P L D 1962 Dacca 505 (PLP)

MURSHED, J.‑The petitioner, Hassainuddin Ahmad, is one of the six auction‑purchasers of certain properties put to a sale cinder the provisions of the Public Demands Recovery Act, 1913 can the 15th of June 1960, at Faridpur in pursuance of Certificate Case No. 1481‑D of 1957‑

58. The said certificate case was started against the certificate debtors, one Bimal Chandra Thikdar and others, for arrears of land revenue, cess and other dues mounting to Rs. 2,686 and odd some sum. Subsequently ten other certificate debts against the same certificate debtors were amalgamated with the dues of the said certificate case No. 1481‑D of 1957‑58 and the total demand came to Rs. 13,460 and odd. The properties of the certificate debtors were attached, under a sale proclamation issued under rule 46 of Schedule II to the Public Demands Recovery Act. It is alleged that the sale proclamation was duly and legally served upon the lands affected by the proclamation in the presence of witnesses. The sale was fixed for 30‑5‑1960, but eventually it took place on the aforesaid 15th of June 1960. The petitioner and his co‑sharers in the auction‑purchase were jointly the highest bidders and they purchased the said properties for a sum of Rs. 5,700 out of which they paid a sum of Rs. 1,500 on that very date and the balance was made payable by them on the 30th of June 1960. After the balance of the price had been paid off, the Certificate Officer fixed 16‑8‑60 as the date for confirmation of the sale. It is alleged that the said certificate debtors filed an application under section 23 of the Public Demands Recovery Act before the Certificate Officer for setting aside the sale on various grounds. While the application of the certificate debtors was still pending, one Sukur Mahamood, who has been impleaded as respondent No. 5 in this application, submitted an application to respondent No. 1, Additional Collector, Revenue, Faridpur, on the 11th of August 1960, praying that the said sale might be set aside on various allegations. In his application he expressed his willingness to buy the said auction purchased properties for a sum of Rs. 16,

000. As directed by respondent No. 1, he further deposited a sum of Rs. 5,700 as security deposit upon his offer to purchase the properties in question at the said sum of Rs. 16,

000. A notice was issued upon the present petitioner as well as others, and on hearing the parties, the said Additional Collector set aside the sale by which the petitioner and others purchased the properties on the 15th of June 1960. He further directed the Certificate Officer to put the properties to sale again after issuing fresh proclamation and upon giving notice to the said Sukur Mahamood, the applicant before him. Before respondent No. 1, namely, Additional Collector of Revenue, Faridpur, the petitioner took various objections and one of such objections was that the applicant, Sukur Mahamood, had no locus standi to make such an application inasmuch as he was a complete stranger to the properties in question, having no interest whatsoever therein. The Additional Collector of Revenue thereupon took the view that he could act on informa tion supplied by the said Sukur Mahamood and passed the final order on the 13th of March 1961, purporting to act under section 53 of the said Act. Against the aforesaid order passed by the Additional Collector of Revenue, the petitioner filed a revision petition before the Commissioner of the Dacca Division under section 53 of the Act. The application was heard and disposed of by an Additional Commissioner, namely, respondent No. 2, who rejected the petitioner's application, holding that under the said section 53 the Additional Collector of Revenue could suo motu revise any order passed by the Certificate Officer. Thereafter the petitioner filed another revisional application under the aforesaid section before the Member, Board of Revenue, who also rejected the said application, upholding the decision of the respondent No. 2; the Additional Commissioner, Dacca Division. Subsequently the petitioner filed the present application and obtained a Rule nisi from this Court calling upon the respondents Nos. 1. to 5 to show cause why the impugned orders passed by respondents Nos. 1, 2 and 3 should not be quashed. In the aforesaid petition the petitioner has asserted that there was no irregularity of procedure or any fraud in the course A the proceedings which led to the salt; by which the petitioner and his co‑sharer purchased the said properties. In the affidavit‑in‑opposition filed on behalf of the respon dents the aforesaid allegation has been traversed. For the purpose of deciding the present Rule, it is unneces sary to discuss at any length the various other averments and statements made in the petition as well as those which have been made in the affidavit‑in‑opposition. The main point, which has been ably argued before us by Mr. Ishtiaq Ahmad, is that respondent No. 1, the Additional Collector of Revenue, Faridpur had no power to pass the impugned order under section 53 of the Public Demands Recovery Act under which he had purported to make the said order. It has been argued before us that, at best, the impugned order passed by the Additional Collector of Revenue, Faridpur, could be described as having been made suo mote under the said section

