PRABIN RAM PHUKAN (DEAD) THR. LRS. Vs STATE OF ASSAM .
Bench: M.Y. EQBAL,ABHAY MANOHAR SAPRE
Case number: C.A. No.-000662-000663 / 2008
Diary number: 17676 / 2005
Advocates: PRAVIR CHOUDHARY Vs
CORPORATE LAW GROUP
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 662-663 OF 2008
Sri Prabin Ram Phukan & Anr. .…Appellant(s)
Versus
State of Assam & Ors. ….Respondents(s)
J U D G M E N T
1. Leave granted
2. These civil appeals arise out of common
judgment dated 06.05.2005 passed by the Division
Bench of the High Court of Guwahati in W.A. No.
1
Page 2
512 of 2002, which in turn, arises out of judgment
dated 26.02.2001 passed by the learned Single
Judge in W.P. No. 2234 of 2000 and W.P. (Civil) No.
5628 of 2004 arising out of order dated
23.02.1998 passed by the Board in Case No.
42RA(K) of 1996.
3. By impugned judgment, the Division Bench
allowed the writ appeal and writ petition filed by
the State of Assam, in consequence, set aside the
order dated 23.02.1998 passed by the Board at
Guwahati impugned in the writ petition and also
set aside the order dated 26.02.2001 passed by
the learned Single Judge in W.P. No. 2234 of 2000.
4. The question arises for consideration in these
appeals is whether the High Court was justified in
allowing the writ appeal and the writ petition filed
by the State thereby was justified in setting aside
2
Page 3
the order of the Board impugned in the writ
petition?
5. In order to appreciate the issue involved in
these appeals, it is necessary to state the facts in
detail infra.
6. The dispute relates to the agricultural land
measuring 59 Bighas 1 Katha 14 Leacha covered
by Dag Nos. 435, 437, 376, 433, 434, 438, 439,
358, 361, 1348, 343 and 836 bearing patta Nos.
284 (new)/269(old) situated at Village Betkuchi in
Mouza Beltola in the District of Kamrup. The
appellants were the co-land holders of this land
which is an “estate” as defined under Section 3(b)
of the Assam Land And Revenue Regulation, 1886
(hereinafter referred to as "The Regulation").
Their names were also duly entered in the revenue
records as “recorded land holders” as defined in
3
Page 4
Section 3(i) of the Regulation, all through. This
land is subjected to payment of land revenue as
per the provisions of the Regulation.
7. It appears, as being an undisputed fact, that
a sum of Rs.731.70 was found payable by the
appellants towards land revenue on the aforesaid
land (estate) and since the appellants did not pay
the said amount, the Deputy Commissioner
registered a case being Case No. 3/13 of 1976-77
for recovery of Rs. 731.70 from the appellants. The
Deputy Commissioner after making efforts to
realize the dues by sale of moveable of the
appellants put the aforesaid land for auction sale
on 29.06.1978 for realization of Rs.731.70 as per
the provisions of the Regulation. However, no
bidder participated in the auction proceedings
held on few adjourned dates and hence, the State
4
Page 5
stepped in and purchased the entire land/estate
for Rs.1/- in the auction proceedings as provided
under Rule 141. Thereafter, the State allotted 40
Bighas of land out of total land to the Indian Oil
Corporation (IOC) on payment of yearly premium
of Rs. 26,000/- per Kattha. In addition, the State
also directed the IOC to deposit Rs.38,50,600/-
towards compensation with the State Government.
The IOC, accordingly, deposited the sum as
directed.
8. The appellants (land holders) claiming to be
completely unaware of the aforesaid proceedings
and on coming to know of the same filed Case No.
42/RA(K) of 1996 on 02.04.1996 before the Board
at Guwahati under Rule 149 of the Regulation.
The challenge to the entire proceedings was on
the grounds inter alia that firstly, the sale/auction
5
Page 6
proceedings undertaken by the Deputy
Commissioner for realization of Rs.731.70 as
arrears of land revenue for the land in question
were per se without jurisdiction and against the
mandatory procedure prescribed in the Regulation
for recovery, attachment and sale of estate.
Secondly, the appellants were not given any
notice of demand for payment of Rs. 731.70 and
nor any notice was served prior to sale/auction
proceedings as provided in the Regulation. Thirdly,
the so called auction, even if held, was no auction
as contemplated in the Regulation because no
publicity was given to enable any bidder to
participate in the auction proceedings and in fact
no bidder participated in the said auction and
lastly, in such circumstances, the auction sale
made in favour of the State for Rs.1/- as per Rule
6
Page 7
141 was illegal and liable to be set aside, entitling
the appellants to seek restoration of land.
