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1914 Supreme(SC) 67
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD SHAW OF DUNFERMLINE, SIR JOHN EDGE, AND MR. AMEER ALI.
DHIRAJ CHANDRA BOSE - Appellant
Versus
HARI DASI DEBI - Respondents
On Appeal from the High Court in Bengal.
Decided On : Oct. 29; Nov. 2, 1914.
Solicitors for appellants: Watkins & Hunter.
A sale conducted under a land revenue proclamation is invalid if the land revenue arrears have been paid and the sale is actually for other certificate dues without the required notice under Section 5 of Act XL of 1859.
Headnote:(A) Act XL of 1859 - Sections 5, 6, 13, 18, 33 - Public Demands Recovery Act - Sections 7 and 9 - Embankment Act - Sale of estate for arrears of revenue - Recovery of embankment charges - Validity of sale - Where land revenue arrears were paid but certificate dues remained unpaid, the sale conducted under the land revenue proclamation without notice under Section 5 of Act XL of 1859 is not a sale for arrears of land revenue and is therefore illegal.
(B) Act XL of 1859 - Section 33 - Scope - The provision that no sale for arrears of revenue shall be annulled by a Court of justice applies only to sales actually conducted for arrears of revenue; it does not protect sales that purport to be for arrears of revenue but are actually for other dues.
Facts of the case:
The proprietor of a share in an estate had arrears of land revenue, and notifications for sale were issued. Subsequently, a certificate was filed for embankment charges. The proprietor applied for exemption and paid the land revenue arrears in full, but the payment did not include the embankment charges. The Collector proceeded to sell the property under the land revenue proclamation for the unpaid embankment charges without issuing fresh notifications under Section 5 of Act XL of 1859. The property was sold and subsequently transferred to another party. The original owner instituted a suit to set aside the sale on the ground that it was illegal.
Findings of Court:
The sale was not for arrears of land revenue but for dues under a certificate for embankment charges. Since the land revenue arrears had been paid, the Collector could not treat the certificate dues as land revenue arrears to justify a sale under the existing proclamation without following the notice requirements of Section 5. The sale was not competent under Act XL of 1859.
Issues: Whether a sale conducted under a land revenue proclamation is valid when the land revenue arrears have been paid and the sale is actually executed to recover certificate dues without notice under Section 5 of Act XL of 1859.
Ratio Decidendi: When the Collector acknowledges payment in full of the arrears of land revenue for which a sale was advertised, he cannot treat arrears of a different character, levied under a certificate procedure, as arrears of land revenue to proceed with the sale under the land revenue proclamation without issuing fresh notices under Section 5. Such a sale is not a sale for arrears of land revenue and is therefore liable to be set aside.
Result: Appeal dismissed.
Legal Category Hierarchy
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revenue law
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land revenue
- sale for arrears
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public demands recovery
- certificate procedure
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land revenue
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practice and procedure
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civil procedure
- locus standi
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civil procedure
Judgement
Appeal from a judgment and decree of the High Court (July 4 1910) reversing a judgment and decree of the Subordinate Judge of Midnapore (March 29, 1909).
The question for determination in the appeal was whether the High Court had rightly decided that the first respondent Hari Dasi Debi was entitled to a decree setting aside a sale, under Act XI. of 1859, of a half share in a zamindari.
The facts were as follows. The first respondent Hari Dasi Debi was the proprietor of a half share of mahal Gumukpota in respect of which a separate account had been opened in the Collectorate
register. There was an arrear in the payment of the kist due on January 19, 1907. Notifications dated February 16, 1907, were issued and published under ss. 6 and 13 of Act XL of 1859 fixing March 26, 1907, as the date of sale of her share in the zamindari " for arrears of revenue and other demands which by law are realizable as arrears of revenue." The arrears due were stated to be " Rs. 547 including Police."
On March 13, 1907, a certificate was filed under s. 7 and s. 9, sub-s. 3, of Bengal Act I. of 1895 (the Public Demands Recovery Act), as amended by Bengal Act I. of 1897, for Rs.69 for embankment charges (pulbandi) due under the Bengal Embankment Act (Bengal Act II. of 1882) in respect of the lands in question.
On March 25, 1907, the first respondent applied by petition to the Collector praying for exemption from sale of her share in the zamindari upon payment of the revenue in arrear. Upon this petition the Collector, on that day, ordered as follows " May be accepted, if paid to-day." Upon inquiry from the clerk of the arrears collection department her agent was informed that the amount due was Rs.807, and this sum was accordingly deposited by her on March 25 and receipts given. The Rs.807, however, did not include the Rs.69 due for pulbandi under the certificate of March 13, 1907.
On March 26, 1907, the non-payment of the Rs.69 was reported to the Collector, who ordered as follows " Rs.69 remains to be paid ; put up for sale." No notifications of the sale were issued under s. 5 of Bengal Act XI. of 1859. Accordingly on that day the half share in the zamindari was put up for sale and was knocked down at the nominal price of Rs.500, it being valued at Rs.50,000. The purchaser, Nandalal Mullick, sold to the first appellant Dhiraj Chandra Bose. The first respondent took proceedings to set aside the sale, but, on May 24, 1907, the Collector confirmed it and ordered the issue of a certificate of title. This order was confirmed by the Commissioner on July 26, 1907, and a sale certificate was subsequently issued.
The first respondent, in January, 1908, instituted the present suit against the purchaser, Nandalal Mullick, and the appellant Dhiraj Chandra Bose, to whom he had sold, claiming to have the sale set aside. By her plaint she claimed, inter alia, that the sale was illegal as the Collector did not act in accordance with the provisions of s. 5 of Bengal Act XL of 1859, and upon the ground that she had been misinformed by the clerk at the Collectorate office as to the amount due.
The Subordinate Judge dismissed the suit. He held, inter alia, that there had been no order for exemption, since the condition upon which it would have been granted had not been fulfilled; that the sale took place for the arrears of land revenue and was valid and final, and that consequently no notifications under s. 5 of Act XL of 1859 were necessary; and that the plaintiffs agent had not been misled as to the amount due, but that, if he had, the Court had no power to relieve the plaintiff upon that ground.
The High Court (Holmwood and Sharfuddin JJ.), by its judgment delivered on July 4, 1910, allowed the appeal. The judgment of the learned judges, after setting out the facts above stated and finding that there was evidence that the existence of the arrear of Rs.69 might have been purposely withheld from the plaintiff, proceeded in the following terms —
" We fully
