fraud ... It appears to their Lordships that upon the language of the Proviso as it now stands, what is required is that the court should be satisfied that the applicant has suffered substantial injury by reason of the material irregularity or fraud, and if the court is so satisfied from the facts proved, then the applicant may be said to have discharged his burden. Their Lordships think that this burden may be discharged not only by direct evidence connecting the material irregularity or fraud with the substantial injury, but also by circumstantial evidence, that is evidence from which a reasonable inference may be drawn that the substantial injury was the result of the material irregularity or fraud, as Pointed out in Ramasesha Iyer v. Ramanujachariar, AIR 1935 Mad 459 where all the relevant decisions have been considered. The Madras and Calcutta High Courts have always been of this opinion."
7. Ramanuiam, J. thereafter extracted another portion of the Judgment of the Privy Council dealing with the irregularity in not affixing the sale proclamation in the Collector's office as prescribed in Order 21, Rule 54 read with Rule 67, Civil P. C. After extracting the said passage, the learned Judge proceeds to state as follows:
it is true in this case the sale notice has not been affixed on the sale land and that is an irregularity. The question 'is whether it is a material irregularity which will vitiate the sale. The petitioner has not adduced any material to indicate that the non-affixture of the sale notice in the sale land has resulted in any substantial injury. The petitioner, in all her representations before the authorities and in the affidavit filed in support of the writ petition has not alleged that the non-affixture of the sale notice has led to any substantial injury. There is also no material to indicate that the price fetched in the revenue sale is low compared to the actual market value of the land. Though the petitioner has alleged in the affidavit in support of the writ petition that the price fetched is inadequate, she has not attributed that alleged inadequacy of price to the non-affixture of the sale notice in the sale land. Inadequacy of price May be susceptible of other explanation such as the apprehension on the part of the bidders that the purchaser will probably be involved in litigation. It cannot therefore be inferred that inadequacy of the price if any Is a direct result of the said non-affixture of the sale notice in the sale land."
Section 38 of the Revenue Recovery Act, 1864, in sub-section (1)s thereof provides that at any time within30
from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake or fraud, in publishing or conducting it, but, except as otherwise is hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. It may be noticed that this section deals with only material irregularity or mistake or fraud inpublishing or conducting the sale. This section does not say anything about illegality in the conduct of the sale itself. It is admitted that the Act itself does not bring out the distinction between an illegality and an irregularity. On the other hand, the decision in Bommavya Naidu v. Chidarnbararn Chettiar. (1899) ILR 22 Mad 440 referred to by Ramanujam, J.deals with only Section 38 of the Revenue Recovery Act already referred to in that case also, after the Collector dismissed the application filed under Section 38 of the, Act. the matter was taken to the civil court and the District Judge held that the notice of sale was not put up in the Collector's office, that this was an irregularity, but that did not furnish sufficient ground for setting aside the sale and he also decided that he had no jurisdiction to entertain the suit. It was that decision which was taken up by way of appeal to this court in the decision referred to above. Consequently, the learned Judges were concerned with the scope of Section 38 of the Act as to what constituted material irregularity and under what circumstances the appellant therein would be entitled to the relief of setting aside the sale. Therefore, this decision will be of assistance only for the purpose of ascertaining the scope of the power of the Collector under Section 38 and will not be of any assistance to find out can be said to be an illegality in the conduct of the sale and what can be said to be material irregularity in the publishing and conduct of sale. Even Mr. Peter Francis, the learned counsel for the 4th report dent had to rely only on the decisions of this court under Order 21, Rule 54 and Order 21, Rule 90, Civil P. C. as to the circumstances under which an attachment or a sale can be set aside.He was not able to draw our atfention to any direct decision holding what would constitute an illegality and what would constitute only an irregularity in the conduct of sale under the Revenue Recovery Act, 1864, if a particular statutory requirement has not been complied with
8. it is relevant in this context to refer to Appendix III of the Board Standing Order 41. Standing Order 41 deals with the general procedure under the Tamil Nadu Revenue Recoverv Act 2 of 1864, with which we are concerned. There ii Appendix III to para 26 of this Standing Order 41. and the significance of this Appendix is that it enumerates what may be said to be illegalities and what may be said to be irregularities. The said B. S. 0. would appear to have been issued with reference to an order of the Government in G. 0. Ms. No. 686 Revenue dated 20-3-1936. The preamble to this Standing Order itself gives - the necessity for the Board pointing out the distinction between an illegality and irregularity under the provisions of the Act 2 of 1864 and enumerates , the same. The preamble to the Board's proceedings states -
"In its proceedings; No. 32, Press, dated 5-5-1923, the Board issued instructions to subordinate officers to avoid certain irregularities frequently noticed in sales under the Madras Revenue Recovery Act II of 1864.' As it has been found in practice that subordinate revenue officers find it difficult to distinguish between illegalities which contravene express provisions of law and thereby vitiate the sale proceedings and irregularities which are merely infringements of executive instructions issued from time to time, the Board has drawn up a list showing such illegalities and irregularities separately. The list as approved by Government is appended to these proceedings.
