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TMI Blog1962 (9) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ently re-posted for hearing and we have now heard the learned counsel for the parties. This facts giving rise to the appeal are briefly as follows: The plaintiff who is the appellant brought a suit in the Court of the Civil Judge at Jalgaon for a declaration that the sales of certain of his lands which were held by the revenue authorities in circumstances which we shall detail later was void, and to recover possession of the lands from the defendants who had purchased these lands in revenue auction. In view of the prayer for the declaration regarding the invalidity of the sale, the Province of Bombay was impleaded as a defendant to the suit. The plaintiff's father was an excise contractor and he and the plaintiff were licensees of certain opium shops in 1931-32. By the end of March, 1934, a sum of about Rs. 8,500 were due to the Government in respect of the excise dues from these opium shops. For the realisation of these dues the lands belonging to the plaintiff were brought to sale and among others Survey Field Nos. 35, 40 and 80 in Mauje Therole, Peta Edalabad, and a house bearing survey No. 23A in the village of Kurhe were brought to sale and sold. The three items of lands wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight, title and interest of the defaulter in any immovable property other than the land on which the arrear is due to be sold." Section 165 directs the Collector to issue a proclamation, in the vernacular language of the district, of the intended sale, specifying the time and place of sale, while the section following requires that a written notice of the intended sale should be affixed in the public office named therein. Section 167 enacts that sales shall be made by auction by such person as the Collector may direct. Section 171 is the next relevant section and this reads : "When the sale is finally concluded by the officer conducting the same, the price, of every lot shall be paid for at the time of sale, or as soon after as the said officer shall direct, and in default of such payment the property shall forthwith be again put up and sold. On payment of the purchase-money the officer holding the sale shall grant a receipt for the same, and the sale shall become absolute as against all persons whomsoever." As some point was made before us of a violation in the instant case of the provisions of sections 172 and 173, we shall read these also : "172. When the sale is subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made and rejected, the Collector shall make an order confirming the sale, provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made, or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale." And section 182 enacts : "182. The certificate shall state the name of the person declared at the time of sale to be the actual purchaser; and any suit brought in a civil court against the certified purchaser on the ground that the purchase was made on behalf of another person, not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed." Section 214 of the Code empowers a State Government by a notification published in the Official Gazette to make rules not inconsistent with the provisions of the Act to carry out the purposes and objects of the Act and for the guidance of all persons in matters connected with the enforcement of the Act or in cases not expressly provided for therein. In the rules framed under the Code Chapter XVIII is concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in a Government resolution in the Revenue Department bearing No. 474 of 1933 that "if defaulters were contumacious the Collector would have authority to purchase on behalf of Government the defaulter's property on a nominal bid." By this letter the Mahalkari desired to have the permission of the Collector to make a nominal bid of Re. 1 at the next auction of the defaulter's property. The principal question raised in this appeal is whether or not the procedure indicated in this resolution is in accordance with the provisions of the Land Revenue Code. Before continuing the narrative it is necessary to refer to a further resolution, No. 4135 of April 16, 1936, which ran : "The procedure of purchasing on behalf of Government a defaulter's property by offering a nominal bid should be adopted in order to effect a speedy recovery of government dues in case where a real difficulty is experienced in making such recoveries and no purchaser is forthcoming to buy the land.... It should not be adopted except as a last resort when various remedies for the recovery of dues have failed or unless it is clear that bidders are deterred from offering bids by other reasons than purely economic c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that no title passed by reason of that sale. As regards the first four of the objections set out above, they have, in our opinion, no substance on the facts of the present case. We do not however consider it necessary to deal with them because they were raised for the first time in this court and they involve questions of fact which were not the subject of pleading or investigation in the courts below. We intimated to the learned counsel that we would not permit him to urge these grounds before us. It is only the last of these grounds that therefore requires to be considered. This raises a question of some importance in the law relating to revenue sales. The question of the validity of such sales was raised before the High Court of Bombay on an earlier occasion and the judgment of the court