1. This judgment is being delivered under peculiar circumstances which have been fully explained in our order dated 29th July 1943 on a petition for review of judgment presented by the plaintiff-respondent. We shall recapitulate them briefly here: This appeal was heard by us at great length in January last, a number of questions of law and fact being involved. The case was then set down for judgment on 29th January 1943 [See ('43) 30 A. I. B. 1943 Cal. 361--Ed.]. At the last moment however the parties informed us that they had arrived at a compromise. A petition embodying the terms was put before us and as some of the appellants were minors their guardian, who was also one of the appellants, asked for leave to enter into the compromise on their behalf, submitting that the terms were for their benefit. It may be mentioned that under these terms the appellants were to be given half of the property in suit whereas if the appeal were pressed there was danger of their losing the whole. In these circumstances we, the Court, also considered the terms to be for the benefit of the minors and accordingly granted the leave sought. The result was that while we delivered judgment disposing of all but one of the issues raised in the appeal, we merely mentioned the remaining issue without deciding it, and we made a consent decree in accordance with the terms of the compromise. There the matter rested for some months. Then, suddenly all the appellants but one including the guardian appellant brought a suit on the Original Side of this Court repudiating the compromise and asking that it be set aside. In the verified plaint they stated that they had not been informed of its terms, that they had not authorised them, that they were not for the benefit of the minors and so on. When these allegations were brought to our notice, we examined the record of the appeal and found that we had been misled by an affidavit into believing that the compromise had the authority of the guardian as well as of the other appellants. In the light of the statements in the abovementioned plaint, we had no option but to set aside the so-called consent decree, recall the judgment and remit the parties to the position which they occupied just before judgment had been delivered. We then heard the parties again on the issue left undisposed of in our judgment of 29th January 1943, and set down the case for final judgment. The subsequent events arising out of an application under Order 23, Rule 3, have been dealt with in a separate order of today and need not be repeated. We are now delivering our final judgment in the appeal.
2. This appeal is by the defendants in a suit for a declaration that a certain order made by the Board of Revenue, Bengal, on 13th September 1937 was ultra vires and void. The facts are briefly these: The revenue paying estate bearing touzi No. 655 of the Birbhum Collectorate comprises four separate accounts, viz., Nos. 1, 2 and 3 and the 'ejmali' or residuary account. We are concerned in this case mainly with separate account No. 2 comprising 6 annas odd of the estate. The annual revenue payable in respect of this separate account is Rs. 1491-9-4 in four kists of instalments, namely, Rs. 21-12-2 in respect of the quarter 29th March to 28th June, for which the latest date of payment is 28th June (1st or June kist); Rs. 89-13-3 in respect of the quarter 29th June to 28th September, for which the latest date of payment is 28th September (2nd or September kist); Rs. 624-6-7 in respect of the quarter 29th September to 12th January, for which the latest date of payment is 12th January (3rd or January kist); and Rs. 755-9-4 in respect of the quarter 13th January to 28th March, for which the latest date of payment is 28th March (4th or March kist).
3. We are mainly concerned here with the second kist of the year 1936-37 amounting to Rs. 89-13-3 for which the latest date of payment was 28th September 1936. There are nine cosharers in this separate account who are defendants 1 to 9 in this suit. By a private apportionment amongst themselves defendants 1 and 2 appear to have arranged to pay 4/5ths of the revenue and defendants 4 to 9 the remaining 1/5th. Accordingly defendants 1 and 2 paid their share of the September kist amounting to Rs. 71-12-6. There was also an excess payment of Rupees 1-12-4 made towards the first kist and carried forward to the second. This left Rs. 16-4-5 to be paid by defendants 4 to 9 before 28th September. But there was sent on their behalf a money order of only Rs. 3-14-3 on account of land revenue on 22nd September, so that there resulted an arrear of Rs. 12-6-2. For the realisation of this arrear the separate account was put up to sale under Section 13, Bengal Land Revenue Sales Act, 1859 (Act 11 of 1859) on 8th January 1937. As no bids were forthcoming, the Collector, proceeding under Section 14, stopped the sale and declared that the entire estate would be sold for arrears of revenue at a future date, unless the other recorded sharer or sharers should within ten days purchase the share in arrear by paying to Government the whole arrear due from the share. On 11th January 1937, the plaintiff who was a co-sharer in the zemindary (in the residuary account) asked the Collector for permission to purchase the aforesaid separate account No. 2 by paying the arrear due therefrom. This was allowed and accordingly on 14th January 1937 his agent paid in Rs. 12-6-2. On 19th January 1937, the Collector declared him the purchaser of the defaulting share. No appeal having been preferred against the sale within the prescribed 60 days, it was confirmed, and on 6th April 1937 a sale certificate was issued to the plaintiff under Section 28 of the Act. On 7th April 1937, the Collector ordered delivery of possession to him under Section 29. This last order has not yet, however, been carried out, because before it could be carried out, the defendants preferred an appeal to the Commissioner on 1st May 1937 praying that the sale be set aside. The appeal was out of time, and as the appellants were unable to prove that they were entitled to any extension of time on the ground of fraud, the appeal was rejected on 11th May 1937. On 25th May 1937 they presented a petition to the Board of Revenue against the Commissioner's order. The Board called for the records and a report from the Commissioner, and on 13th September 1937 after perusing both set aside the sale. It is against this order of the Board that the present suit is mainly directed. The Board's order, so far as it is material, was in the following terms:
On the merits of the ease the Board has no doubt that there was hardship which would have justified the Commissioner in recommending the Board to set aside the sale. The separate account was put up for sale on 8th January 1937 for arrears of Rs. 12-6-2 due for the September kist, On 14th January 1937 it was sold to a cosharer under Section 14. On the same day (i.e. 22nd September 1936) that Rs. 3-14-3 was sent as revenue by money order instead of the proper amount of the September kist, viz., Rs. 16-0-9, Rs. 15-7-0 was paid as case. On 8th January 1937, the defaulting proprietors who are now the petitioners paid Rs. 711-1-7 for the January kist and again in March they paid Rs. 842 for the March kist. It is, therefore, obvious that they did not know of the default until March.