53. It has been contended that neither the Additional Collector nor respondent No. 2, the Additional Commissioner, Dacca Division, nor even the respondent, No. 3, Member, Board of Revenue, East Pakistan, has after a sale had already taken place, any power under the said section 53, to set 4side a sale or to revise suo motu an order by the Certificate Officer directing a sale. Mr. Ishtiaq Ahmad, appearing for the petitioner, has urged that the Public Demands Recovery Act, 1913, has with meti culous care, specified the various remedies available with regard to the issuance of a sale certificate, its execution and the setting aside of the sale. He has argued that the said Act is a complete Code in itself. Part II of that Act deals with the filing of the certificate and the hearing of objections thereto. Part III deals with execution of certificates and how sales are to be effected. Subsection (2) of section 20 in Part III provides: "Where immovable property is sold in execution of a certi ficate, and such sale has become absolute, the purchaser's right, title and interest shall be deemed to have vested in him from the time when the property is sold, and not from the time when the sale becomes absolute." Sections 22, 23 and 24 of Part III specify how a sale can be set aside. Section 25 (1) provides as follows: "Where no application is made under section 22, section 23 or section 24, or where such an application is made and disallowed, the Certificate Officer shall make an order con firming the sale, and thereupon the sale shall become absolute." Sections 34, 35, 36 and 37 of Part IV specify as to how a certificate can be cancelled or modified or sale set aside by a Civil Court. Section 51 of Part VI specifically provides for appeal and section 52 bars a second appeal. Then comes section 53 under which the impugned orders are purported to have been made Section 53 reads thus: "The Collector may revise any order passed by a Certificate Officer, Assistant Collector or Deputy Collector under this Act; the Commissioner may revise any order passed by a Collector under this Act ; and the Board of Revenue may revise any order passed by a Commissioner under this Act." Thus, on an examination of the scheme of the Public Demands Recovery Act, it has been contended that the Collector, the Commissioner of the Board of Revenue has no power suo motu to set aside a sale after a certificate has been executed. Mr. Ishtiaq Ahmed has contended that section 53 relates to the exercise of revisional power by the Collector on applications of parties who are competent to make such applications and no such application can be made by a person who cannot be described as one having any "interest" in the property, which has been auction‑purchased. On the aforesaid ground it has been further contended that respondent No. 5, Sukur Mahamood, who is a complete outsider in respect of the properties which have been auction‑purchased, is not competent to maintain such an application and the Additional Collector of Revenue has no jurisdiction to set aside the sale on the motion of the said respondent No.

5. It is clear that in this case the respondent No. 1, Additional Collector of Revenue, purported to act suo mote under section 53 of the Public Demands Recovery Act, although on the infor mation given by respondent No. 5, Sukur Mahamood. Upon investigations made by him, he set aside the sale, which was not confirmed under section 25 of the said Act. Furthermore, he accepted the deposit of 'the security money from the said respondent No.