9. The Board, by order dated 23.02.1998,
allowed the appeal filed by the appellants and
held that no notice of either recovery of arrears of
land revenue or/and auction proceedings was
served on the appellants much less served as per
the procedure prescribed in the Regulation, that
attachment and sale of the so called moveable of
the appellants and also of the land in question
was not done as per the procedure prescribed in
the Regulation, that a valuable land whose market
value was around 50 lacs approximately should
not have been put to sale for realization of
Rs.731.70 as it caused extreme hardship to the
appellants and lastly, no sincere attempt was
made to sell either moveable properties of the
7
Page 8
appellants as provided in Section 69 for realization
of dues prior to the auction or to sell the land in
question as provided in the Regulation. The
Board, after recording these findings, set aside the
auction and the sale proceedings and directed the
State to restore the land to the appellants on their
paying outstanding land revenue and other dues,
if any, as per law. It was further directed that since
in the meantime, out of total land, some portion of
the land, i.e., (40 Bighas or so) was already
allotted to the IOC for consideration and hence,
instead of restoring the possession of the land
allotted to the IOC, the amount of compensation
deposited by the IOC for allotted land was directed
to be paid to the appellants after working out their
actual share in the land. In this way, the
appellants got around 19 Bighas of land and also
8
Page 9
became entitled to receive the compensation
amount deposited by the IOC whereas the IOC was
allowed to retain the allotted land in lieu of
compensation paid by them for such land.
10. In compliance of the said order, the Deputy
Commissioner raised a demand (KRM 28/96/16)
dated 15.02.1999 for Rs.1092/- towards land
revenue and Rs.273/- towards local tax from the
appellants in relation to the land in question. On
16.02.1999, the appellants deposited the sum so
demanded. Since the State was not paying the
compensation amount to the appellants in terms
of the directions of the Board, the appellants filed
Writ Petition No. 2234 of 2000 before the High
Court seeking mandamus against the State and
the concerned State Authorities to pay/release the
compensation amount to the appellants.
9
Page 10
11. Learned single judge, by order dated
26.02.2001, allowed the appellants’ writ petition
and by issuing a mandamus directed the
State to pay the compensation amount to the
appellants in terms of order of the Board within
three months. Feeling aggrieved by the said order,
the State filed review petition being R.P. No. 4 of
2002. By order dated 11.01.2002, the Review
court dismissed the review petition.
12. Challenging the order dated 26.02.2001 in
W.P. No. 2234 of 2000, the State filed intra court
appeal being W.A. No 512 of 2002 before the High
Court. The State also filed an application for
condonation of delay in filing the appeal since it
was filed beyond the period of limitation of around
496 days.
1
Page 11
13. The High Court, by order dated 27.05.2003,
dismissed the appeal as being barred by
limitation. It was held that no sufficient cause had
been shown by the State to condone the delay in
filing the appeal. Feeling aggrieved by the
dismissal of their appeal, the State filed SLP (C)
No. 874 of 2004 before this Court. By order dated
03.09.2004, this Court granted leave and allowed
the appeal and remanded the case to the Division
Bench for its decision on merits in the appeal.
14. Challenging the order dated 23.02.1998
passed by the Board which had allowed the appeal
filed by the appellants, the State filed petition
being W.P. No. 5628/2004 before the High Court.
The Division Bench clubbed writ appeal of the
State (WA No. 512/2002), which was remanded by
this Court to the High Court for its disposal on
1
Page 12
merits with Writ Petition No 5628 of 2004 filed by
the State because both the cases had arisen out of
the same order of the Board and pertained to the
same land.
15. By impugned order, the Division Bench
allowed the writ appeal and the writ petition. The
High Court held that notice of demand and sale of
land were served on the appellants as per the
procedure prescribed in the Regulation and that
the auction held by the Revenue Authorities was
legal and was held in conformity with the
procedure laid down in the Regulation. It was also
held that no direction could be issued by the Board
to pay compensation to the appellants for the land
which was rightly purchased by the State for Rs.1/-
in the auction sale as per Rule 141. The High
Court thus upheld the auction sale as also the
1
Page 13
transfer of land to the State as provided in Rule
141 for Rs.1/-. Against this order, the landowners
filed these appeals by way of special leave before
this Court.