The Commissioner did not make the recommendation to the Board under Section 26, because the application to set aside the sale under Section 25 was filed more than 60 days after the sale. It is not certain that the Commissioner had power to extend the time for an appeal under Section 25, though according to Note 12, p. 57 of the Sale Manual, 1932, he could do so where fraud is proved. If he can do so in case of fraud he ought to be able to do so in case of manifest hardship.
This seems to the Board to be a case where the same consideration, that moved the Board in its Resolution No. 1851--sales of 8th May 1918 (p. 122 of the Sale Manual) to remand the case to the Commissioner, can be applied. It has always been the declared policy of Government to administer the sale law leniently, and the Board holds that all final Courts including revenue Courts have an inherent power to make such orders as may be necessary for the sake of justice. Under Section 4, Regn. 1 of 1829, the Board of Revenue has a power to control over the proceedings of Commissioners. There is always a stronger case for exercising this power when the order has been to confirm a sale than when the order has been one setting aside a sale.
The Board therefore overrules the objections of the auction-purchaser which are based not on the merits of the case but on absence of jurisdiction because the order of a Commissioner under Section 25 is final. The sale is set aside.
4. The plaint after setting out the facts asks: (1) that the Board's order be declared ultra vires, void and unenforceable and set aside; (2) that the plaintiff be declared entitled to get possession of the property in suit under Section 29, Bengal Land Revenue Sales Act; (3) that such other or modified reliefs as the plaintiff may be entitled to, be granted to him, besides costs and interest.
5. The Subordinate Judge has decreed the suit, and hence this appeal by the defendants. The first point taken before us is that the suit is not maintainable, (1) without a prayer for recovery of possession as consequential relief; (2) without the addition of the Collector as a party. Amongst the grounds of appeal to this Court it was stated that the Province of Bengal should have been a party but this was modified during argument. So far as consequential relief is concerned, the argument is that this is in effect a suit for a declaration of title under Section 42, Specific Belief Act 1877, that the real relief which the plaintiff needs is possession of the disputed property and that under the aforesaid Section 42, the Court cannot make a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Therefore, it is said, unless he can show that he was unable to ask in his plaint for possession of the disputed property, he cannot get the declaration he seeks. There is an apparent conflict of authority on the question whether Section 42, Specific Relief Act, is exhaustive of the cases in which Courts in India can make decrees merely declaratory. The appellants rely on the observation of the Privy Council in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh. ('16) 3 A.I.R. 1916 P.C. 78 where their Lordships say:
The Court's power to make a declaration withotet more is derived from Section 42, Specific Relief Act, and regard must, therefore, be had to its precise terms.
6. Before the passing of the Specific Relief Act, the provision as to declaratory decrees was contained in Section 15, Civil P.C. of 1859 and their Lordships made a similar observation in Moothoo Vijia Ragoonadah Kolandapuree Natachiar v. Dorasinga Tevar ('75) 2 I.A. 169 with reference to that section: in effect they said that the powers of the Courts in India to make a merely declaratory decree rested upon the aforesaid Section 15. Pollock and Mulla in their well-known work express a similar opinion:
The correct view, it is submitted, is that Section 42 is exhaustive of the cases in which a decree merely declaratory can be made and that the Courts have no power to make such a decree independently of that section.
7. The plaintiff-respondent, on the other hand, points to the observations of the Privy Council in Fischer v. Secretary of State ('99) 22 Mad. 270: 26 I.A. 16 (P.C.):
Now, in the first place it is at least open to doubt whether the present suit is within the purview of Section 42, Specific Relief Act. It is, in substance, a suit to have the true construction of a statute declared and to have an act done in contravention of the statute, rightly understood, pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind.
8. These observations appear to imply that Section 42 is not exhaustive. We need not cite other authorities in support of either view. If we may say so, the several observations which we have quoted above are not in real conflict. What exactly is meant by the expression, 'a declaration without more,' 'a merely declaratory decree,' or 'a decree merely declaratory?' Let us remember that the act or order, sought to be pronounced null and void in Fischer v. Secretary of State ('99) 22 Mad. 270: 26 I.A. 16 (P.C.) as in this suit, was one which deprived the plaintiff of certain present rights of property. In Fischer v. Secretary of State ('99) 22 Mad. 270: 26 I.A. 16 (P.C.), the order of the Governor in Council by cancelling the separate registration of the property which had been transferred to the plaintiff robbed the transfer of all legal force and effect under a local Regulation. In the present suit, similarly, the order of the Board of Revenue by setting aside the sale to the plaintiff, deprived him of his title and his right to get immediate possession of the property from the Collector. In each case, therefore, the plaintiff stood deprived of certain present rights of property, and the declaration of the offending order as null and void restored or would restore those rights. We venture to suggest that a declaration of this kind is not 'a merely declaratory decree' since it has the effect of giving relief besides serving to define rights. On the other hand, the declarations provided for in the illustrations under Section 42, Specific Relief Act, may properly be said to be 'merely declaratory decrees.' Let us examine these illustrations briefly.
