TMI Blog1979 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... file of the District Munsif's 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 Shanmugham Chettiar, subject to the Government loan of ₹ 1,600 and the said sale was duly confirmed The auction-purchaser Shanmugham Chettiar applied to the Revenue authorities for payment of the loan amount outstanding on the lands and by proceedings dated 2nd January, 1963, the auction-purchaser was directed to pay a sum of ₹ 2.126.67 in full discharge of the Government loan due by the appellant herein. Accordingly, the auction-purchaser paid the sum on 5th January, 1963. Meanwhile at the instance of the appellant herein, the District Court, Tiruchirapalli in C.M.A. No. 106 of 1961 set aside the Court-auction-sale held in favour of Shanmugham Chettiar. The appellant thereafter filed E. A. No 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 : In view of this, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to request the Court to set 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 fourth respondent herein thereafter filed Writ Petition No 4576 of 1975 challenging the validity of the said Government Order dated 14th March, 1975. Ramanujam, J., by the impugned judgment dismissed both the writ petitions. The dismissal of W.P. No. 4576 of 1975 has become final because no further proceedings have been instituted against the judgment of Ramanujam, J. It is as against the dismissal of W.P. No. 2956 of 1972, the owner of the land has filed the present appeal. 4. Learned Counsel for the appellant contends that Ramanujam, J., was in error in holding that the revenue auction sale 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 urged 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us to the sale, the Collector or other officer empowered by the Collector 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 land and of his buildings thereon; the amount of revenue assessed on the land, or upon its different sections; the proportion of the public revenue 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 Collector's office and in the taluk cutcherry. in the nearest police station-house, and on some conspicuous 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 conspicuous part of the land. Notwithstanding this finding, the learned Judge went on to state that this failure on the part of the authorities herein did not invalidate the sale. The learned Judge observes as follows: Thus, the only illegality pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso 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 of fraud, as pointed out in Ramasesha Iyer v. Ramanujachartar (1935) 41 L.W. 309 : 1571. C. 251 : A.I.R. 1935 Mad. 459, where all the relevant decisions have been considered. The Madras and Calcutta High Courts have always been of this opinion. Ramanujam, J , thereafter extracted another portion of the judgment of the Privy Council dealing with the irregularity in no-affixing the sale proclamation in the Collector's Office as prescribed in Order 21, Rule 54 read with Rule 67 of the Code of Civil Procedure. After extracting the said passage, the learned Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady 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 w as 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 what can be said to be an illegality in the conduct of sale and what can be said to be a material irregularity in the publishing or the conduct of sale. Even Mr. Peter Francis. the learned Counsel for the fourth respondent had to rely o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 of 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 woo are exercising the statutory powers under the Act and that is the reason why 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 asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply with the statutory requirement has been brought to our notice and therefore we have come to our own conclusion on the basis 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 sold 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 due to the Government by the appellant on the loan account on the date of sale was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty was sold for recovery of a sum of ₹ 6,541 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 referred to Appendix III to Board's Standing Order 41 to which we have referred. If the learned Judge is willing to be guided by that Appendix, the learned Judge would have found that under (a) (7) of that appendix, failure to affix the sale notice No. 7 on the sale land was declared to be an illegality and therefore the sale was vitiated. We have examined both headings (a) and (b) under Appendix III to Board's Standing Order 41, and neither (a) nor (b) includes in its enumeration a violation of Section 44 of the Act. Therefore, Appendix III as such is not of any assistance 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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