5. The main question, which confronts us, therefore, is, whether the Additional Collector of Revenue or the Additional Commissioner or the Member, Board of Revenue, East Pakistan, could act suo motu under section 53 of that Act and made an order setting aside a sale, as has been done in this case. For this proposition, Mr. Ishtiaq Ahmad has relied upon a decision of a Division Bench of this Court in the case of Mansur Ali v. The Member, Board of Revenue, East Pakistan (11 D L R 412). In the aforesaid case certain properties belonging to the certificate‑debtor were put up for sale. One Niranjan Datta filed a petition for permission to deposit the certificate dues with a view to stop the sale. As the said Niranjan Datta had no interests in the properties under sale, the Certificate Officer refused to accept the deposit and the sale was held on the 10th of June 1957. One Mansur Ali auction‑purchased the said properties. Niranjan Datta preferred an appeal against the order of the Certificate Officer refusing to accept the deposit and the said appeal was dismissed by the Collector on the 18th of September 1957. Niranjan Datta then moved the Divisional Commissioner for revision of the order made by the Certificate Officer and the Commissioner rejected the said petition and confirmed the sale. Niranjan Datta having died, his heirs moved the Member, Board of Revenue, who, by his order dated the 26th of July 1958, set aside the sale. The auction purchaser moved the High Court and obtained a Rule from this Court for the issue of a writ of certiorari quashing the order passed by the Member, Board of Revenue. On behalf of the Member, Board of Revenue, reliance was placed on rule 50 (3) of Schedule II of the Public Demands Recovery Act, which runs thus: "Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) ape tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid to the Certificate Officer who ordered the sale." In that case it was held that a rule could not render nugatory the provisions of the main enactment itself. Akbar, J. (as he then was), in delivering the judgment of the Division Bench, has observed as follows: "It is thus clear that the certificate sale can only be set aside under sections 22 and 23 of the Act and not under the provisions of any rule. The learned Member of the Board of Revenue was, therefore, wrong in thinking that he had jurisdiction to set aside the certificate sale ever, though the provisions of section 22 were attracted to it." On the basis of the aforesaid observations, Mr. Ishtiaq Ahmed has contended that a certificate sale can only be set aside in the manner which has been provided in sections 22 and 23 of the Public Demands Recovery Act, and in no other way. From an order under section 22 there is no appeal, but against an order passed under section 23 an appeal lies under section 51 of the said Act. It has, therefore, been contended that the Additional Collector of Revenue, or the Additional Commissioner or the Member, Board of Revenue, has no jurisdiction to set aside the sale, on the application of a stranger, nor were they empowered to set aside the sale suo motu. Learned counsel has further relied on a decision of a Division Bench of the Calcutta High Court in the case of Sadhusaran Singh v. Panchdeo Lal (I L R 14 Cal.1,) in which it has been held that the only remedy of a person where a property has been sold in execution of a certificate issued under Bengal Act VII of 1880, and who has sustained substantial injury by reason of a material irregularity in publishing or conducting the sale, is by way of an appeal under section 2 of Bengal Act VII of 1868. He has also relied on the following observations made by the Court in the aforesaid case: "It seems to us that the words `in respect of sales in execution of decrees', do not include any proceedings instituted after the sale for setting it aside. We think, therefore, that only the provisions of the Civil Procedure Code up to the stage on which the auction sale is held, apply to an execution issued to enforce a certificate, and therefore the provisions of sections 311 and 312 are not applicable." Learned counsel next cited the case of Hazi Siddique v. Certi ficate Officer, Burdwan (A I R 1958 Cal. 14) in support of his contention. He has relied on the following passage (P. 18‑19) "It is clear from the terms of section 51 of the Act that what this section contemplates is that appeals from original orders made by a Certificate Officer lie to the Collector and appeals from original orders made by a Collector lie to the Commissioner and such appeals are to be preferred within 15 days and within 30 days respectively. Section 52 of the Act bars second appeals from orders of the Collector passed on appeals and section 53 deals with cases of revision of any order passed by a Certificate Officer or the Collector or the Commis sioner. It is well known that the scope of appeals and revisions is different. The revisional jurisdiction is more restricted and is narrower than the appellate jurisdiction. Furthermore, considering the setting in which the provisions of appeals and revisions find place in the Bengal Public Demands Recovery Act it appears that the scheme of the Act is that where the remedy by way of appeal is available that remedy should be pursued. It was not the object of the framers of the Act to allow concurrent or alternative remedies of appeal and revision to a party aggrieved by any order made under the Act. If it were so, then a party may always ignore the provisions for appeal as embodied in section 51 of the Act and can also ignore the bar of time prescribed for filing an appeal and then can file a petition for revision against the order complained of. I think that section 53 is a residuary section, which should be availed of in a case where no appeal lies. Both sections 51 and 53 are not happily worded and there is scope for confusion and misunderstanding. It appears to me that the intention of the Legislature was not to make the remedies concurrent or alternative. Section 51, which is the more specific provision was not intended to be overridden or nullified by section