9. Illustration (a): Here, A is not deprived of any of his present rights in his land by reason of the claim by his neighbours. Therefore, there is no occasion for administering any present relief and the declaration merely defines A's rights. Illustration (b): Here again, at the time of the suit B, o and D do not stand deprived of any of their present rights in the property and the declaration merely defines their rights and the future rights of their children. Illustration (c): Here, the property has not even accrued at the time of the suit and the declaration merely defines future rights. Illustration (d): Here again, the declaration merely defines C's future rights. Illustration (e): This is similar to illustration (d), and the declaration merely defines the presumptive heir's future rights in the event of his surviving the widow. Illustrations (f) and (h) do not relate to rights of property. Illustration (g): Here, A is obviously not deprived of any of his present rights by B's demand; the declaration merely defines A's rights.
10. It would, therefore, seem that the expressions, 'merely declaratory decree' and 'declaration without more' used in the Privy Council judgments in Moothoo Vijia Ragoonadah Kolandapuree Natachiar v. Dorasinga Tevar ('75) 2 I.A. 169 and Sheoparsan Singh v. Ramnandan Prasad Narayan Singh. ('16) 3 A.I.R. 1916 P.C. 78 refer to a declaration which merely serves to define rights, present or future, without giving present relief. The power of the Courts in India to make merely declaratory decrees in this sense is, under the above decisions, governed entirely by Section 42, Specific Relief Act. But where a decree has the effect of giving present relief as well, the power to make it will be governed by the general provisions of the Code of Civil Procedure, e.g., Section 9 or Order 7, Rule 7 of the Code and not by Section 42, Specific Relief Act. Such a view would be consistent not only with their Lordships' observations fin the above two cases but also in Fischer v. Secretary of State ('99) 22 Mad. 270: 26 I.A. 16 (P.C.). On this view, the present suit would, not be governed by Section 42, Specific Relief Act.
11. But, even assuming that the Specific Relief Act applies to such a suit as this, let us see what is the plaintiff's claim and who are the parties concerned. The plaintiff is undoubtedly a person who claims to be entitled to certain rights as to property, namely, the right to own and possess separate account No. 2 of touzi No. 655 by virtue of his purchase on 14th January 1937. The defendants, who are the recorded owners and are in possession of that share of the estate, deny and are interested to deny his title. The Collector on the other hand, has not denied, nor is he interested to deny the plaintiff's title, although he could do nothing to assist the plaintiff after the Board had set aside the sale. In terms of Section 42, therefore, the plaintiff may institute a suit against the defendants, but not against the Collector, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such a suit ask for any further relief. We now come to the proviso:
Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
12. In considering this proviso with reference to this case, we have to bear in mind that long before the Board's order of September 1937, the Collector had already passed an order for delivery of possession to the plaintiff. Once the Board's order is pronounced ultra vires and the plaintiff's unimpaired title declared, the Collector's order of 7th April 1937 would revive, and it would be his statutory duty to proceed to give effect to it under Section 14 and Section 29, Bengal Land Revenue Sales Act, 1859. The plaintiff was not able to seek further relief in his plaint for the simple reason that he needed no more. The annulling of the Board's order would give him all that he wanted. The circumstances are very similar to those in Fischer v. Secretary of State ('99) 22 Mad. 270: 26 I.A. 16 (P.C.), where the Privy Council made a declaratory decree, holding that no further relief was required. The proviso to Section 42, Specific Relief Act, is no more a bar to a declaration of the plaintiff's title in the present suit than it was in that suit.
13. We have already indicated that the plaintiff was right in not including the Collector amongst the defendants in this suit. A more difficult question is whether the Board of Revenue should have been made a party on the ground that the order impugned was passed by the Board. Now, the Board of Revenue cannot be sued in its official capacity either in the name of the Board itself or in any other name, differing in this respect from the Provincial Government, which can under the new constitution be sued in the name of the Province and which could under the old constitution be sued in the name of the Secretary of State for India in Council. In Fischer v. Secretary of State ('99) 22 Mad. 270: 26 I.A. 16 (P.C.), the impugned order was that of the Madras Government, and the Secretary of State for India in Council was impleaded as defendant. The only way of impleading the Board of Revenue in the present suit would have been by impleading the member of the Board (the Board consists normally of only one member) in his individual capacity and in his own name. In China Mutual Steam Navigation Co. v. MacLay (1918) 1 K.B. 33, the Shipping Controller was impleaded as defendant by name and in his personal capacity in an action for a declaration implying that a certain order made by him under statutory regulations was ultra vires. The declaration was granted, and incidentally the question was raised whether the Shipping Controller had been rightly impleaded. The Court quoted with approval a statement of the law by the Attorney-General in Raleigh v. Goschen (1898) 1 Ch. 73 and went on to say:
That statement of the law plainly contemplates that the officer of State whose conduct is in question would be the defendant to the action.
