K.C. Das Gupta, J.
1. This appeal is by the Commissioner of Wakfs, West Bengal, against the decision of the District Judge of Birbhum dismissing his suit in respect of a wakf property which was sold for arrears of revenue; and raises the question whether non-compliance with the provisions of Section 70(3), Bengal Wakf Act, makes the sale void.
2. The Subject-matter of the suit is 8 annas share of Touzi No. 928 of the Birbhum Collectorate for which there was a separate account. It belonged originally to one Mahammad Hossain who made a wakf of the properties by a wakfnama, dated 26-6-1912. The property was sold at a revenue sale, for arrears of revenue, by the Collector of Birbhum, for default in payment of revenue for the September kist 1936 and was purchased by the respondent Shyamsundar Debansi.
3. Before the property was notified for sale, the notice as required by Section 70(3), Bengal Wakf Act, was not given to the Commissioner of Wakfs. The Commissioner of Wakfs, however, applied to the Collector of Birbhum for vacating the sale -- on this ground -- hut the application was rejected.
An appeal to the Commissioner of the Division was also rejected. In the present suit, the Wakf Commissioner has asked for a declaration that the sale was a nullity and for recovery of possession of the disputed property through the Mutwalli of the wakf property.
4. The defence was that the suit was not maintainable and further that the disputed property was never wakf.
5. The Courts below rejected the defence contention that the property was not wakf but held that the suit was not maintainable.
6. The finding of fact that the property was wakf cannot, and, is not, disputed before us and the only question with which we are now concerned is whether the omission to serve notice as required under Section 70(3), Bengal Wakf Act, affected the jurisdiction of the Collector to hold the sale.
It is not disputed that if in consequence of this omission to serve this notice the Collector had no jurisdiction to hold the sale, nothing passed by the sale and the suit as well as the present appeal should succeed nor is it disputed that if in spite of non-service of the notice the sale was not a nullity, the present suit and the appeal must fail.
7. On behalf of the plaintiff-appellant, Mr. Nausher Ali, contended that before a notification had been duly served under Section 6, Land Revenue Sales Act, the Collector could have no jurisdiction to sell and as the law as enacted by the Bengal Wakf Act was that the issue of notification, would be illegal before the service of notice under Section 70 (3) on the Commissioner of Wakfs, the position in law is that there was no proper service of the notification. Consequently, he argued that the sale was without jurisdiction.
8. For the proposition that the Collector could have no jurisdiction to sell if a notification under Section 6, Revenue Sales Act, was not served, Mr. Nausher Ali relied on a decision of the Full Bench of this Court in -- 'Lala Mobaruk Lal v. Secretary of State', 11 Cal 200 (FB) (A)'.
In that case, the Full Bench held by a majority that the non-compliance with the provisions of Section 6 of Act 11 of 1859 was not a mere irregularity and a sale without complying with these provisions would be null and void.
9. In -- 'Gobind Lal Roy v. Biprodas Roy' 17 Cal 398 (B). Tottenham and Gordon JJ. held that the Collector had acted illegally in selling the estate which was under attachment without a notification under Section 5, such a sale being absolutely prohibited by Sections 5 and 17 of the Act and relying on 'Lala Mobaruk Lal's case (A)', held that as these were illegalities as distinct from irregularities, Section 33 of the Revenue Sales Act did not apply and the sale was a nullity.
This decision was however reversed by the Privy Council in -- 'Gobind Lal Roy v. Ramjanam Misser', 20 Ind App 165 (PC) (C), as their Lordships were of opinion that
'a sale is a sale made under Act 11 of 1859 within the meaning of the Act, when it is a sale for arrears of Government revenue held by the Collector or other officer authorised to hold sales under the Act, although it may be contrary to the provisions of the Act, either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened.'
10. Quite clearly, the view that found favour with the Full Rench of this Court in 'Lala Mobaruk Lal's case (A)', was negatived by the Privy Council in 'Gobinda Lal Roy's case (C)'. It may be mentioned in this connection that after the Privy Council's decision in 'Gobinda Lal Roy's case (C)', this Court had again to consider in -- 'Radha Charan Das v. Sharfuddin Hossein', 17 Cal WN 1135 (D), about the effect of a sale held without proper service of notification under Section 6.
Richardson and Newbould JJ. while holding that there had been sufficient compliance with the provisions for notification, expressed the further opinion that the Privy Council decision in 'Gobind 'Lal Roy's case (C)', 'practically' overruled the decision of the Full Bench of this Court in 'Lala Mobaruk Lal's case (A), and that on the authority of the PrivyCouncil ruling, this Court, would be bound to holdthat the sale could not be annulled by a civilCourt in consequence of the omission to publishthe notification.
11. Mr. Nausher Ali drew our attention also to the decision in -- 'Purna Chandra Chatterjee v. Dinabandhu Mukherjee' 34 Cal 811 (FB) (E), where a Full Bench of this Court held that a sale under the Public Demands Recovery Act without service of notice under Section 10 of that Act was a nullity. MacLean C. J. delivering the judgment of the Full Bench observed:
'The question raised is one of considerable nicety, and not free from doubt as no general test can be applied to determine whether in a given set of circumstances, an act is without jurisdiction and consequently void or only amounts to an irregular or illegal exercise of jurisdiction, and, therefore, merely voidable. It is clear, however, that the view put forward on behalf of the respondents, if adopted, does afford an intelligible basis for the rule uniformly followed for many years past by this Court, namely, that a sale held without service of a notice under Section 10 which is a condition precedent to the validity of the sale, is a sale wholly without authority and is a nullity. Under these circumstances, we are not prepared to dissent from this rule which has been followed in numerous cases.'
12. As in that case the Full Bench was concerned with the scheme of the law embodied in the Public Demands Recovery Act, their Lordships did not refer to the decision of the Privy Council in 'Gobind Lal Roy's case (C)', and, obviously for the same reason, Dr. Rashbehari Ghosh, who contended that the omission to serve notice under Section 10 of the Public Demands Recovery Act did not affect the Collector's jurisdiction to sell, did not also refer to 'Gobinda Lal Roy's case (C)'.
It may be that so long as the decision of the Full Bench as regards the effect of the omission to serve notice under Section 10, Public Demands Recovery Act, is not overruled by another Full Bench of this Court or by the Supreme Court, we would be bound to hold that a sale under the Public Demands Recovery Act without service of notice under Section 1 of that Act is a nullity; but that has nothing to do with the question -- whether a sale under Act 11 of 1859 without a notification under Section 6 of that Act is a nullity -- a question covered clearly by the authority of the Privy Council decision in 'Gobinda Lal Roy's case (C)'.
13. In my judgment, the position clearly is that even if no notification has been issued at all under Section 6 of Act 11 of 1859, the sale will not be without jurisdiction. The conclusion necessarily follows that where, as in the present case, the notification was issued without previous compliance with the provisions of Section 70(3), Bengal Wakf Act, the Collector's jurisdiction to hold a sale is not affected and that the sale is not a nullity.
14. As I have already indicated, it is not disputed that in the circumstances of this case the suit must fail unless the sale is a nullity. It is not necessary, therefore, to consider the further question that was raised whether as regards the injury consequential on the omission to comply with the provisions of Section 70(3) Bengal Wakf Act, the remedy is limited to the special remedy provided in sub-section (5) of Section 70.
15. I would, accordingly, dismiss this appeal with costs.
16. I agree.