16. Assailing the legality and correctness of the
order, learned Counsel for the appellants mainly
contended five points that are:
(i) that the High Court erred in allowing the
writ appeal and the writ petition filed by the
State thereby erred in quashing the order of
the Board. According to him, the well-
reasoned findings of fact recorded by the
Board was binding on the writ court while
deciding the writ petition filed under Article
227 of the Constitution and otherwise also
the findings were beyond challenge because
1
Page 14
they were legal and proper calling no
interference in the writ proceedings;
(ii) that none of the mandatory procedure
prescribed under the Regulation and
especially, the procedure prescribed for, (1)
effecting service of notices on the defaulting
landholders for recovery of land revenue
payable on their estate (2) sale of
properties/estate of the landholders for
realization of unpaid land revenue and (3) the
manner as to how the auction sale is to be
conducted for disposal of the
properties/estate were complied with by the
revenue authorities;
(iii) that when there was no notice served on
the appellants of the auction proceedings, no
1
Page 15
publicity was given to such proceedings and
no bidder participated in the so-called auction
proceedings then in such circumstances, it
was beyond anybody's comprehension as to
on what basis, the sale/auction could be held
and if held, the same could be held as being
legal.
(iv) that in no case, the land whose market
value was more than Rs.50 lacs (approx.)
could directly be put to auction sale for
realization of such meager sum of Rs. 731.70
as arrears of land revenue unless all other
modes of recovery provided in the Regulation
had been exhausted which in this case was
not done and assuming that it was done yet it
was not done in conformity with the
procedure prescribed in the Regulation;
1
Page 16
(v) that in any event, such valuable land
could not have been restored or/and sold to
the State for Rs.1/- by taking recourse to
Rule 141 on the ground that no bidder
participated in the auction proceeding unless
entire procedure prescribed in Section 69 for
recovery of arrears by sale of moveable was
followed in the first instance and on failure to
recover by such mode, the steps should
have been taken to auction or/and re-auction
the land to enable the bidders to participate
in the auction proceedings which again was
not done and lastly, the appellants in the
event of their success in these appeals would
be satisfied, if they are allowed to withdraw
the compensation amount deposited by the
1
Page 17
IOC for 40 Bighas of land and are further
allowed to retain the remaining land.
17. In contra, learned counsel for the State
supported the impugned judgment and contended
that it should be upheld as it does not call for any
interference.
18. Having heard the learned counsel for the
parties and on perusal of the record of the case,
we find force in the submissions urged by the
learned counsel for the appellants.
19. Before we consider the factual issues arising
in this case, it is apposite to take note of the
relevant Sections/Rules of the Regulation, which
have a bearing over the controversy.
20. The Regulation consists of two parts. Part I
consists of Sections whereas Part II consists of the
Rules. The provisions of the Regulation applies to
1
Page 18
all lands by virtue of Section 4 except the lands
which are specified in Section 4(a), i.e., the land
which is included in any forest constituted a
reserved forest under the law for the time being in
force and (b), i.e., any land which the State
Government may by notification exempt from
operation of the Chapter. The relevant provisions
are extracted hereinbelow:
Sections
3. Definitions — In this Regulation, unless there is something repugnant in the subject or context,
(b) “estate” includes – (1) any land subject, either immediately or prospectively, to the payment of land revenue, for the discharge of which a separate engagement has been entered into;
(2) any land subject to the payment of, or assessed with a separate amount as land revenue, although no engagement has been entered into with the Government for that amount;
1
Page 19
(3) any local area for the appropriation of the produce or products whereof a license or farm has been granted under rules made by the State Government under section 155, clause (e) or clause (f);
(4) any char or island thrown up in a navigable river which under the laws in force is at the disposal of the Government. (5) any land which is for the time being entered in the Deputy Commissioner’s register of revenue free estates as a separate holding;
(6) any land being the exclusive property of the Government of which the State Government has direct the separate entry in the registers of revenue—paying and revenue-free estates mentioned in Chapter I.
3(i) “Recorded proprietor”, “recorded land holder” “recorded sharer” and “recorded possession” mean any proprietor, land holder, sharer or possession, as the case may be, registered in the general registers prescribed in Chapter IV:
63. Liability for land-revenue etc. - Land- revenue payable in respect of any estate shall be due jointly and severally from all persons who had been in possession of the estate or any part of it during any
1
Page 20
portion of the agricultural year in respect of which that revenue is payable.