14. Similarly, in Bombay and Persia Steam Navigation Co. v. MacLay (1920) 3 K.B. 402, the Court observed:
No action can be brought against the Shipping Controller as such, as an action can be brought against the Secretary of State for India in Council. The action must be brought against Sir Joseph MacLay, if at all, as an individual. It has long been established that if an official of the State does something which if done by any one else would be a tort, and there is no law authorising him, in virtue of his office, to do that particular thing, he must notwithstanding his official position, answer for it in his own name.
15. So, too, in this case the only way of bringing in the Board of Revenue would have been to make the particular member concerned a party defendant in his personal capacity. And it must be owned that there is no statutory provision protecting him from suit when he acts without jurisdiction even in good faith. It is not uncommon to find such provisions in modern statutes, but none occurs in the Bengal Land Revenue Sales Act, 1859 or in the Bengal Board of Revenue Act, 1913. The Judicial Officers' Protection Act, 1850 applies to Collectors and other persons acting judicially. Can it be said that the Board of Revenue was acting judicially in annulling the sale on the ground of hardship? The line between judicial and administrative functions is notoriously difficult to draw. In Martineau and Sons Ltd. v. City of Montreal (1932) 1932 A.C. 113 at pp. 121 and 122, the Privy Council commented on this difficulty, and found it necessary to go into the history of the particular function to decide whether it was judicial or administrative. Following a like course here, what do we find? The function of annulling sales on the ground of hardship which is now embodied in Section 26, Bengal Land Revenue Sales Act, 1859, was vested from 1841 until 1914 in the Local Government, which can hardly be termed a judicial body. The function was obviously regarded as a matter of policy. In 1914 by the Decentralisation Act of that year the function was transferred to the Board of Revenue. The pedigree of the function does not, therefore, indicate that it is of a judicial nature. To remove any doubt or difficulty on this score the Legislature sometimes expressly provides that authorities exercising certain specified functions shall be deemed to be acting judicially within the meaning of the Judicial Officers' Protection Act, 1850, e.g., see Section 48, Bengal Public Demands Recovery Act, 3 of 1913 or Section 71, Civil P.C., 1908. There is no such provision in the Bengal Land Revenue Sales Act or the Bengal Board of Revenue Act. This may or may not be an omission, but the result appears to be that the member who constitutes the Board of Revenue is not protected from suit in cases like the present. The question, however, is not whether he may, but whether he must be made a party to the suit. He is no longer in office. The plaintiff does not want any relief against him personally. His good faith is not disputed. His interests are in no way affected by the result of this litigation, and it can hardly be said that his presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon the questions involved in the suit. All the grounds upon which he acted in making the impugned order are recorded in the order itself and no further material that he can supply is required for the decision of the suit. The persons benefiting by the order have all been made parties. We notice that in the Privy Council case Baijnath Ram Goenka v. Nand Kumar Singh ('13) 40 Cal. 552, a declaration pronouncing a certain order of the Commissioner to be ultra vires was made, although the Commissioner was not a party. We do not, therefore, think that the member of the Board of Revenue concerned is a necessary party in the present case.
16. The second point urged before us on behalf of the appellants is that the Board's order was intra vires. The relevant sections are Section 2 of Act 7 of 1868 and Section 26 of Act 11 of 1859. Section 2 of the Act of 1868 provides that it shall be lawful for the Commissioner of Revenue to receive an appeal against any sale made under the Act of 1859, provided that the appeal be preferred within a prescribed time. Section 26 of the Act of 1859 provides that it shall be competent to the Commissioner of Revenue on the ground of hardship or injustice to suspend the passing of final orders in any case of appeal from a sale and to represent the case to the Board of Revenue who may annul the sale and cause the estate or share of the estate to be restored to the proprietor on such conditions as may appear equitable and proper. It was decided by this Court in Gossain Chutturbhooj v. Ishri Mul ('94) 21 Cal. 844 that a sale under Section 14 of the Act of 1859--a 'private sale' as it has been called --is as much a sale for arrears of revenue under the Act as a 'public sale' such as that referred to in Section 22. Therefore, Section 2 of the Act of 1868 and Section 26 of the Act of 1859 which we have summarised above, apply to a sale under Section 14 of the Act as much as to public sales. As already mentioned, the sale to the plaintiff which was under Section 14 took place on 14th January 1937. An appeal to the Commissioner was preferred on 1st May 1987, i.e., long after the 60th day from the date of sale prescribed in Section 26, It was rejected by the Commissioner on 11th May 1937 as time barred. Under Section 2 of the Act of 1868, that order was final. The Commissioner did not suspend the passing of final orders in the appeal nor did he represent the case to the Board. All these facts are common ground, so that there can be no doubt that the conditions for the exercise of the Board's powers under Section 26 did not exist. But it is contended that besides the power conferred by Section 26, the Board has an inherent power to make such orders as may be necessary for the ends of justice. Undoubtedly, the Courts, whether civil or other than civil Courts, have certain inherent powers for this purpose. But in the first place, for the reasons already given, we do not think that the Board was acting as a Court when setting aside the sale in question. And, in the second place, even if it was acting as such, inherent powers cannot be exercised in matters for which the statute has made express provision and, in a manner calculated to defeat the statutory provision. As we have already seen, the Act of 1859 has made express provision for cases of hardship. Lest the power of annulling sales on this ground should be exercised improperly, it has been kept, so to speak, under double lock. Unless the Commissioner recommends and the Board concurs, a sale cannot be set aside merely because of hardship or injustice. Between 1841 and 1914, three separate authorities had to concur; namely, the Commissioner, the Board and the Local Government, the power being then exercisable by the Local Government; now, the power is vested in the Board, but a representation from the Commissioner is still required. The inherent power claimed by the Board to act without such a representation from the Commissioner and indeed after he has passed final orders in the appeal before him would be inconsistent with the statute.
