1. The petitioner has prayed for issue of a writ of certiorari to quash an order of the Revenue Divisional Officer, Pudukottai, dated 21-6-1969, setting aside a sale held under the Revenue Recovery Act on 12-3-1964 in which the petitioner was the highest bidder. One Chockanathan and Alagar Servai owned the properties which have been sold in revenue auction. The said properties were the subject-matter of a mortgage in favour of the petitioner for a sum of Rs. 800, the mortgage having been executed on 15-12-1952. The suit property was, however, brought to sale under the provisions of the Revenue Recovery Act for the recovery of revenue arrears. In the sale held on 12-3-1964, the petitioner was the highest bidder for Rs. 525 subject to the mortgage in his favour. Subsequent to the sale, neither the owners filed any petition for setting aside the sale either under S. 37-A or under S. 38 of the Act within 30 days.
2. Subsequently, when the proposals for confirmation of sale were pending before the Revenue Divisional Officer, at the instance of the petitioner, remarks were called from the Tahsildar Kulathur. The Tahsildar reported that in the Revenue sale the petitioner is the highest bidder for a sum of Rs. 525; that the entire amount was paid by him into the sub-treasury, Keeranur, on 8-4-1964 and that the sale was not so far confirmed since the sale records were missing. Subsequently, the petitioner himself approached the Revenue Divisional Officer for confirmation of the sale and for grant of patta in his favour. The Tahsildar, Kulathur, was again called upon to report the names of the persons who were responsible for the loss of the records. But the Tahsildar reported that the liability for the loss of records could not be fixed on any individual; that the purchaser has been paying kist and that the land was lying waste without anybody enjoying it, and that in the absence of sale records, it would be safe to order a resale. On receipt of this report, the Revenue Divisional Officer thought that the only way open to him in this case was to set aside the original sale and to order a resale after refunding the sale amount paid, to the purchases. In this view, he set aside the sale held on 12-3-1964, and directed resale.
3. The said order has been challenged in this writ petition by the petitioner mainly on three grounds. Firstly it is contended that when there is no application filed by the defaulters questioning the revenue sale, it is not open to the Revenue Divisional Officer to set aside the sale suo motu nearly after five years from the date of the sale. Secondly, it is contended that even assuming that the Revenue Divisional Officer has suo motu powers to set aside a sale under S. 38 of the Revenue Recovery Act, the power to set aside a sale should be exercised only for reasonable grounds and not for extraneous reasons such as loss of records. Thirdly, it is said that as a result of the sale having been set aside, after a delay of 5 years, the petitioner's mortgage right over the property is lost.
4. I am not inclined to agree with the learned counsel for the petitioner that if the defaulter does not file an application for setting aside the sale within 30 days either under Section 37-A or S. 38 of the Act, the Revenue Divisional Officer has no power to set aside the sale. As a matter of fact, S. 38 of the Act clearly enables the Collector to set aside the sale, if he has reason to think that the sale ought to be set aside notwithstanding that no application has been made or on grounds other than those alleged in the application, if one is filed and rejected, after recording his reasons in writing. Therefore, there is no substance in the contention that the Revenue Divisional Officer has no suo motu powers to set aside the sale.
5. However, the other two contentions urged by the learned counsel for the petitioner have to be accepted as tenable. In this case, a perusal of the file indicates that the only reason for setting aside the sale held on 12-3-1963 by the Revenue Divisional Officer is that the records are missing. Missing of records has not been stated to be a ground for setting aside the sale in the statute. A sale can be set aside for any irregularity in the conduct of the sale or in publication of the proclamation etc. Loss of records after the sale has been held, cannot be a ground at all for setting aside the sale. Loss of files does not indicate that there has been some procedural irregularity in the conduct of the sale or there has been lack of jurisdiction in conducting the revenue sale on the part of the concerned authority. The report of the Tahsildar dated 20-3-1969 contained in the file of the Sub-Collector clearly indicates that from the date of the sale, the purchaser has been paying the kist for the lands sold that the purchaser has paid the full amount as early as on 8-4-1964. Nowhere in his report, has the Tahsildar stated that there has been any irregularity in the conduct of the sale. I do not, therefore, see how the loss of file relating to the sale held years ago can make the sale irregular or invalid. I cannot, therefore, sustain the reason given by the Revenue Divisional Officer for setting aside the sale.
6. In Tej Raj Chordia v. Collector of Srikakulam, 1965-1 Andh WR 118 a Revenue sale was set aside by the Collector on two grounds; first that the bid was too low and secondly that the relevant records were not available. The Court held that the loss of records is an irrelevant and extraneous ground and that missing of records is not a proper ground for setting aside the sale, though the other ground that the bid was so low may be a valid one.
7. In this case, there is no finding by any one either that the bid amount was too low or that the sale has been conducted not in accordance with the procedure contemplated under the Revenue Recovery Act, or that there was any other irregularity in the conduct of the sale. Setting aside the sale after 5 years on the ground that records have been lost cannot at all be sustained.
8. The third contention raised by the learned counsel for the petitioner is equally tenable. Admittedly, he was the mortgagee for a sum of Rs. 800 under the mortgage deed dated 15-12-1952. Since the property was brought to sale on 12-3-1964, well within the period of 12 years from the date of the mortgage, the petitioner thought that instead of enforcing his mortgage right he can puchase the property in court auction. By the sale having been set aside five years after the sale, the petitioner has lost his right to enforce the mortgage. Since he had purchased the property only in the capacity as a mortgagee in the property, he is the person vitally affected by the setting aside of the sale. In view of the fact that the sale has been set aside for extraneous grounds the petitioner is entitled to challenge the same, though the sale in his favour has not been confirmed. In fact, the petitioner attempted to question the order setting aside the sale by filing a suit but that suit came to be dismissed on the ground that the suit was not filed within six months from the date of the order. The petitioner has not slept over the matter, and has been agitating the question ever since the date of the order setting aside the sale. In this view, this writ petition has to be allowed and it is accordingly allowed. The order dated 21-6-1969 passed by the Revenue Divisional Officer is set aside. No costs.
9. Petition allowed.