69. Attachment and sale of moveables (1) The Deputy Commissioner may, for the recovery of an arrear, order the attachment and sale of so much of a defaulter’s moveable property as will as nearly as may be defray the arrear.
(2) Every such attachment and sale shall be conducted according to the law for the time being in force for the attachment and sale of moveable property under a decree of a Civil Court, subject to such modifications thereof as may be prescribed by rules framed by the State Government for proceedings under the Assam Land and Revenue Regulation.
(3) Nothing in this section shall authorise the attachment and sale of necessary wearing apparel, implement of husbandry, tools of artisans, materials of houses and other buildings belonging to and occupied by agriculturists, or of such cattle or seed-grain as may be necessary to enable the defaulter to earn his livelihood as an agriculturist.
70. When estate may be sold - When an arrear has accrued in respect of a permanently-settled estate or of an estate in which the settlement-holder has a permanent, heritable and transferable right of use and occupancy, the Deputy Commissioner may sell the estate by auction: Provided that —
2
Page 21
(1) Except when the State Government by general order applicable to any local area or any class of cases, or by special order, otherwise direct, an estate which is not permanently-settled shall not be sold unless the Deputy Commissioner is of opinion that the process provided for in section 69 is not sufficient for the recovery of the arrear;
(2) If the arrear has accrued on a separate account opened under Section 65, only the shares or lands comprised in that account shall in the first place be put up to sale; and, if the highest bid does not cover the arrear, the Deputy Commissioner shall stop the sale, and direct that the entire estate shall be put up for sale at a future date, to be specified by him; and the entire estate shall be put up accordingly and sold;
(3) No property shall be sold under this section — (a) For any arrear which may have become due in respect thereof while it was under the management of the Court of Wards, or was so circumstanced that the Court of Wards might have exercised jurisdiction over it under the law for the time being in force; or (b) For any arrear, which may have become due while it was under attachment by order of a revenue authority.
72. Notice of sale (1) If the Deputy Commissioner proceeds to sell any
2
Page 22
property under Section 70, he shall prepare a statement in manner prescribed, specifying the property which will be sold, the time and place of sale, the revenue assessed on the property and any other particulars which he may think necessary.
(2) A list of all estates for which a statement has been prepared under sub- section (1) shall be published in manner prescribed, and the copy of the statement relating to every such estate shall be open to inspection by the pubic free of charge in manner prescribed.
(3) If the revenue of any estate for which a statement has been prepared under sub-section (1) exceeds five hundred rupees, a copy of the statement shall be published in the official Gazette.
74. Sale by whom and when to be made (1) Every sale under this Chapter shall be made either by the Deputy Commissioner in person or by an officer specially empowered by the State Government in this behalf.
(2) No such sale shall take place on a Sunday or other authorised holiday, or until after the expiration of at least thirty days from the date on which the (list of estates) has been published under section 72.
Rules
2
Page 23
133. Notices of demand under section 68 of the Regulation shall ordinarily be issued by, and the signature and seal of, the following officers:— (a) By the Deputy Commissioner with respect to all estates situated within the Sadar Subdivision of a district and not included within the limits of any tahsil or mauza. (b) By the Subdivisional Officer with respect to all estates situated within the limits of a mufassil sub-division, and not included within the limits of any tahsil or mauza. (c) Tahsildar with respect to all estates situated within the limits of this Tahsil, or by the Sub-Deputy Collector or other officer invested with the power under section 68 of the Regulation.
134.A notice of demand under rule 132 shall be served by delivering to the person to whom it is directed a copy thereof attested by the Revenue Officer who issues it, or by delivering such copy at the usual place of abode of such person to some adult male member of his family or, in case it cannot be so served, by pasting such copy upon some conspicuous part of the usual or last known place of abode of such person. In case such notice cannot be served in any of the ways hereinbefore mentioned it shall be served in such way as the officer issuing the notice may direct.
2
Page 24
135. Sale proclamation - The statement and list of estates to be prepared under section 72(1) and (2) of the Land and Revenue Regulation, in respect of property to be sold under section 70, shall be prepared in the language of the district and may, if the Deputy Commissioner thinks fit be recorded in a book prepared for this purpose, to be called the sale Statement Book. When published in the Gazette, the statement shall also be published in the vernacular of the district and in English.