17. We have not thought it necessary to rely on the provisions of Section 27 in this connexion, because, as the section is worded, it refers to sales of which the purchase money has been paid up 'as prescribed in Section 23.' The sale with which we are concerned was not a sale of that kind: here the purchase-money was paid up as prescribed in Section 14. It is therefore not easy to say when the present sale became 'final and conclusive' in the sense in which the expression is used in Section 27. The Collector purported to 'confirm' it on 1st April 1937, whatever the precise meaning and effect of the order may be.
18. We have assumed in the foregoing discussions that a private sale under Section 14 of the Act of 1859 is as much a sale for arrears of revenue as a public sale such as that referred to in Section 22. This is in accordance with the opinion of the majority in Gossain Chutturbhooj v. Ishri Mul ('94) 21 Cal. 844. But even if the assumption should be wrong what would be the result? Under the terms of Section 14, upon the completion of the purchase the Collector has to give the purchaser such certificate and delivery of possession as are provided for in Sections 28 and 29. Section 28 provides that immediately upon a sale becoming final and conclusive, the Collector is to give the purchaser a certificate of title in the prescribed form. The prescribed form runs:
I hereby certify that A.B. has purchased, under Act No. 11 of 1859, the mahal (or share of a mahal) specified below, standing in the touzi of the district of and that his purchase took effect on the day of (being the day after that fixed for last day of payment).
19. Such a certificate was given to the plaintiffs in the present case. The section further provides that the said certificate shall be deemed in any Court of Justice sufficient evidence of the title to the estate or share of an estate sold being vested in the person or persons named from the date specified. There is no provision in the Act which authorises the Board to divest the purchaser of his title after it has vested in him, such powers as the Board possesses being exercisable, at a previous stage. We find it impossible to uphold a claim of implied or inherent power to disturb a vested title. The appellants next invoke the aid of Section 4 of Regn. 1 of 1829 which runs:
The Commissioners shall, until otherwise specifically provided for by law, possess and exercise within the several districts comprised in their respective divisions the powers and authority now vested in the Boards of Revenue and Courts of Wards, subject to the control and direction of a Sadar or Head Board, to be ordinarily stationed at the Presidency, unless otherwise directed by the Provincial Government, and to such restrictions and provisions as the Provincial Government or the said Sadar Board, with its authority or sanction, may prescribe.
20. If the Regulation had stated that the Commissioners must exercise all the powers that may at any time be conferred upon them by any law subject to the control of the Board, the appellants would have been on stronger ground. They might then have argued with some degree of plausibility that the Board's control was operative even in respect of orders passed by the Commissioners under Act 11 of 1859. But even then the exact degree of control would have been matter for controversy. As it is, the effect of the Regulation is to make the Board's control operative in respect of the powers which the Commissioners inherited from the Boards under the Regulation only 'until otherwise specifically provided by law.' Amongst the powers so inherited was the power to annul sales for excessive severity which appears to have been vested in the Boards of Revenue by Regn. 11 of 1822. The position between 1829 and 1841 appears, therefore, to have been that this power passed to the Commissioner, subject to control by the Board. Then came Act 12 of 1841 which vested the power in the Local Government in the following terms:
And it is hereby enacted, that it shall be competent to the Commissioner of Revenue on the ground of hardship or injustice to suspend the passing of final orders in any case of appeal from a sale and to represent the case to the Sudder Board of Revenue, who, if they see cause, may recommend to the Local Government to annul the sale; and the Local Government in any such case, may annul the sale and cause the estate to be restored to the proprietor on such conditions as may appear equitable and proper.
21. This was repeated as Section 18 in Act 18 of 1845 and then as Section 26 in Act 11 of 1859. In 1914, the Local Government was eliminated from the section. The result of all this legislation subsequent to 1829 is to make specific provision for eases of hardship defining the precise function of each of the authorities concerned; and the Board can now exercise its powers only in accordance with the provision so made. It is noteworthy that the Act of 1859 contains no provision giving the Board a general power of revising the Commissioner's orders, such as is contained for another purpose in Section 53, Bengal Public Demands Recovery Act, 1913. Our conclusion on this point is therefore the same as that reached in 1883 and again in 1885 by the Board of Revenue itself and recorded in the Revenue Sale Manual under Section 26 of the Act thus:
The competency of the Board and Government to take action for annulling a sale under this section depends on the Commissioner having suspended the passing of final orders in any case of appeal before him, and having represented the case to the Board. Such a representation can only be made if an appeal against the sale is pending before the Commissioner.
22. If the Commissioner does not think fit to exercise his power under this section and dismisses the appeal for the annulment of the sale of an estate, the sale becomes final and neither the Board nor the Government have any jurisdiction to interfere with it.
23. We are therefore of opinion that the Board's order of 13th September 1937, was without jurisdiction and ultra vires. We have now to consider whether the jurisdiction of the civil Court to pronounce the Board's order ultra vires is itself excluded by Section 6, Bengal Board of Revenue Act, 1913. This section runs:
Any person considering himself aggrieved by any order of the Board of Revenue may apply to the Board for a review of the same; and, if the Board considers there are sufficient reasons for so doing, it may review the order and pass such further order as it thinks fit.