2. Officers committing any of these irregularities will render themselves liable to disciplinary action."
After this preamble, occur two headings; heading (a) enumerating the illegalities and heading (b) enumerating the irregularities (a) (7) reads as follows -
(a). The following are illegalities, as they contravene the express provisions of law and thereby vitiate the sale proceedings:
(7) Failure to affix the sale notice No. 7 on the sale land (Section 36 second of the Act).
Under the heading (b) are enumerated what according to the Board constituted mere irregularities and it states -
"The following are irregularities that contravene the executive instructions issued from time to time by the Board and the Government Officers committing such irregularities will render themselves liable to disciplinary action."
We are not stating that this enumeration 9f illegalities and irregularities by the Government and the Board of Revenue is the final word in this matter nor are we saying that they are exhaustive and no other case of illegality or irregularity can be conceived nor are we observing that such an enumeration and distinction are binding on a civil court. What we are interested in pointing out is that these instructions of the Board of Revenue are at least binding on the Government officers who powers reason why that the Government have rightly requested the Government Pleader to represent to the court that the writ petition filed by the appellant herein may be allowed and the sale may be set aside and the matter remitted to the Collector for fresh disposal. But one thing is clear that there is a distinction between illegality and irregularity with regard to a sale conducted under the Act of 1864. Consequently, the question that will arise for consideration is whether the failure on the part of the officers concerned to affix a copy of the sale notice on a conspicuous part of the land to be sold will constitute an illegality or merely a material irregularity.
9. There is no gainsaying the importance of complying with this requirement. A mere survey number given in the sale notice may not be sufficient for the intending pur-1 chaser to identify the land so that he: can make up his mind as to what price he should offer. It is only the fixing up of a copy of the notice on some conspicuous part of the land that will enable an 'intending purchaser - to identify and localise the land and also assess its value so that he will be in a position to offer a proper price for; the land. Under those circumstances, the conclusion is irresistible that the requirement that a copy of the sale notice should be affixed on some conspicuous part of the land sought to be sold is a basic and inescapable obligation imposed on the revenue authorities conducting the sale. If so, the question for consideration is whether the failure, to observe this statutory requirement would vitiate the sale so as to enable the court to set aside the sale itself. We are of the opinion that the failure to observe - such a requirement, which its having -regard to the necessities of the situation to which we have drawn attention will constitute an illegality which is not covered by section 38 of the Act If such an illegality in established, it is certainly open to the owner of the land, whose has been sold away, to approach court or this court in exercise of jurisdiction under articles 226 of the constitution to ask for relief by way of getting aside the sale, differing from Ramanujam, J. we take the view that the failure On -the Part of the Collector to affix a copy of the sale notice on the land in question has vitiated the sale and therefore it will be legitimate for this in exercise of jurisdiction under Article 226 of the Constitution to set aside the sale. We may point out in this context that no direct decision of any court dealing with this question on the failure to comply with the statutory requirement has been brought to Our notice and therefore we have come to our own conclusion on the bails of the nature of the requirement and the effect it will have on the right of the owner of the land.
10. Assuming that this conclusion of ours is not correct, still we are of the opinion that there is a further Illegality that has occurred in the present case which will vitiate the sale of the land, That has been dealt with by Ramanujam, J. himself. It would appear that before the learned Judge It was contended on behalf of the appellant that there has been a violation of Section 44 of the Act of 1864. That section reads as follows
"it shall be lawful for the Collector or other officer empowered by the Collector In that behalf, to sell the whole or any portion of the land of a defaulter in discharge of arrear of revenue, provided always that so far as may be practicable no larger section of the land shall be gold than may be sufficient to discharge the arrears with Interest, and expenses of attachment, management, and sale."
It is not in dispute that the amount duo to the Government by the appellant on the loan account on the date
of sale was only Rs. 2518. Notices in forms Nos. 5 and 7. refer to only this amount. Based upon this contention was urged before the learned Judge that the Collector was under an obligation to sell only a fraction, of the land which will be sufficient to get this sum of Rs 2518 which was due to the Government, and contrary to the statutory safeguard provided in the proviso to Section 44 of the Act extracted above, the entire land of 3.40 acres has been sold by the authorities under the Act authorities functioning under the act. Dealing with this contention, Ramanujam J. has stated as follows-
As regards the alleged violation of section 44, it is seen that though the amount of loan due by the petitioner with great respect to the learned Judge, we are of the opinion that the learned Judge is neither correct nor as only Rs. 2518, with subsequent consistent in this behalf. We are saying that the learned Judge is not correct because it Is admitted before us interest, as is clear from the sale notice that the learned Judge committed an error in stating that the sale has been ordered free from the mortgage since the sale has been ordered free amount of Rs. 4000/- and by the sale of the property a sum of Rs. 6541/-. The revenue sale has fetched only a sum of Rs. 8100. as the amount fetched by the revenuesale has fetched by the revenue sale is not possible to say that there has been a violation of section 44 of the act which directs that only such portion of the land which will satisfy the debt due by the defaulter should be sold apart from this appendix 3 to Board Standing Order 41 paragraph 26 does not make the revenue sale invalid when the land sold is slightly in excess of the sufficient portion from which the amount due from the defaulter could be realised.