136. Publication of list of estates - The list of estates referred to in the foregoing rule shall be published –
(a) In the Court of the Revenue Officer by whom it has been prepared; (b) At the office of the Sub-Deputy Collector in whose circle the estate is situated (c) At the office of the Tahsildar or house of the mauzadar within whose tahsil or mauza defaulting estate lies; and (d) Where gaonburas are employed, on the signboard of the gaonbura within whose charge the defaulting estate falls; (e) At the offices of the Gaon Panchayat and the Anchalik Panchayat.
136A. Serving of sale statement - The sale statement mentioned in rule 135 shall be served under subsection (4) of section 72 of the Regulation on the defaulter or, if he can not be found, it shall be pasted on a conspicuous part of the estate.
2
Page 25
141. Purchase of defaulting estates by the State Government –When a defaulting estate is put up for sale for arrears of revenue due thereon, if there be no bid, the Revenue Officer conducting the sale may purchase the estate on account of the State Government for one rupee or, if the highest bid be insufficient to cover the arrear due, may purchase the estate on account of State Government at the highest amount of bid. 154. Order to sell property - Should the defaulter, after attachment of moveable property, still fail to pay in the arrear with costs, the Deputy Commissioner or Sub-divisional Officer shall, on receiving a report to that effect from the mauzadar, issue an order to the Nazir, to sell the property attached if the arrear is not paid before the date fixed for sale. The mauzadar’s report under this rule shall be stamped with court-fee stamps equivalent to the process fees required by the rules issued under section 155 (b) of the Regulation.
155. Sale defaulting estates - If the mauzadar is of opinion that the process provided for in these rules is not sufficient for the recovery of the arrear, he may, if the arrear has accrued in respect of an estate in which the settlement-holder has a permanent heritable and transferable right of use and occupancy, apply to the Deputy Commissioner to order the attachment under section 69A, or the sale of the estate itself, subject to the provisions of
2
Page 26
section 74 of the Land and Revenue Regulation: Provided the arrear has accrued not earlier than in the two revenue years referred to in the provisions to rules 152 and 156 and, where action under section 69 of the Assam Land and Revenue Regulation is taken by or at the instance of the mauzadar, the application is made within three months of the termination of the proceedings under section 69.”
21. After setting out the relevant provisions of
the Regulation, which essentially deals with the
sale of land, it is now apposite to first reproduce
the relevant finding of the Board which held the
auction sale of estate/land as being illegal and not
in conformity with the procedure prescribed in the
Regulation.
“The case record shows that prior to the sale of the land, attempt was made for recovery of arrears through attachment and sale of movables. But it has been denied by the appellants that any such attempt was actually made. The Jarikarak stated that he had gone to the residence of the defaulter but he failed to serve the notice and for that reason he hanged the notice in the office of the mauzadar. He also stated that he failed to recover the
2
Page 27
arrear as the defaulters were not found and other members of the family were not willing to make the payment. The report of the Jarikarak was not properly endorsed by any witness. The attachment and sale of movables is required under the note below Rule 147 to be witnessed by at least two respectable persons of the locality. But the report of the Jarikarak was not endorsed by such persons and nothing was stated by him regarding attachment and sale of movables. Therefore, the authenticity of the report on attempts made by the Jarikarak for realization of the arrears through attachment of movables is doubtful. Further, it is also seen that the notice was not duly served in the (illegible) officer. The service of the notice, therefore, cannot be regarded as being adequate and properly done.
After perusal of the sale record, it is also seen that there was procedural irregularity at the time of holding the auction sale. The Jarikarak had stated that no bidder was found at the time of holding the auction sale. But the report of the Jarikarak was not endorsed by any witness. All these would raise some suspicion as to the authenticity of holding the auction sale. As such the sale cannot be regarded as being done in full conformity with the provisions of the Rule. Therefore, injustice has been caused to the pattadars of the land in question.
2
Page 28
The total area of land in question is 59 bighas 1 Katha 14 leachas, the market Value of which is over fifty Iakhs rupees. Therefore, the sale of the said land for a sum of Rs. 732.00 has definitely caused great hardship to the Appellants/Petitioners who are the actual pattadar of the land in question.
I am, therefore, fully satisfied that the sale has caused injustice as well as hardship to the Appellants/Petitioners. The sale, therefore, deserves to be set aside.
Under Executive Instruction No. 133 annulment is to be resorted to only as an alternative to other means of realization through attachment and sale of movables as well as sale of the estate and when all these fail or are held to be in effective then only the provision for annulment can be resorted to. Again after annulment not only that the record correction is to be made but also steps should have been taken under Rule 150 of the Rules under the Regulation after issuing notice to the pattadars to hand over possession. This was also apparently not done. In the parawise comments submitted by the learned Addl. Deputy Commissioner, Kamrup nothing in detail has been stated in support of the sale and the annulment of settlement.