24. Every application under Sub-section (1) for a review of any order must be made within a period of three months from the date of the order;
Provided that the Board may, in its discretion, in any case extend such period, if sufficient reasons be shown for so doing.
25. It will be noticed that the section does not say that the Board's order is in any sense final save as provided in the section itself. Therefore the powers of the civil Court to declare it ultra vires where the Board acts without jurisdiction remain unaffected. The third point raised on behalf of the appellants is that even if the Board's order is invalid, so too is the sale by the Collector. This raises a preliminary question as to the bearing of Section 33 on a sale under Section 14 such as the one made to the plaintiff. Section 33 provides that no sale for arrears of revenue shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act and then 'only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of'; there follow certain other conditions not material here. Now, this is not a suit under Section 33 and the appellants are not plaintiffs; can they then ask the Court to pronounce the sale to the plaintiff invalid? In the case that we have already cited, Gossain Chutturbhooj v. Ishri Mul ('94) 21 Cal. 844, it was held that Section 33 of the Act applies to sales under Section 14 as to other sales, since the prohibition, 'no sale for arrears of revenue shall be annulled by a Court of justice . . . .' is all-embracing. Again it has been held in a series of cases which it is needless to cite, that Section 33 does not affect the jurisdiction of the civil Court to annul a sale where there were in fact no arrears, such a sale not being a sale for arrears at all and therefore not hit by the aforesaid prohibition. It follows that a sale held under Section 14 in a case where there were arrears of revenue, as in the present case there admittedly were, can only be annulled by a civil Court under the conditions prescribed in Section 33. One of these conditions necessarily implies that the annulment must be at the instance of the plaintiff; he must bring a suit for the purpose upon the grounds and subject to the conditions mentioned in the section. As we read the provision, such a sale cannot be annulled at the instance of a defendant in a collateral action or proceeding, assuming, of course, that it was a sale for real arrears of revenue. The defendants therefore appear to be debarred from attacking the sale in the present suit. But apart from this difficulty, their attack fails on the merits. They urge two main grounds. In the first place, it is argued that Section 14 of Act 11 of 1859 under which the Collector proceeded to sell the property to the plaintiff applies only when the highest bid at the previous sale of the separate account under Section 13 is insufficient to clear off the arrears and has no application when there are no bids at all, which was the case here. Section 14 runs:
If in any case of a sale held according to the provisions of the last preceding section, the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the Collector, etc.
26. In this connexion, our attention has been invited to Section 58 of the Act, which draws a distinction between a case of no bids and one of insufficient bids. The argument is that when there are no bids at all at the sale of a separate account held under Section 13, the Collector cannot follow the course laid down in Section 14, but may buy in the separate account for the Provincial Government for one rupee as provided in part 1 of Section 58. Section 58 must be read, it is said, along with the definition of an estate in Section 1 of Act 7 of 1868. Section 58 of the Act of 1859 runs:
When an estate is put up for sale under this Act for the recovery of arrears of revenue due thereon, if there be no bid, the Collector or other officer as aforesaid may purchase the estate on account of the Government for one rupee, or if the highest bid be insufficient to cover the said arrears and those subsequently accruing up to the date of sale, the Collector or other officer as aforesaid may take or purchase the estate on account of the Government at the highest amount bid, in both of which cases the Government shall acquire the property subject to the provisions of this Act.
27. The definition clause in Section 1 of Act 7 of 1868 runs:
In this Act, and in Act 11 of 1859, the word 'estate' means any land or share in land subject to the payment to Government of an annual sum in respect of which the name of a proprietor is entered on the register known as the general register of all revenue-paying estates, or in respect of which a separate account may, in pursuance of Section 10 or Section 11 of the said Act 11 of 1859, have been opened.
28. Now, it is true that this definition occurs in the Act of 1868 without the usual qualification 'unless there is something repugnant in the context or subject,' but it has been held in Knightsbridge Estates Trust Ltd. v. Byrne (1940) 1940 A.C. 613 that little weight is to be attributed to such an omission, because some such words are to be implied in all statutes where the expressions which are interpreted by a definition clause are used in a number of sections with meanings sometimes of a wide and sometimes of an obviously limited character (p. 621 ibid.) What is the result in the present case? It is obvious that if in Section 58 we read 'estate' as including a share of an 'estate' in respect of which a separate account has been opened, part 2 of the section would contradict Section 14. Clearly then, it cannot be so read in part 2 of Section 58; can it be so read in part 1? It seems an unnatural construction that in the same section, consisting of two complementary parts, the same word should have an extended sense in one part and a limited sense in the other part. Again, the result of holding that part 1 applies to separate accounts would be this: that when there are no bids at the sale of a separate account, the separate account may be purchased for the Government for Re. 1, but when the highest bid is insufficient to clear off the arrears, the Collector must put up the entire estate to sale at a future date under Section 14, unless within ten days the other sharers purchase the share in arrear. There would be no logic in the two halves of this ill-assorted combination of clauses: why should the Government have the option of purchase in the one case and the cosharers in the other? Why, again, should the price be Re. 1 in the former case and the amount of the arrear in the latter'? No intelligible explanation can be suggested. We, therefore, think that the most reasonable construction is to regard Section 58 as applicable only to integral estates in spite of the definition in Act 7 of 1868. That definition may apply to certain sections of Act 11 of 1859 but not to all. We also consider that the procedure prescribed in Section 14 applies just as much when there are no bids and the sale proves wholly abortive as when the bids are insufficient and the sale proves partially abortive. The words are: 'If in any case. . . . . .the highest offer. . . .shall not equal the amount of arrear.' Without any straining of language, this may well be held to cover all cases except those where the highest offer equals (or exceeds) the amount of the arrear; it would, therefore, cover the case of no bids as well as of low bids. It is interesting to observe that in Mahomed Jan v. Ganga Bishun Singh ('11) 38 Cal. 537, which went up to the Privy Council, the Collector followed the procedure of Section 14 when no bids were forthcoming and the plaintiff Mahomed Jan was allowed to purchase the share in arrear as in the present case. The point now taken was not raised in that case, but in stating the facts their Lord-ships of the Judicial Committee said:
On 17th September 1901, the plaintiff (as permitted by Section 14 already referred to) paid the arrears due, and was declared the purchaser of the ijmali kalam.
