The Secretary of State for India in Council vs Rajah Goundar

The facts which it is necessary to notice in this case are as follow: The revenue due on the plaintiff''s mitta for fasli 1302 fell into arrear, and a

portion of it was attached and advertised for sale, with the usual formalities. Some days before the date fixed for the sale the full amount (Rs.

2,766-4-0) of the arrear for fasli 1302, with interest and other charges was paid by the defaulter to the Tahsildar. Meantime, however, the revenue

payable for fasli 1303 had become due, but had not been fully paid by the defaulter. The Collector, therefore, refused to stay the sale already

advertised and sold the land in order to recover the arrears due for falsi 1303. The District Judge found that the sale was invalid and void, and

against this decree the Secretary of State for India in Council appeals mainly, as we are informed by the learned Government Pleader, for the

purpose of ascertaining the meaning of Section 37 of the Revenue Recovery Act (No II of 1864 Madras). The Section runs as follows:

It shall be competent to the defaulter * * * to tender the full amount of the arrears of revenue with the interest thereon, and all charges which have

been incurred in demanding the arrears or in attaching or managing the estate, or in taking the steps necessary-for sale, and thereupon the sale shall

be stayed.

The question for our decision is whether the words ""the full amount of the arrears of revenue"" mean the arrears of revenue on account of which

the land was attached and the notice of sale issued, or include also arrears which accrued after the attachment and also notice, but prior to the day

of tender; in other words, whether, in the present case, the Collector was bound to stay the sale on payment of the arrears of fasli 1302 specified

in the attachment and sale notices, together with interest and other charges thereon, or was justified in bringing the land to sale for the arrears of

fasli 1303, without making any demand or attachment or issuing any sale notice in respect thereof.

We have no doubt but that the sale of the land was, in the circumstances stated, invalid, and voidable at the option of the defaulter.

There is nothing in Section 37 or in any other Section of the Act or even in the notices issued under the Act to justify the conclusion that the land

when attached and advertised for sale for a specified arrear, can after that arrear has been paid up, be legally sold for subsequent arrears. The Act

gives the Collector power to recover arrears in various ways, one of which is by attachment and sale of so much of the land as may be necessary,

but the exercise of this power must be in accordance with the provisions of the Act. First, he must issue a demand in writing u/s 25. If that is of no

avail he may attach the land u/s 27, and may either keep it under management (Section 28), in order to recover the arrears out of the rents and

profits, or may sell the land after due notice (Section 36). In all these Sections the wording of the Act is such as to show that the procedure laid

down refers to ""the arrears"" for which the demand was made, the amount of which is specified in the notices of demand, attachment and sale. Then

follows Section 37 which gives the defaulter the right to pay up ""the arrears"" and charges at any time up to sunset of the day preceding the sale

and thereupon the sale shall be stayed."" If it was intended that the sale should not be stayed unless all arrears subsequent, as well as prior, to the

attachment had been paid, we should certainly have expected an explicit statement to that effect, especially as the Section slates in detail the

various sums which have to be paid in addition to ""the arrears."" The simple addition of some such words as ""up to date of tender"" after the words

arrears of revenue"" would have made the intention, if such there was, quite plain. We do not think that there is anything to justify the importation of

such words. It is argued for the appellant that it is reasonable that the terms should be made more stringent the longer the default continues; and

though the defaulter might u/s 35 obtain the release of the land from attachment by paying merely the arrears for which the attachment was made,

he ought to be required to pay subsequent arrears also if he fails to take advantage of Section 35 and allows the sale notice to issue. It is

contended that the Legislature intended to indicate this further liability by the change in the language of Section 37, that in the Sections prior to

Section 37 and especially in Section 35 reference is made simply to ""arrears"" whereas in Section 37 the words are ""the full amount of the arrears

and that this change of phrase is intended to include subsequent arrears. We do not think that this is so. The words ""the full amount"" appear to be

used merely to show clearly that a part payment would be of no avail. The words ""the full amount"" are used in Section 33 without any such special

import being attached to them. If so considerable a further liability were to be imposed u/s 37, we think that it ought to have been, and would have

been, clearly expressed.

Again, it is argued that the security of the revenue is endangered unless we accept; the appellant''s interpretation of Section 37, inasmuch as

Section 42 provides that the land shall be sold free of incumbrances, and that after liquidating the arrears the balance shall be paid, to the defaulter

who may also (Section 43) collect the rents due up to the day of sale.

In reply to this it would seem to be enough to say that possible risk to the revenue from defective legislation is no sufficient reason for putting a

strained construction on the Act, but we may also add that the risk appears to be unreal, for Section 42 must be read with Section 2 which lays

down the fundamental rule that the land is the security for the public revenue, and there seems to be little doubt but that, in accordance with the

doctrine of conversion, the sale-proceeds of land sold at a sale properly held under the Act would be liable for any arrears of revenue due on the

land at the date of sale. That, however, is not the question before us. The question is whether the sale was a valid sale notwithstanding that the

arrears for which the land was attached had all been paid off prior to the sale. As already stated, we think it was not valid. We observe that in

Section 13, Clause 5, of Regulation XXVII of 1802 (superseded and repealed by Act II of 1864) provision was made in perfectly explicit

language for the recovery of arrears falling due while land was under management of the Collector, and in Section 43 of Act II of 1864 provision is

made for the defaulter to recover rents due up to the date of sale of his land. The Legislature, therefore, when passing the Act had that date

prominently in view for certain purposes, and it seems to us unlikely that if they intended that land attached for one arrear should be sold after its

payment, for the satisfaction of other arrears falling due up to the date of the sale, they would not have expressed the intention in plain language.

We, therefore, confirm the decree of the Court below and dismiss this appeal with costs.