In view of the above discussions, the impugned order of sale and annulment of settlement, can not be allowed to sustain. Accordingly, the impugned order of sale
2
Page 29
dt. 28.6.77 is set aside and the endorsement making correction of the land records as made on 29.6.78 is struck down. The patta shall be restored to the Appellants pattadars and the land be restored on payment of the arrears revenue and other dues as usual as per law. It also appears from the records that after the order of sale and annulment of settlement by the Deputy Commissioner, Kamrup, land measuring 40 Bighas, out of the total land in question, have been acquired and transferred by the Govt. of Assam to Indian Oil Corporation (Assam Oil Division) and the said Corporation has already paid necessary compensation for the said land and occupied the land on possession being handed over by the authority concerned. It also appears that there were tenants on the land transferred to Indian Oil Corporation and their share of compensation was already paid keeping the balance amount of compensation for the Pattadars. During the course of hearing of this appeal, learned advocate for the Appellants has submitted that the Appellants will be satisfied if they receive the compensation money instead of their land already transferred to the Indian Oil Corporation. As the compensation money has already been paid by the Indian Oil corporation and the same is kept in the Govt. (illegible) after working payment of the share of the compensation money may be paid to the Appellant and the land will remain with the Indian Oil Corporation.”
2
Page 30
22. The aforesaid finding of Board was reversed
and set aside by the High Court in its writ
jurisdiction in the impugned order for sustaining
the auction sale. It is also apposite to reproduce
the finding of the writ court infra.
“An order of attachment of movable property was issued on 18.11.1976 for recovery of land revenue to the extent of Rs. 731.70, due from the pattadars Shri Suren Ram Phukan and Shri Prabin Ram Phukan. The aforesaid order was sought to be delivered to the defaulters but the same could not be executed and the process server submitted a report to the effect that the defaulters were in different places and, therefore could not be contacted and their legal heirs/representatives so contacted, had submitted that they do not know anything in the matter. The aforesaid endorsement of the Process Server was recorded in the presence of the two witnesses including a Gaonburah. On the said report, the Mouzadar, who had issued the order of attachment of moveable property, had recorded a note to the effect that even if 'Moveable' (appears to be wrongly recorded as immovable) is sold, nothing would accrue and, therefore, the revenue should be realized by auction sale of the land. Thereafter, it appears that the statement/list contemplated under
3
Page 31
Section 72 of the Regulation was prepared mentioning 21.6.1977 as the date on which the estate will be sold. The aforesaid list/statement could not be served on the defaulter in spite of 3-4 attempts. The mother and other relatives of the defaulters refused to accept the same and thereafter, a notice was pasted on the wall of the house of the defaulters in presence of neighbours as witnesses and the copy of the notice was also published in the office of the sub—Deputy Collector, Mouzadar and Gaonburah. Thereafter, it would appear from the order-sheet of the proceedings of sale that the sale was conducted on 21.6.1977, 22.6.1977, 23.6.1977, 24.6.1977, 25.6.1977, 26.6.1977 and 28.6.1977, a bid of one rupee was offered on behalf of the State Government, which was accepted by the officer conducting the sale. The amount of one rupee was deposited by a Treasury Challan dated 17th/18th August, 1977…..”
23. Having examined the entire controversy in
the light of relevant Sections and the Rules, we
are unable to persuade ourselves to concur with
the finding of the High Court as, in our considered
opinion, the High Court should not have interfered
with the finding of the Board which rightly held
3
Page 32
that auction conducted to recover the outstanding
arrears of land revenue (Rs.731.70) from the
appellants was not made in conformity with the
procedure prescribed in the Regulation and was,
therefore, bad in law. This we say so on our
independent examination of the entire case for
more than one reason stated infra.