29. We may infer from this that their Lordships considered that Section 14 permitted such a purchase when there were no bids. Although, as we have said, the point was not argued, one of their Lordships was aware of it, as will be seen from his judgment in Gossain Chutturbhooj v. Ishri Mul ('94) 21 Cal. 844 at pp. 851-852. For all these reasons, we must hold against the appellants on the construction of Section 14.
30. The second ground on which the sale by the Collector is impeached is that the plaintiff did not pay the arrear due from the share within ten days. It will be remembered that the arrear due was Rs. 12-6-2 on account of the September kist; but when this sum was paid in on behalf of the plaintiff, the chalan presented to the Touzi Department described the 'period for which paid' as 'January 1937.' (vide Ex. A). The relevant entry in the touzi ledger also shows the 'year and kist noted in the chalan' as 'January 1937.' P.W. 2 Kiran Chandra Sarkar, who made the payment states that he wrote 'January 1937' in the chalan by mistake. It is contended for the appellants that as the plaintiff did not pay the September arrears, he did not complete the purchase as required by Section 14 of Act 11 of 1859 and that, therefore, the Collector had no jurisdiction to issue the sale certificate or to order delivery of possession to him. Before examining this contention, we may dispose of a preliminary point relating to the chalans at once: we shall ignore the plaintiff's own copy of the chalan (Ex. 4) which purports to show that the money paid in was on account of the arrears of the September kist of 1936 and we shall proceed on the defendants' document (Ex. A) which shows that the period for which the payment was made was 'January 1937.' Exhibit 4 bears signs of having been tampered with--no matter when or by whom. We, therefore, place no reliance on it, while Ex. A is a certified copy of the chalan kept in the Collectorate and, therefore, above suspicion. We have in fact compared Ex. A with the original. We start then with the fact that the money was paid in as stated in Ex. A. Now, Ex. A shows not only that the period for which it was paid was 'January 1937' but also that the payment was on account of arrears, the word 'arrear' being clearly entered in the chalan. The Bengal Sale Law Manual prescribes a special procedure for payment of arrears and one of the rules lays down that the clerk in the Arrear Collection Department to whom the chalan is first presented in triplicate must stamp the word 'arrear' across each copy. Prom the occurrence of this word in Ex. A, therefore, we may safely conclude that the payment was on account of arrears. Now, what could be the meaning of saying that the payment was for the arrears for the period 'January 1937?' We have to remember that the payment was made on 14th January 1937, so, obviously, it was towards arrears which had accrued before that date. The reference may, therefore, have been either (1) to the arrears in respect of the current demand of the quarter ending 12th January 1937, or (2) to the arrear demand in the accounts of the quarter ending 12th January 1937. These are the only two meanings which it is possible to give to the chalan entry. Now, the first of the two meanings is ruled out by the fact that there were in fact no arrears in respect of the current demand of the quarter ending 12th January 1937, in fact, the dues of that quarter were over-paid and there was a small excess of four annas four pies at the credit of the land revenue account of this particular share of the estate.
31. The second meaning, on the other hand, is confirmed 'by several circumstances (1) that there was an arrear of Rs. 12-6-2 which accrued in the previous quarter and which appeared under the head 'arrear' in the accounts of the quarter ending 12th January 1937; (2) that the chalan was also for precisely the same sum, namely, Rs. 12-6-2; (3) that on 11th January 1937, the plaintiff had sought the Collector's permission to pay this particular arrear and had been allowed to do so; (4) that on 19th January 1937, the Collector treated the payment as having been made on account of this particular arrear. Undoubtedly, if Kiran Chandra Sarkar when making the payment had stated that it was for the arrears of the September kist of 1936, there would have been no ambiguity; but his mistake has made no material difference. The arrear in question having been paid on 14th January 1937, the plaintiff must be held to have completed the purchase as required by Section 14, and the Collector was, therefore, justified in issuing a sale certificate and ordering delivery of possession.
