Firtu vs State

P.V. Dixit, C.J.—The facts and circumstances under which this petition under articles 226 and 227 of the Constitution of India has been filed are that in proceedings for the recovery of the amounts of Taccayi loans due from the petitioner, lands to the extent of 52.22 acres belonging to the applicant and situated in Mouza Godhi, Raipur district, were sold by auction on l1th May 1961 and were purchased by the opponents Nos. 4 to 13 for a sum of Rs. 12,825/- The petitioner then filed an application under rule 41 of the rules framed u/s 41 of the Madhya Pradesh Land Revenue Code. 1959, before the revenue officer namely, the Naib Tehsildar, Raipur, who conducted the sale for setting aside the sale for certain alleged irregularities and mistakes. This application was rejected by the Naib Tehsildar. The sale proceedings were then committed by the Revenue officer to the Collector for confirmation of the sale. The Collector, after perusing the report of the Revenue Officer and the objections made by the petitioner against the sale, confirmed the sale. Thereupon the petitioner filed an appeal before the Commissioner, Raipur Division. It seems that in the appeal filed before the Commissioner the petitioner had not first Joind the opponents Nos. 4 to 13 (the auction purchasers), to this petition as respondents in that appeal. However, on 30th August 1961 Shri Bajpai, a lawyer, put in an appearance before the Commissioner on behalf of the auction-purchasers. On the next date, that is 26th September 1961, Shri Bajpai made the statement before the Commissioner that be was appearing for only seven of the ten auction-purchasers and that notices be issued to the auction purchasers Bodhilal, Malua and Mangni for whom he was not appearing The Commissioner directed that the petitioner should nay process fee within two days for notices to the said three auction-purchasers. The a peal was put up for hearing before the Commissioner on 27tb October 1961. On this date the auction-purchasers Malup, Mangni and Bodhilal were also present in person and Shri Bajpai appeared for the other auction-purchasers. As the Commissioner was otherwise busy, the appeal could not be heared on that date. On the subsequent hearing, Shri Bajpai raised and pressed the objection that the appeal was incompetent as the petitioner had not impleaded three auction-purchasers, namely, Bodhilal, Mangni and Malua, who were necessary parties to the appeal. The learned Commissioner first overruled the objection by his order dated the 12th December 1961 taking the view that when Shri Bajpai put in an appearance on behalf of at least seven auction-purchasers and when he made an order on 26th September 1961 directing that notices be issued to the other three auction purchasers, the necessary implication was that these auction-purchasers had been made parties to the appeal. By that order, the Commissioner also disposed of the petitioner''s application for condoning delay in joinder of of the auction purchasers by saying that when seven auction-purchasers appeared voluntarily though their counsel Shri Bajpai and notices were directed to be issued to the other three auction purchasers, the delay stood condoned. Leter on, an application made by Bodhilal Malua and Mangni, the Commissioner reviewed his order dated the 12th December 1961 and passed an order on 26th February 1962 setting aside his earlier order and holding that the appeal was incompetent as the aforesaid three auction purchasers had not been impleaded. This time the Commissioner took the view that the seven respondents had appeared of their own accord and not because the. petitioner had made them parties, and that the three auction purchasers, namely, Bodhilai, Malua and Mangni who, though they appeared before him for the first time on 26th October 1961, were not given any notice of the appeal on account of the petitioner''s failure to pay the necessary process fee for the issue of notices. The petitioner then filed an appeal before the Board of Revenue against the order of the Commissioner dismissing his appeal. That appeal was rejected by the Board of Revenue.

The petitioner now seeks by this application a writ Certiorari for quashing the decisions of the Collector, Raipur, the Commissioner, Raipur Division, and the Board of Revenue. He also prays that the sale proceedings be quashed or, or in the alternative, a direction be issued to the Collector to hear him on the objections made by him against the confirmation of sale.

Shri Sen, learned counsel for the applicant, argued thai the sale proceedings were bad inasmuch as a notice of demand as required by section 146 of the Land Revenue Code 1959, was not issued to the petitioner; that the issue of such a notice was mandatory as held by this Court in Premchand Vs. Board of Revenue, 1964 RN 311 = 1964 JLJ-SH 11=1964 RN-SN 1 and Manmohanlal Vs. Board of Revenue 1964 RN 1; that it was incumbent on the collector to hear the objection lodged against the confirmation of sale; and that the appeal preferred by the petitioner could not be dismissed on the ground that the auction purchasers had not been made parties to the appeal when all the auction purchasers voluntarily appeared when the appeal came up for hearing before the Commissioner.

