Richard Garth, C.J. (Prinsep and Pigot, JJ., concurring)

1. As regards the first point, which is referred to us inthis case, I am of opinion that the noncompliance with the provisions ofSection 6, Act XI of 1859, was not a mere irregularity, and was certainly notone of those errors in procedure which are intended to be cured (under Section8 of Act VII of 1868), by the purchaser having obtained his certificate.

2. It seems to me that the substantial ground of complainton the part of the judgment-debtor was, that the sale was illegal, as havingbeen made on a day on which the Collector had not a right to make it.

3. Section 6 declares that "the day fixed for the saleshall be a day not less than thirty days from the time when the notice of it isaffixed in the office."

4. It matters not at what time the notice is affixed in theoffice, so long as the day on which the sale is notified to take place is notless than thirty days from that time.

5. But here the day notified for the sale was less thanthirty days from the affixing of the notice; and, consequently, the daynotified was one on which the Collector had no authority to hold the sale. Andas the sale on that day would have been illegal, no adjournment of the sale toany subsequent day could have the effect of legalizing the proceedings.

6. That being so, the next question is, whether the sale inquestion could properly be said to have been "a sale for arrears ofrevenue" within the meaning of Section 33 of Act XI of 1859, so as torender it necessary for the plaintiff to prove any substantial injury.

7. About this I have had some doubt. The sale wasprofessedly made under the Act; but the question is, whether it could really besaid to have been a sale under the Act if the Collector had no right to makeit.

8. In the Full Bench case of Baijnath Sahu v. Lola SitalPrasad 2 B L.R. F.B. 1 : 10 W.R. F.B. 66 a sale was also professedly made forarrears under the Act; but as it was proved by the owner of the estate that noarrears were due, it was held that the Collector had no right to sell, andconsequently that the sale was void.

9. Upon consideration, I am disposed to agree with themajority of the Court that the same principle applies here. If the Collectorhad no right to hold the sale, the error which he committed was not a mereirregularity, but one which rendered the proceedings absolutely void.

10. In that view of the case it is unnecessary for us toanswer the second question; but as it has been referred, and as it is possiblethat the case may go before a higher tribunal, I think it right to say that, inmy opinion, the second question is rather one of fact than of law.

11. I consider, moreover, that their Lordships of the PrivyCouncil in the case of Olpherts v. Mahabir Pershad Singh 11 C.L.R. 494 did notintend to lay down any positive rule in all cases.

12. Suppose that no notice, or only a days notice, of thesale had been given, and that the property had been sold at what was admittedlyabout one-tenth of its value, could any reasonable man hesitate to infer,without any further evidence, that the inadequacy of the price was caused bythe shortness of the notice

13. Then suppose another case, in which only four daysnotice of the sale had been given, and where the property was sold forone-third of its value. The Court surely, if it thought proper, would bejustified in drawing the same inference. It is impossible, as it seems to me,to lay down any hard and fast rule applicable to all such cases.

14. The appeal must go back to the Division Bench forultimate disposal, and we think that the plaintiff is entitled to the costs ofthis reference.

Authored By : Mitter, Loftus Richard Tottenham

Mitter, J.

15. I am of opinion that in this case the non-compliancewith the provisions of Section 6 of Act XI of 1859 under the circumstancesstated in the order of reference avoided the sale, notwithstanding theprovisions of Section 8 of Beng. Act VII of 1868.

16. It seems to me that the Legislature in enacting Section6 of Act XI of 1859 had two objects in view, viz., (1) the fixing of the day ofthe sale, and (2) the publication of the notice as to the day of the sale sofixed. That this was the intention of the Legislature appears clear not onlyfrom the language of the section, but also from the provisions of Sections 3and 5.

17. Section 3 provides that the Board of Revenue at Calcuttashall determine upon what dates all arrears of revenue are to be paid up ineach district under their jurisdiction and shall fix notice of the aforesaiddates in a particular mode. It further directs that in default of payment onthe due date so fixed, the estate in arrear shall be sold at public auction tothe highest bidder. Section 5 provides that in certain specified cases aspecial notice is to be given.

18. After having laid down that on default of payment of thearrears of revenue on due date, the estate shall be sold, the Legislature wouldnaturally next provide as to when the sale was to take place. And this is oneof the matters provided in Section 6.

19. The language of Section 6 is also consistent with thisview of its construction. It seems to me, therefore, that Section 6 declaresthat the day of sale to be fixed shall be a day which shall not be less than 30clear days from the date of affixing the notification in the office of theCollector or other officer mentioned in the section. Therefore, the day of salefixed in this case by the Collector did not fulfil the requirements of Section6; that being so, the Collector, in my opinion, could not, by another orderpurporting to have been passed under Section 20 of Act XI of 1859, adjourn thesale to another day. Upon this point I entirely agree with the observations ofNorris, J. in Bal Mokund Lal v. Jirjoodhun Roy 11 C.L.R. 466 (474). He says:"But further, when in Section 20 we find the words-- to commence the saleon the day of sale fixed, this must refer to a day of sale which has beenlegally fixed. You could not adjourn a meeting which an Act of Parliamentrequires to be convened at 12 days notice if only an eleven days notice hasbeen given. You cannot adjourn an illegally called meeting, and you can onlyadjourn a sale fixed for a certain day when it has been legally fixed for thatday."

