Ominder Hari Darshan Singh vs Punjab State and others

M.R. Sharma, J.(Oral)

The property in dispute belonged to one Darshan Singh. He had taken a Taccavi loan in sum of Rs. 6,000/ for the construction of a tubewell. Since he was unable to pay back the amount, his land was attached by the revenue authorities on 8.1.1961 and onethird of it was put to auction on 10.6.1963, by the Tehsildar after obtaining the sanction of the Commissioner under the provisions of the Punjab Land Revenue Act (hereinafter called the Act). The appellant filed a suit inter alia on the grounds

(i) that prior to the date on which the property was put to auction Darshan Singh had died and the proclamation of sale had not been served on his legal representatives; and

(ii) that even though the purchaserrespondent paid 1/4th amount on the date when the final bid was made by him, the remaining amount was paid by him long after seven days of the date on which the Commissioner sanctioned the sale.

The suit was hotly contested by the State and Respondent No. 8 who besides traversing other pleas, which need not be noticed at this place, averred that the Civil Court had no jurisdiction to entertain this suit and the suit was filed beyond a period of one year, which was the period of limitation prescribed under law for challenging the order passed by a public servant on the ground that the same is void.

The pleas raised by the defendants prevailed with the learned trial Court and the same view was taken by the learned lower appellate Court in appeal. The appellant has come up in second appeal before me.

Before I proceed to give my findings on point No. (i), I deem it necessary to mention a few dates. As noticed earlier, the land in dispute was attached on 8.1.1961. Darshan Singh defaulter died on 9.11.1962. The property was put to auction on 10.6.1963. The Commissioner of the Division accorded his sanction to the sale on 14.10.1963. Seventy five % of the sale money was deposited by the auctionpurchaser on 25.11.1963. It is, thus, apparent that balance amount was deposited beyond 15 days of the sale which was conducted on 10.6.1963. In this connection, the learned counsel for the appellant drew my attention to sections 85 and 88 of the Act which read as under :

"Section 85. When the highest bid at the auction had been ascertained the person who made that bid shall, on the requisition of the officer conducting the sale, pay to that officer a deposit of twentyfive per centum on the amount of his bid, and shall, on payment therefore, be declared to be the purchaser subject to the provisions of this Chapter with respect to the exercise of any right of preemption.

Section 88. The full amount of the purchase money shall be paid by the purchaser before the close of the fifteenth day from that on which the purchaser was declared."

It was argued on behalf of the appellants that the officer conducting the sale was under a legal obligation to declare the final bidder as the purchaser of the property as soon as the latter paid 25% of the amount of his bid and that the remaining 75% of the bid money had to be paid within 15 days as laid down in section 88. The argument raised is that it was not open either to the officer conducting the sale or to the Commissioner to postpone the payment of 75% of the bid money by the purchaser. In this connection, the learned counsel referred to a Division bench judgment of this Court in Sardara Singh and others v. Hakam Singh and others, 1976 P.L.R. 441. Therein the learned Judges, on the analogy of the rule laid down by the Supreme Court of India on the interpretation of Order XXI, rules 84, 85 and 86, Code of Civil Procedure, held that if 75% of the bid amount is not paid within the statutory period, the consequent sale is a nullity.

The learned counsel for respondent No. 8, however, brought to my notice the statement made by Som Nath Taccavi Clerk, who was examined by the appellant as P.W. 1. He has made statement after referring to the official record that it was one of the conditions of the auction that balance amount of sale money shall be payable within 7 days of the sanction accorded by the Commissioner. He has also stated that vide letter dated 19.10.1963 the Commissioner conveyed the approval of the auction to the Deputy Commissioner. On 30.10.1963, the Deputy Commissioner ordered that the sanction be conveyed to the Tehsildar,Sonepat. On 2.11.1963 Tehsildar, Sonepat, issued summons for the appearance of Raunaq Singh respondent No. 11.11.1963 for that date, Raunaq Singh respondent could not be served. It was then ordered that notice by registered post be issued to Raunaq Singh for 26.11.1963. However, on 25.11.1963 Raunaq Singh deposited 75% of the bid money. It is thus obvious that as far as Raunaq Singh respondent is concerned, he did deposit the balance amount of auction money within 7 days of his knowledge of the order passed by the Commissioner even though the said order had not been actually served upon him.

The learned counsel for the appellant then argued that under section 85 of the Act, the Tehsildar conducting the sale had to declare Raunaq Singh as the purchaser immediately after he had paid 25% of the bid money and the latter had to deposit the remaining 75% amount within 15 days of its declaration under section 88 of the Act. It was also submitted that it was not within the discretion of the officer conducting the sale to postpone the declaration of the purchaser and if the officer conducting the sale has contravened any provision of law, the benefit of it should go to the owner of the land, which is put to auction. The procedure regarding recovery of arrears of land revenue from a defaulter has of course to be strictly construed and the learned counsel for the appellant is justified in submitting that an auctionpurchaser whose source of title is the order passed by the Tehsildar conducting the sale should not be allowed to seek benefit of an illegality committed by him under normal circumstances, but there is section 158(2)(xv) of the Act which gives a complete answer to the point raised by the learned counsel. It reads as under :

"Section 158. Except as otherwise provided by this Act (1) ... ... ...

(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely : ... ... ...

(xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of landrevenue or any sum recoverable as an arrear of landrevenue."

Even if the Revenue Officer conducting the sale has made a delayed declaration of the purchaser, it can at best be said that he exercised the powers vested in him not strictly in accordance with law. A mere departure from the procedure in which the power is to be exercised cannot be challenged in a Civil Court. In Sardara Singh''s case (supra), the Division Bench expressly noticed that therein the property of a person was put to auction who was not a defaulter within the meaning of section 3(8) of the Act. When a person is not a defaulter the Revenue Officer cannot touch his property under the provisions of the Act and any interference by him in the rights of an owner of property would be regarded as an action which does not fall under the Act.Such an action would be clearly without jurisdiction. Herein, however, Darshan Singh was admittedly a defaulter and the Revenue Officer did have the jurisdiction to put his property to sale under the orders of the Commissioner. This is precisely what he did in this case. However, in the process involved, he made a slight departure from the procedure contained in section 85 of the Act. The appellant could, if he so liked, file objections before the Commissioner under section 91 of the Act on this point and if he had been able to establish before the Commissioner that he has sustained substantial injury by reason of this departure of procedure the Commissioner would have given him appropriate relief. Similarly, if the copy of the proclamation had not been served upon the appellant as a legal representative of Darshan Singh, it was open to him to raise this plea also before the Commissioner. Admittedly, he did not file any objection petition under section 91 of the Act. The non service of the proclamation of sale on the legal representative of the deceased also falls within the description of the manner in which the sale is conducted. Such an objection has also to be raised before the Commissioner and a Civil Court is debarred from taking cognizance of it under section 158 of the Act.

It am, therefore, of the view that the learned Courts below were well advised in nonsuiting the appellant on this point. Once it is so held, it is not necessary to give any considered judgment on the second point raised on behalf of the appellant.

For reasons aforementioned, I find no force in this appeal and dismiss the same.