With great respect to the learned Judge we are of the opinion that the learned judge is neither correct nor consistent in this behalf. We are saying that the learned judge is not correct because it is admitted before us that the learned judge committed an error instating that the sale has been ordered free from the mortgage amount of Rs. 4000/- and by the sale of the property a sum of Rs 6541/- was sought to be recovered while in fact the sale was free of encumbrances. The amount due to the government was only Rs. 2518 and any revenue sale under the Act of 1864 can be effected only for recovery of the amount due to the government and certainly no sale can be effected for recovery of the amount due to a mortgage. Therefore the learned judge was not right in stating that the property was sold for recovery of a sum of Rs. 6541 and consequently the amount fetched by the revenue sale was not so disproportionate to the amount sought to be recovered by the revenue sale.
11. Secondly, the learned Judge has revenue sale, it is not possible to say referred to Appendix III to Board
Standing order 41 to which we have referred. If the learned Judge is willing to be guided by that Appendix, the larned judge would have found that under (a) (7) of that Appendix failure to affix the sale notice No.7 on othe sale land was declared to of an illegality and therefore the sale was vitiated. We have examined both headings (a) and (b) under Appendix III to Board Standing Order 41 and neither (a) or nor (b) includes in its encumeration a violation of section 44 of the Act, Therefore Appendix III as such is not of any assistanace for construing the scope of the proviso to section 44 or for assessing the effect of the failure to comply with the requirements of the proviso. Therefore, we have to consider this position independently of Appendix III. If so considered, we have no hesitation whatever in holding that there has been a violation of the proviso to Section 44 of the Act, in the present case and such violation constitutes an illegality vitiating the sale itself. We have already refereed to the fact that the amount due to the Government was only Rs. 2518 and therefore when the property was sold, subject to encumbrance or free of encumbrance, the collector should have sold only such portion of the property as would be sufficient to get the amount due to the Government. This aspect was not borne in mind by the authorities who conducted the sale and as a matter the entire property of 3.40 acres was directed to be sold and has been actually sold. Such a sale in our opinion violates the proviso to S.44 which provision was introduced by the Legislature in order to safeguard the interest of the owner of the property, as the sale is a summary sale for the purpose of recovering the amounts due to the Government.
12. We have already referred to the fact that Mr Peter Francis appearing for the 4th respondent herein was not able to bring to our notice any direct decision dealing with the distinction between illegality and Irregularity in the conduct of sale under the Act of 1864. However, the learned counsel made a general statement that whenever there is a violation of the provision imposing an obligation on a Government officer to do a particular thing in a particular manner. the failure to do the same in that manner would constitute an irregularity. On the other hand, when there is a provision prohibiting a Government Officer from doing a thing and if the officer does anything contrary to the prohibition, that will constitute illegality. Even an the application of tins test it must be held that the action of the authorities in selling the property in its entirety, more than what is necessary for recovering the amount due to the Government is one against the prohibition imposed by the proviso to Section 44 of the Act, and therefore, that will certainly constitute an illegality vitiating the sale as a whole. In view of this conclusion of ours, we have no hesitation in holding that the sale conducted by the authorities of the Government under Act 2 of 1864 in the present case is illegal and the appellant herein is entitled to the relief of setting aside the sale.
13. The result is that the appeal is allowed and the Judgment of Ramanujam, J. is set aside and the writ petition filed by the appellant, herein, namely, W. P. No. 2956 of 1972 will stand allowed. There will be no Order as to costs in this appeal.
14. As soon as we Pronounced the judgment, 39r. -Peter Francis, learned counsel for the 4th respondent herein orally requested us to grant a certificate of fitness to appeal to the Supreme Court of India under Article 133 Of the Constitution. Having regard to our conclusion on the admitted facts with reference to Section 36 as well as Section 44 of the Revenue Recovery Act, 1864, though we have considered a substantial question of law of general importance, we are not satisfied that, having regard to the facts admitted to which we have applied Sections 36 and 44 of the Act, this is a cam which in our opinion needs to be decided by the Supreme Court and we accordingly reject the request.
15. Appeal allowed.