In our judgment the petitioner''s contention that the Commissioner was in error in dismissing the appeal preferred by him on the ground of non-joinder of auction purchaser and that the Collector also erred in confirming the sale without hearing the applicant, must be accepted lt is clear from the record that in the memorandum of appeal filed before the Commissioner the petitioner had not shown any auction purchaser as respondent to the appeal, all the auction purchasers voluntarily put in their appearance when the appeal came up for hearing before the Commissioner on various dates. On 30th August 1951 Shri Bajpai categorically stated that be was appearing for all the auction purchasers. He no doubt on the next date said that his appearance was on behalf of seven auction-purchasers other than Bodhilal, Mangni and Malua. Notices were then directed to be issued to the three auction-purchasers for whom Shri Bajpai withdrew his appearance. It is no doubt true that the appellant (here petitioner) did not pay the necessary process fee for the issue of notice. Bat on 27th October 1961, Malua, Bodhilal and Mangni appeared before the Commissioner when the appeal came up for hearing and the other auction purchasers also appeared through their counsel Shri Bajpai. In the fact of these facts, the objection that the applicant himself did not implead any of the auction purchasers who had voluntarily appeared and, therefore the appeal was incompetent for non-joinder of necessary parties was altogether futile and though technical, lacked substance. If even after the voluntary appearance of the auction-put chasers, the petitioner through some mistake omitted to show the auction-purchasers in the memorandum of appeal as respondent the defect remaining in the memorandum of appeal was merely of form and not of substance. In the fact and circumstances narrated by the Commissioner himself, the appeal preferred by the petitioner could not be dismissed on the technical ground that the auction purchasers had not been shown in the array of the respondents when ail of them voluntarily appeared before the Commissioner to oppose the appeal. The appeal of the petitioner could not, therefore, be dismissed by the Commissioner on the ground that the parties affected by the sale sought to be set aside were not before him as they had not been formally impleaded.

In regard to the objection that the Collector did not give any hearing to the petitioner, it is clear from the report submitted by the Collector to the Commissioner (annexure III) that the applicant was not given any bear-ring by the Collector. In that report, the Collector has candidly admitted that he did not give any hearing to the petitioner and that the confirmed the ale on a perusal of the record and of the petitioner''s objection. The procedure followed by the Collector in confirming the sale without hearing the petitioner or any of the parties affected by the sale was clearly contrary to rule 41. That rule says - "the Revenue Officer may, after giving notice to the persons affected thereby, pass an order selling aside the sale and may order resale". The word "may'''' there has been used in connection with the discretion given to the Revenue officer in setting aside or refusing to set aside a sale. It does not can note that it is at the discretion of the Revenue Officer whether or not to give a notice to any person affected by the sale before making an order of setting aside or confirming the sale. If the giving of a notice under rule 41 to the parties affected by the sale is obligatory, then it follows that these persons must be heard by the Revenue Officer. Before any order with regard to the setting aside or confirmation of the sale is made the Collector has also to follow this rule when the Revenue Officer conducting the sale makes a report to him for confirmation of sale and when objections against the confirmation are filed by any party. Rule 41 does nothing but to embody the rule of the natural justice that a party most be heard in judicial or quasi-judicial proceedings before any order is made against him It is clear from what has been said above that the Commissioner should have entertained and heard the appeal preferred by the petitioner and the only order that he could have made in the appeal was one of setting aside the order of the Collector confirming the sale and directing him to bear the petitioners objections to the sale as required by rule 41.

The petitioner''s objection that no notice of demand u/s 146 of the Code was given cannot be considered here when he did not raise it before the Board of Revenue It is, however, open to him to raise the objection before the Collector at the time when his objections against the confirmation of sale are taken up for hearing pursuant to the direction be are giving in that behalf while allowing this petition.

For these reasons, the decisions of the Board of Revenue, the Commissioner, Raipur Division, and the Collector, Raipur, are quashed and the Collector, Raipur, is directed to dispose of the petitioner''s objections against the confirmation of the sale after hearing the petitioner and the auction-purchasers. In the circumstances of the case, we make no order as to costs. The outstanding amount of security deposit shall be refunded to the petitioner.