24. In our considered opinion, in the first place,
the well reasoned finding of fact recorded by the
Board in favour of the appellants (landholders) on
the question of non-service of notice of the
demand for payment of defaulted amount of
arrears of land revenue of Rs. 731.70 and non-
service of notice of sale of land was binding on the
writ court, being a pure finding of fact and more
so, when it was based on proper appreciation of
facts. Secondly, the High Court exceeded its
3
Page 33
jurisdiction when it proceeded to examine this
factual issue like an appellate court and reversed
the factual finding. Thirdly, assuming that the
High Court could go into this issue in its writ
jurisdiction, yet in our opinion, mere perusal of the
finding of the High Court would go to show that no
proper service much less effective service of
notice of demand and sale of land was made on
the appellants. In other words, reading of
reasoning and discussion of the High Court cannot
allow us to reach to a conclusion that the
appellants were duly served of the notices. Rather
it would take us to a conclusion that the appellants
were not properly served. Fourthly, the writ court
did not assign any cogent reason as to why the
factual finding of the Board on this issue was
wrong and hence, call for interference. Fifthly,
3
Page 34
when we, on our part, have examined the issue of
notice independently in the light of the
requirement of Section 72 read with Rules 133,
134, 136 and 136-A which deals with the mode of
effecting service on the defaulting landholder,
then we have no hesitation in recording a finding
that no notice was served on the appellants as
contemplated under the aforementioned
provisions.
25. It is an admitted fact that there was no
personal service of any notice effected on the
appellants. It is on record that the process server
said that he, therefore, displaced the notice in the
office of Mauzadar. There is no evidence much
less a conclusive one to prove that when the
appellants could not be served personally then
whether notices were served on any adult member
3
Page 35
of the appellants’ family and, if so, what were the
names of those adult members, what was their
age, their relation with the appellants, whether
they were living in the same house in which the
appellants were residing. Whether notice was
served in presence of any witness residing in area
and who were those witnesses and why these
details were not mentioned in the service report.
In any case, in the absence of this material
evidence, it was rightly held by the Board that no
notice of either demand or/and sale of land was
served on the appellants and the High Court ought
not to have interfered with this finding of fact for
holding otherwise.
26. In our considered opinion, there lies a
distinction between non-service of notice and a
notice though served but with some kind of
3
Page 36
procedural irregularities in serving. In the case of
former category of cases, all consequential action,
if taken would be rendered bad in law once the
fact of non-service is proved whereas in the case
of later category of cases, the consequential
action, if taken would be sustained. It is for the
reason that in the case of former, since the notice
was not served on the person concerned he was
completely unaware of the proceedings which
were held behind his back thereby rendering the
action “illegal” whereas in the case of later, he
was otherwise aware of the proceedings having
received the notice though with procedural
irregularity committed in making service of such
notice on him. If a person has a knowledge of the
action proposed in the notice, then the action
taken thereon cannot be held as being bad in law
3
Page 37
by finding fault in the manner of effecting service
unless he is able to show substantial prejudice
caused to him due to procedural lapse in making
service on him. It, however, depends upon
individual case to case to find out the nature of
procedural lapse complained of and the resultant
prejudice caused. The case in hand falls in former
category of case.
27. In our considered opinion, therefore, it is
mandatory on the part of the State to serve a
proper notice to a person, who is liable to pay any
kind of State's dues strictly in the manner
prescribed in the Regulation. It is equally
mandatory on the part of the State to give prior
notice to the defaulter for recovery of dues before
his properties (moveable or/and immoveable) are
3
Page 38
put to sale in the manner prescribed in the
Regulation.
28. It is a settled principle of law that no person
can be deprived of his property or any interest in
the property save by authority of law. Article 300-
A of the Constitution recognizes this constitutional
right of a person, which was till 1978 recognized
as the fundamental right of a citizen. Indeed
whether fundamental or constitutional, the fact
remains that it has always been recognized as a
right guaranteed under the Constitution in favour
of a citizen/person and hence no person cannot be
deprived of this valuable right which Constitution
has given to him save by authority of law.
29. In the case in hand, we find that the
appellants were deprived of the land in question
without following the procedure prescribed in law
3
Page 39
because the so-called auction was conducted by
the State behind their back and without their
knowledge. The action of the State was thus
clearly violative of the appellants’ Constitutional
right guaranteed under Article 300-A and hence
such action can not be sustained in law.
30. In our considered opinion, the action taken by
the State for realization of arrears of land revenue
dues from the appellants is also bad in law yet for
another reason which neither the Board nor the
High Court took note of it.
31. Section 69 empowers the Deputy
Commissioner to recover the arrears of land
revenue payable by any landholder by directing
attachment and sale of so much of his moveable
property as may be necessary to satisfy the dues.
