Richard Garth, C.J. (Prinsep and Pigot, JJ., concurring)
1. As regards the first point, which is referred to us in this case, I am of opinion that the noncompliance with the provisions of Section 6, Act XI of 1859, was not a mere irregularity, and was certainly not one of those errors in procedure which are intended to be cured (under Section 8 of Act VII of 1868), by the purchaser having obtained his certificate.
2. It seems to me that the substantial ground of complaint on the part of the judgment-debtor was, that the sale was illegal, as having been made on a day on which the Collector had not a right to make it.
3. Section 6 declares that 'the day fixed for the sale shall be a day not less than thirty days from the time when the notice of it is affixed in the office.'
4. It matters not at what time the notice is affixed in the office, so long as the day on which the sale is notified to take place is not less than thirty days from that time.
5. But here the day notified for the sale was less than thirty days from the affixing of the notice; and, consequently, the day notified was one on which the Collector had no authority to hold the sale. And as the sale on that day would have been illegal, no adjournment of the sale to any subsequent day could have the effect of legalizing the proceedings.
6. That being so, the next question is, whether the sale in question could properly be said to have been 'a sale for arrears of revenue' within the meaning of Section 33 of Act XI of 1859, so as to render it necessary for the plaintiff to prove any substantial injury.
7. About this I have had some doubt. The sale was professedly made under the Act; but the question is, whether it could really be said to have been a sale under the Act if the Collector had no right to make it.
8. In the Full Bench case of Baijnath Sahu v. Lola Sital Prasad 2 B L.R. F.B. 1 : 10 W.R. F.B. 66 a sale was also professedly made for arrears under the Act; but as it was proved by the owner of the estate that no arrears were due, it was held that the Collector had no right to sell, and consequently that the sale was void.
9. Upon consideration, I am disposed to agree with the majority of the Court that the same principle applies here. If the Collector had no right to hold the sale, the error which he committed was not a mere irregularity, but one which rendered the proceedings absolutely void.
10. In that view of the case it is unnecessary for us to answer the second question; but as it has been referred, and as it is possible that the case may go before a higher tribunal, I think it right to say that, in my opinion, the second question is rather one of fact than of law.
11. I consider, moreover, that their Lordships of the Privy Council in the case of Olpherts v. Mahabir Pershad Singh 11 C.L.R. 494 did not intend to lay down any positive rule in all cases.
12. Suppose that no notice, or only a day's notice, of the sale had been given, and that the property had been sold at what was admittedly about one-tenth of its value, could any reasonable man hesitate to infer, without any further evidence, that the inadequacy of the price was caused by the shortness of the notice
13. Then suppose another case, in which only four days' notice of the sale had been given, and where the property was sold for one-third of its value. The Court surely, if it thought proper, would be justified in drawing the same inference. It is impossible, as it seems to me, to lay down any hard and fast rule applicable to all such cases.
14. The appeal must go back to the Division Bench for ultimate disposal, and we think that the plaintiff is entitled to the costs of this reference.
15. I am of opinion that in this case the non-compliance with the provisions of Section 6 of Act XI of 1859 under the circumstances stated in the order of reference avoided the sale, notwithstanding the provisions of Section 8 of Beng. Act VII of 1868.
16. It seems to me that the Legislature in enacting Section 6 of Act XI of 1859 had two objects in view, viz., (1) the fixing of the day of the sale, and (2) the publication of the notice as to the day of the sale so fixed. That this was the intention of the Legislature appears clear not only from the language of the section, but also from the provisions of Sections 3 and 5.
17. Section 3 provides that the Board of Revenue at Calcutta shall determine upon what dates all arrears of revenue are to be paid up in each district under their jurisdiction and shall fix notice of the aforesaid dates in a particular mode. It further directs that in default of payment on the due date so fixed, the estate in arrear shall be sold at public auction to the highest bidder. Section 5 provides that in certain specified cases a special notice is to be given.
18. After having laid down that on default of payment of the arrears of revenue on due date, the estate shall be sold, the Legislature would naturally next provide as to when the sale was to take place. And this is one of the matters provided in Section 6.
