Judgment

AYYANGAR, J.: This appeal comes before us on a certificate of fitness granted by the High Court of Bombay under Art. 133 (1) (a) of the Constitution.

2. The appeal was heard by us in November last and judgment was reserved on November 9, 1961. Within a short time thereafter, learned Counsel for the Appellant intimated the Registry that the 2nd respondent had died on November 5, 1961 and that steps were being taken to have the legal representative brought on record. The certificate under Order XVI Rule 13 was received by this Court and on its basis substitution was ordered at the end of August 1962. The appeal was subsequently reported for hearing and we have now heard the learned Counsel for the parties.

3. The 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 a Jalgaon for a declaration that the sale 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.

4. 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 Idalabad and a house bearing Survey No. 23A in the village of Kurhe was brought to sale and sold. The three items of lands were purchased by government at the sale for a nominal bid of Rs. 1/- for each item for realisation of these dues. The sale was confirmed and possession taken by government of these lands. Later the government sold the land bearing Survey No. 80 to the second defendant for Rs. 2,000/- and Survey Nos. 35 and 40 to the fifth defendant for Rs. 1,750/- Possession of these properties was delivered to the respective defendants in 1939. As substantially the arrears due to government still remained undischarged, because the sales were for nominal amounts, the house-property at Kurhe was attached and brought to sale and was sold on November 6, 1940 but the purchase in the case of the house was not by the government but the property was bid for and purchased by the second defendant for Rs. 76/-. A certificate of sale was issued to him on February 13, 1941. It was the validity of these sales that was challenged in the suit which has given rise to this appeal.

5. The suit was substantially decreed in favour of the plaintiff by the trial Judge but on appeal the plaintiff s suit was dismissed in respect of the relief in regard to the three plots above-named which were the subject of sale on September 21, 1938 and of the house which was sold on November 6, 1940. The learned trial Judge had held that these sales were not in accordance with the provisions of the Bombay Land Revenue Code and were consequently void. The learned judges of the High Court, on the other hand, were of the opinion that the sales and the purchase by government for a nominal sum of Re. 1/- for each of the plots were authorized by the Code and were therefore valid and binding on the plaintiff. It is the correctness of this view of the High Court that is raised for consideration in the appeal.

6. Before dealing with the arguments addressed to us regarding the validity of the sales it is necessary to set out the statutory provisions which bear upon the power of government to effect sales for the realisation of arrears due to them.

7. Section 34 of the Bombay Abkari Act enables arrears of excise revenue to be recovered as an "arrear of land revenue" Chapter XI of the Bombay Land Revenu