20. Therefore, the day on which, in this case, the sale washeld was not a day on which the sale could be held in accordance with theprovisions of the law on the subject; that being so, the Collector, in myopinion, had no power to hold the sale on the day on which it was held. It istherefore null and void, as it was not a sale under the provisions of Act XI of1859.

21. If it was null and void, Section 8 of Beng. Act VII of1868 would not make it valid on the ground that the purchaser has obtained hiscertificate. This section only cures the defects, if there be any, in theprocedure to be observed regarding the service and posting of the notices requiredto be served and posted under the Act. The granting of the certificate cannothave the effect of rendering an illegal sale valid.

22. Then if the Collector had no power to hold the sale inquestion in this case, the right of the plaintiff is not affected by it. Inorder to be successful in this case, it is not, therefore, necessary for him toobtain a decree setting aside the sale. It would be a contradiction in terms toset aside a sale which is null and void, i.e., which is no sale at all. It is thereforenot necessary for the plaintiff to bring his case within the purview of Section33 of Act XI of 1859, which applies where the plaintiff cannot succeed unlessthe sale be set aside. If the sale in this case was null and void, there is nodefence to the plaintiffs claim to recover possession of his property fromwhich he has been ejected under the colour of an illegal sale.

23. In Bunwaree Loll Sahoo v. Mohabeer Proshad Singh L.R. 1IndAp 89 the plaintiff sued to set aside a revenue sale on the ground that thenotice prescribed in Section 5 of Act XI of 1859 was not given. That sectionprovides that no estate which is within the purview of it shall be sold unlessthe notice prescribed in it is given. In that case it was found by the HighCourt that the required notice had not been given. But there was no finding infavour of the plaintiff that he bad sustained any pecuniary loss by the sale.

24. The High Court, however, set aside the sale. Upon thepoint of substantial injury Ainslie, J., who delivered the judgment, says:"To sell a mans estate for arrears after lulling into a false sense ofsecurity by failure to give him a notice which the law prescribes as acondition precedent of a sale, is an injury of itself, wholly irrespective ofthe amount of purchase-money, and in my opinion a very material injury, and oneamply sufficient to warrant a Court in annulling a sale under Section 33 of ActXI of 1859; that such an injury flows directly from the irregularity willhardly be denied." This judgment was upheld by the Judicial Committee. Inthis case also if Section 33 of Act XI of 1859 applies, it may be reasonablysaid that to sell a mans property when you have no power to sell it "isan injury of itself wholly irrespective of the amount of purchase-money";and if this injury be a substantial injury within the meaning of Section 33 ofthe Act, it is clear also in this case that it flowed from the Collectorsnon-compliance with the provisions of Section 6.

25. As regards the second question, I agree in the answergiven to it by my Lord the Chief Justice.

Loftus Richard Tottenham, J.

26. In the further light thrown upon the first questionbefore us by the discussion upon this reference, I have been enabled toperceive that we are not precluded from holding that the date fixed in the salenotification being less than thirty clear days from the date of its beingaffixed in the Collectors Office, there is a legal defect in thatnotification, and that we may so find notwithstanding anything in Section 8 ofBeng. Act VII of 1868.

27. I assent, therefore, to the finding that in this respectthe sale was made contrary to the provisions of the Act. But I say that thesale was not ipso facto null and void. It was a sale for arrears of revenue,and by Section 33 is liable to be annulled only on proof that the plaintiff hassustained substantial injury by reason of this informality in the notification.

28. As to the second question, I am of opinion that theexistence of the particular legal defect found in the present instance is notevidence that it caused the substantial injury attributed to it, viz.,insufficiency in the price bid at the sale. I do not say that there might notbe illegalities in sale proceedings which would by themselves warrant the Courtin holding that they had caused substantial injury to the plaintiff; e.g., asale might be held when no arrears really existed, or there might be a salewithout any notification at all, so that the Government might become thepurchaser for a rupee.

29. I answer the question, therefore, only as regards theparticular case referred to us, and I answer it in the negative. I considerthat the Privy Councils decision in Olpherts v. Mahabir Pershad Singh 11C.L.R. 494 is a sufficient authority to support this view, though I agree thattheir Lordships did not intend to lay down a rule of universal application.

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Mobaruk Lal and Ors.vs. The Secretary of State for India in Council and Ors. (19.01.1885 - CALHC)