is reported in Tumdu Dhansing v. Government for the Province of Bombay I. L. R. [1947] Bom. 75. The court was then concerned with an auction-sale conducted by the Mamlatdar, a revenue officer of the Government, by which a property of a substantial value belonging to a surety for a toll-contractor was sold to the Revenue Patel acting for and on behalf of the Government for a nominal sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of this judgment aims in effect at bringing about such a result, for, if effective, it would achieve the extinguishment in favour of Government of all the appellant's rights and ownership in his land. In my judgment what took place at the alleged auction sale was of no effect and did not give to the Revenue Patil or to the Government any right, estate or interest in the appellant's property." When the present appeal was before the learned judges of the Bombay High Court it was pressed before the Division Bench which heard the appeal in the first instance that the reasoning of the decision in Tumdu Dhansing v. Government for the Province of Bombay I. L. R. [1947] Bom. 75 governed the present case also and entitled the plaintiff to succeed and that the appeal should be dismissed. The learned judges observed : "It must be conceded that if he decision in Tumdu Dhansing v. Government for the Province of Bombay I. L. R. [1947] Bom. 75 represents good law, the decision of the trial is correct." They, however, went on to say : "With respect, however, to the learned judges who decided that case (Tumdu Dhansing v. Government for the Province of Bombay we find great difficulty in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enables the Collector to cause the right, title and interest of the defaulter in the immoveable property to be sold. The manner in which those sales might take place is provided for by section 167 which enacts that "sales shall be by public auction by such person as the Collector may direct." Leaving aside for the moment the provisions which details the procedure to be followed in the conduct of these sales, the point to be observed is that the realisation of the dues has to be by "sales" by public auction to be held in the manner prescribed. This, therefore, does not and cannot authorise a forfeiture of the immoveable property of a defaulter because of his contumacious conduct in not paying up his dues when demanded. Nor does the Land Revenue Code contemplate or provide for any punishment of defaulters because of their conduct in either not paying up their dues or in not facilitating the realisation of the dues payable by them by cooperating with the Government and securing a proper price for their property such as would be sufficient for the discharge of their dues. While on this point it might be interesting to point out that section 58 of the Revenue Sale Law (Bengal Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is whether the fact that the defaulter was apprised that Government would bid for a nominal sum of one rupee for the property at the auction renders the sale valid. We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale. If a sale for a nominal bid of one rupee were "a sale by public auction" within section 167 notice to the defaulter that such a procedure would be followed would be legally unnecessary and would not add to the legal efficacy of the sale. If, on the other hand, such a sale or a sale in such circumstances was not a sale by public auction then notice to the defaulter could be of value only if (a) it operated as a waiver of the requirement of section 167, or (b) created an estoppel which precluded him from questioning the legality of the proceeding. First as to waiver, the power to Government to effect the sale by summary process is a special provision resting on public grounds and being so every special it is clear that the limitations on the power thus conferred should be strictly construed. In our opinion, it is an essential condition of the passing of property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to case where no sale as contemplated by law has taken place. It was next submitted that the appellants' suit was barred by section 4(c) and 11 of the Bombay Revenue Jurisdiction Act, 1876. Section 4(c) runs : "4. Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters : (c)... claims to set aside, on account of irregularity, mistake or any other ground except fraud, sales for arrears of land-revenue;"and section 11 enacts : "11. No civil court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present." As to the applicability of section 4(c), it would be noticed that resort to the civil courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of land revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguage be construed to be a decision was pointed out in respect of which an appeal could have been filed. In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place. If section 203 in not attracted it was not suggested that section 11 of the Revenue Jurisdiction Act created any bar to the entertainment of the present suit. It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by section 41 of the Transfer of Property Act. The basis for this argument was that sometime after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,000 from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 Rs. 1,750 and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which section 41 of the Transfer of Property Act was sought to be invoked. The respondent did not rely on any representation or any act or conduct ..... 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