3
Page 40
32. We, however, find from the record that no
attempt was made by the Deputy Commissioner to
attach the appellants’ any moveable property for
realization of dues and even if he claimed to have
made any such attempt yet there is nothing on
record to show as to why he was compelled to
take recourse to Section 70 for sale of land in
question. Indeed such action on the part of Deputy
Commissioner was in contravention of Section 70
(1) because no auction of estate (land) could be
made unless he was of the opinion that process
provided in Section 69 was not sufficient for the
recovery of entire arrears. In other words, it was
necessary for the State to have justified their
action by showing that sincere attempt was made
to first sell the appellants’ moveable as per the
procedure prescribed in Section 69 and when it
4
Page 41
was noticed that it was not possible to recover the
arrears by sale of all attached moveables, the
extreme step of recovery of arrears by sale of
estate was taken by taking recourse to the
procedure prescribed in Section 70.
33. There is nothing on record to show as to why
the extreme step to recover a small sum of
Rs.731.70 paisa was required to be taken for sale
of the estate under Section 70 and why arrears of
Rs.731.70 paisa could not be recovered by sale of
any moveable belonging to the appellants. It is
inconceivable to think that the appellants did not
own moveable which would not have even fetched
Rs.731/- on sale or would have fetched less
amount.
34. We are, therefore, of the considered opinion
that the auction held by the Deputy Commissioner
4
Page 42
for realization of dues by sale of land in question
under Section 70 was bad in law being held in
contravention of Section 70 (1) ibid and was thus
not sustainable.
35. In our considered opinion there is yet another
legal infirmity in conducting of the auction by the
Deputy Commissioner for realization of dues which
renders the auction sale bad in law.
36. It is a trite law that taking recourse to auction
proceedings for sale of defaulter’s immovable
property for realization of the State dues is an
extreme remedy. It is also discernable in the facts
of this case when we read Sections 69, 70 and
Rule 155. Time and again this Court has held that
once the State take recourse to a remedy of
disposing of the defaulter’s property by means of
public auction as provided in Regulation for
4
Page 43
realization of State dues then its dominant
consideration should always be to secure the best
price for the property put to sale. This can,
however, be achieved only when there is
maximum public participation in the process of
sale and every one has an opportunity to offer the
best offer to purchase the property. The reason is
that the public auction held after adequate
publicity ensures participation of every person
interested in purchasing the property and in that
process, the State and, in turn, the defaulter gets
the best price of his property which was put to
auction sale. [See Chairman and Managing
Director, SIPCOT, Madras and Others vs.
Contromix Pvt. Ltd., (1995) 4 SCC 595 and
Haryana Financial Corporation and Another
4
Page 44
vs. Jagdamba Oil Mills and Another, (2002) 3
SCC 496]
37. Keeping this well settled principle in mind
and applying the same to the facts of this case, we
find that the auction was not held by the Deputy
Commissioner in conformity with the aforesaid
principle. It seems that the auction was held only
on papers to show compliance of the Rules to
enable the State to invoke Rule 141 and acquire
the land for Rs.1/- as provided therein. As a matter
of fact, no efforts were made by the State to file
any document to prove that adequate publicity
was given on all adjourned dates and despite such
publicity no bidder participated in the auction. It is
indeed inconceivable that a land in Kamrup district
when put to auction sale despite publicity would
go unnoticed and no person would come forward
4
Page 45
to bid for such land. It appears to us that the State
had decided to allot the land to the IOC, who were
interested to use the land for their own purpose
and hence recourse to remedy of disposal of land
by auction as provided in Section 70 followed by
invocation of Rule 141 was taken to acquire the
land on payment of Rs.1/- by the State and then
its major part was allotted to the IOC on payment
of yearly premium and further payment of
compensation by the IOC.
38. In our considered opinion, therefore, the
auction held by the State was neither legal and
nor in conformity with the requirements contained
in the Regulation. It was, therefore, rightly set
aside by the Board.
39. In the light of the foregoing discussion, the
appeals succeed and are hereby allowed. The
4
Page 46
impugned judgment is set aside and that of the
Board restored. As a consequence, the writ appeal
and the writ petition filed by the State stand
dismissed.
40. We direct the State (respondent no. 1) to pay
the amount of compensation deposited by the IOC
for the land allotted to them to the appellants
along with interest on the said amount at the rate
of 6 % payable from the date of deposit till paid to
the appellants. The State is also directed to
restore the possession of the remaining land, i.e.,
the land excluding the land allotted to IOC to the
appellants within three months after making
proper verification and demarcation of the land in
question.
....................................J. [M.Y. EQBAL]
4
Page 47
…...................................J. [ABHAY MANOHAR SAPRE]
New Delhi; December 11, 2014.
4
Page 48
4