19. The language of Section 6 is also consistent with this view of its construction. It seems to me, therefore, that Section 6 declares that the day of sale to be fixed shall be a day which shall not be less than 30 clear days from the date of affixing the notification in the office of the Collector or other officer mentioned in the section. Therefore, the day of sale fixed in this case by the Collector did not fulfil the requirements of Section 6; that being so, the Collector, in my opinion, could not, by another order purporting to have been passed under Section 20 of Act XI of 1859, adjourn the sale to another day. Upon this point I entirely agree with the observations of Norris, J. in Bal Mokund Lal v. Jirjoodhun Roy 11 C.L.R. 466 (474). He says: 'But further, when in Section 20 we find the words--' to commence the sale on the day of sale fixed,' this must refer to a day of sale which has been legally fixed. You could not adjourn a meeting which an Act of Parliament requires to be convened at 12 days notice if only an eleven days notice has been given. You cannot adjourn an illegally called meeting, and you can only adjourn a sale fixed for a eertain day when it has been legally fixed for that day.'
20. Therefore, the day on which, in this case, the sale was held was not a day on which the sale could be held in accordance with the provisions of the law on the subject; that being so, the Collector, in my opinion, had no power to hold the sale on the day on which it was held. It is therefore null and void, as it was not a sale under the provisions of Act XI of 1859.
21. If it was null and void, Section 8 of Beng. Act VII of 1868 would not make it valid on the ground that the purchaser has obtained his certificate. This section only cures the defects, if there be any, in the procedure to be observed regarding the service and posting of the notices required to be served and posted under the Act. The granting of the certificate cannot have the effect of rendering an illegal sale valid.
22. Then if the Collector had no power to hold the sale in question in this case, the right of the plaintiff is not affected by it. In order to be successful in this case, it is not, therefore, necessary for him to obtain a decree setting aside the sale. It would be a contradiction in terms to set aside a sale which is null and void, i.e., which is no sale at all. It is therefore not necessary for the plaintiff to bring his case within the purview of Section 33 of Act XI of 1859, which applies where the plaintiff cannot succeed unless the sale be set aside. If the sale in this case was null and void, there is no defence to the plaintiff's claim to recover possession of his property from which he has been ejected under the colour of an illegal sale.
23. In Bunwaree Loll Sahoo v. Mohabeer Proshad Singh L.R. 1 I.A. 89 the plaintiff sued to set aside a revenue sale on the ground that the notice prescribed in Section 5 of Act XI of 1859 was not given. That section provides that no estate which is within the purview of it shall be sold unless the notice prescribed in it is given. In that case it was found by the High Court that the required notice had not been given. But there was no finding in favour of the plaintiff that he bad sustained any pecuniary loss by the sale.
24. The High Court, however, set aside the sale. Upon the point of substantial injury Ainslie, J., who delivered the judgment, says: 'To sell a man's estate for arrears after lulling into a false sense of security by failure to give him a notice which the law prescribes as a condition precedent of a sale, is an injury of itself, wholly irrespective of the amount of purchase-money, and in my opinion a very material injury, and one amply sufficient to warrant a Court in annulling a sale under Section 33 of Act XI of 1859; that such an injury flows directly from the irregularity will hardly be denied.' This judgment was upheld by the Judicial Committee. In this case also if Section 33 of Act XI of 1859 applies, it may be reasonably said that to sell a man's property when you have no power to sell it 'is an injury of itself wholly irrespective of the amount of purchase-money'; and if this injury be a substantial injury within the meaning of Section 33 of the Act, it is clear also in this case that it flowed from the Collector's non-compliance with the provisions of Section 6.
25. As regards the second question, I agree in the answer given to it by my Lord the Chief Justice.
26. In the further light thrown upon the first question before us by the discussion upon this reference, I have been enabled to perceive that we are not precluded from holding that the date fixed in the sale notification being less than thirty clear days from the date of its being affixed in the Collector's Office, there is a legal defect in that notification, and that we may so find notwithstanding anything in Section 8 of Beng. Act VII of 1868.
27. I assent, therefore, to the finding that in this respect the sale was made contrary to the provisions of the Act. But I say that the sale was not ipso facto null and void. It was a sale for arrears of revenue, and by Section 33 is liable to be annulled only on proof that the plaintiff has sustained substantial injury by reason of this informality in the notification.
28. As to the second question, I am of opinion that the existence of the particular legal defect found in the present instance is not evidence that it caused the substantial injury attributed to it, viz., insufficiency in the price bid at the sale. I do not say that there might not be illegalities in sale proceedings which would by themselves warrant the Court in holding that they had caused substantial injury to the plaintiff; e.g., a sale might be held when no arrears really existed, or there might be a sale without any notification at all, so that the Government might become the purchaser for a rupee.
29. I answer the question, therefore, only as regards the particular case referred to us, and I answer it in the negative. I consider that the Privy Council's decision in Olpherts v. Mahabir Pershad Singh 11 C.L.R. 494 is a sufficient authority to support this view, though I agree that their Lordships did not intend to lay down a rule of universal application.