32. The appellants have also alleged certain minor irregularities in connexion with the sale to the plaintiff. This part of the case has been fully examined by the Subordinate Judge and we agree with him that the Collector's proceedings were in order. Finally, the appellants contend that since the making of a declaration under Section 42, Specific Relief Act, is in the discretion of the Court, that discretion ought to be exercised against the plaintiff in the particular circumstances of this case. They represent (1) that the sale to the plaintiff was brought about by collusion between the plaintiff and one Manmatha Sinha, the then Naib of defendants 4 to 9; (2) that the case is one of grave and manifest hardship, inasmuch as for a trifling arrear of Rs. 12 odd, the appellants, some of whom are minors, have lost valuable property estimated to yield a net annual profit of Rs. 5500, and the plaintiff has gained what they have lost. For the reasons already mentioned, we doubt whether the declaration sought in this suit is under Section 42, Specific Relief Act, but assuming that it is under that section let us examine the allegations. First, as to collusion. The evidence on this point, as correctly observed by the Subordinate Judge, is scanty and the defendants' story discrepant. The case which they made in their appeal to the Commissioner was as follows:
That Monmotha Sinha is an employee of appellants 4 to 9 and it was his duty to send revenue and to write the Revenue Money Order form and he used to write the same on their behalf, who are residents of the district of Murshidabad and three of them are minors and the other three have just attained majority. That the said Monmotha Sinha is a disciple of auction purchasers' relative and officer Satya Pado Mukherjee. That this time fraudulently and collusively the said Monmotha Sinha instead of writing Rs. 16-0-9 pies for the September kist wrote on the Revenue Money Order form Rs. 3-14-3 pies and sent the money order form to the gomosta of the estate in Jagai in thana Muraroi, district Birbhum, who remitted the said sum to the Collectorate in utter ignorance of the real state of things, accounts remaining with Monmotha Sinha.' This was on 30th April 1937. After the Commissioner had dismissed, the appeal, they filed a suit for the setting aside of the sale in the Munsif's Court at Rampurhat on 28th May 1937. They made a similar case there, that there had been collusion between Satya Pada Mukherjee and Monmotha Sinha. The ease they make now is however different. What they say in the written statement and what they seek to prove now is collusion between one Sasadhar and Monmotha Sinha. The evidence is very meagre. D.W. 5 claims to have seen these two persons together on two separate occasions. That is all. In what way Sasadhar influenced Monmotha Sinha does not appear. Sasadhar who has been examined on the side of the plaintiff denies his alleged visits and indeed denies all knowledge of Monmotha Sinha.
33. We agree with the Subordinate Judge that the story of collusion has not been proved. What happened in this case can be easily explained without assuming any collusion or fraud. The defendants are nine cosharers in the same separate account. It appears from their plaint filed in the Rampurhat suit that they used to remit their shares of the land revenue in three groups. Defendant 1 remitted, his own share plus a part of defendant 3's share; so did defendant 2 and so too defendants 4 to 9. Thus normally they made 6 different remittances for the demand of each kist. As an example we may take the June kist of 1936. The total current land revenue demand for this kist is Rs. 21-13-3. This was remitted by six different money orders of Rs. 3-14-3, Rs. 2-6-3, Rs. 0-14-0, Rs. 7-12-0, Rs. 7-12-0 and Re. 0-14-0 resulting in a small over-payment. There does not seem to have been any coordinating or supervising agency. Some of the defendants live in the Birbhum district, some in Murshidabad, others in Rajshahi. They have apparently no agents at Suri, the headquarters of Birbhum district, where payments have to be made and where revenue sales take place. With so many separate remittances, the chances of an accidental underpayment, ought not to have been ignored. In the present case there was such an accident: Monmotha Sinha an old and trusted officer of defendants 4 to 9, in writing out the money order for the September kist entered therein their share of the June demand, namely, Rs. 3-14-3 instead of the September demand, namely, Rs. 16-0-9, a clerical error, which even a person acting in perfectly good faith might have made. The actual remittance was apparently made by one Anes Mahammad according to the entries in the money order and without any independent check. This resulted in an under-payment which there was no one to detect and to report in time and so the defendants remained in ignorance of what had happened, the more so because the Collector's office accepted without any comment the dues of the succeeding kists. No one can fail to sympathise with them in the disastrous consequences of this accidental and trifling default. But at the same time we cannot say that the plaintiff has been guilty of any sharp practice. He had to make good the default himself under Section 14 of the Act of 1859, otherwise his own separate account also would have been exposed to sale, but having paid the arrear in order to save his own share of the estate he now finds himself the fortunate owner of the defendants' share as well, because Section 14 gives him that right. The defendants did not appeal to the Commissioner in time and the suit which they brought in the Rampurhat Court was subsequently withdrawn. There has thus been lack of vigilance as well as accidental error. Three of the defendants are minors and two are probably pardanashin ladies. The case is undoubtedly one of great hardship on the one side and of unmerited, though not unlawful, gain on the other. In our anxiety to rescue the defendants from the harshness of the law, not unaided by their own negligence, we encouraged the parties to seek a solution by compromise. The compromise originally put before the Court has failed, the defendants themselves having repudiated it. The application made before us yesterday for an order under Order 23, Rule 3, Civil P.C., alleging an earlier compromise more favourable to the appellants was withdrawn while we were engaged this morning in investigating the facts alleged. An attempt was made to revive the application in the afternoon, but it failed. The result now is that we cannot find any good reason for withholding from the plaintiff the declaration for which he asks. No such conduct on his part has been proved as would disentitle him to the relief which he claims. The facts of the present case may suggest the necessity for an amendment of the Sale Law, but that is a different matter. We have no option but to dismiss this appeal but in all circumstances we order that the parties do bear their own costs in both Courts.
34. I agree.