Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 662-663 of 2008, Judgment Date: Dec 11, 2014

                                                                  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.  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  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
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
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 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  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 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 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.
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.
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 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 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  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 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;

(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 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 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; 

(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  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 -

(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
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

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.


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.

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 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
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.

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  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." 

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 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 of?cer 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
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  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,  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 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
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 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 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  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.
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 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 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
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 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
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 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]


                                     ......................................J.
                                                   [ABHAY MANOHAR SAPRE]
New Delhi;
December 11, 2014.





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