53. The two sections of the Act have to be reconciled and to achieve such object the remedy of appeal has to be followed in the first instance where such remedy is available and it is only where it is not open to a party to prefer an appeal that the remedy by way of revision should be resorted to." Mr. Ishtiaq Ahmad has strenuously urged that if it is correct to say that an Assistant Collector could set aside a sale which had become absolute in terms of section 25 of the Public Demands Recovery Act at any time and at any stage and even behind the back of the parties, the absurdity of this will be evident from the fact that in the aforesaid circumstances it would be lawful for an Assistant Collector to set aside the sale of a property purchased by an innocent auction‑purchaser even five, ten or twenty years after such sale had become absolute. It was argued that reduction ad absurdum to hold that the Additional collector or for the matter of that either the Commissioner or the Member, Board of Revenue had such power in the exercise of his revisional jurisdiction, would lead to strange and shocking results. The Legislature could not have intended to make such a provision. He has also relied on a well‑known principle of construction of statutes that where the ordinary meaning of words would lead to absurd conclusion, Courts would not construe the same in a manner, which would lead to such strange result. It was argued by the learned counsel that the Additional Collector could exercise revisional jurisdiction both under section 50 and section 53 of the Public Demands Recovery Act prior to the property being sold. The argument advanced by the Learned counsel is attractive, and has a good deal of force in them. But a decision of the Judicial Committee of the Privy Council in the case of Babu Laliteswar Singh v. Mohunt Ram Kishen Das (10 C W N 969 (PC)) runs counter to it. We, therefore, propose to discuss this case at some length. The facts of that case were as follows: In April, 1892, on the occasion of the revaluation of estates under the Road Cess Act (Act IX of 1880) the Road Cess Deputy Collector of Durbhanga District issued a notice calling upon the plaintiff to furnish some jamabandi papers, and on the plaintiff's failure to do so, the Deputy Collector, purporting to act under the terms of that Act, imposed a fine of Rs. 1‑8‑0 per day from the first day of August 1892, until such compliance and directed that the sum of money representing the fine should be realised under sections 98 and 99 of the said Act in the manner provided by law for the realisation of Public Demands. Even tually a certificated was issued and, in execution thereof, the properties of the landlord concerned were put up for sale and were purchased by a third party who, on the 1st day of December 1893, filed a petition praying for a certificate of purchase and for a writ of delivery of possession. The certificate was duly granted and possession was given to him by the revenue authorities. On the 2nd day of January 1894, after more than sixty days from the date of the sale, the plaintiff filed an appeal to the Commis sioner of Patna Division, alleging, inter alia, that he had no knowledge of any of the proceedings, which were irregular, fraudulent, and collusive, and asking for the sale to be set aside. The Additional Commissioner, who heard the said appeal, held that apart from the question whether the appeal could be entertained, he had revisional power under Act VII of 1880, which was the relevant enactment with regard to recovery of public demands at that time, to set aside the sale. He, thereupon sent the case back to the Collector for investigation as to the allegation of fraud and irregularities. The defendant, namely, the deceased appellant then appealed to the Board of Revenue against the order passed by the Commissioner. The Board of Revenue held that by virtue of the powers of supervision and control given under section 24 of Act VII of 1880, the Commissioner as well as the Boa rd of Revenue had jurisdiction to interfere, in particular cases, by way of revision. On the 4th day of February 1896, the Commissioner, on receipt of a direction of further enquiries as to the irregularities in the procedure in execution, disposed of the case setting aside the sale as null and void, holding that, in view of the Board's decision it was unnecessary to hear the purchaser. While the appeal was pending before the Commissioner, the plaintiff instituted a suit in the Court of a Subordinate Judge, praying that the auction sale should be set aside as illegal and irregular. Certain issues were raised upon the pleadings; but subsequently the plaintiff filed copies of the orders passed by the Commissioner and Member, Board of Revenue, as stated above, and thereupon the Subordinate Judge framed a fresh issue to the following effect :‑‑ "Whether the order of the Board of Revenue, 'dated the 9th May, 1895, is valid and how it affects the sale." The Subordinate Judge held that the Commissioner and the Board of Revenue, under the revisional powers vested in them, could set aside the sale. The defendant then preferred an appeal to the Calcutta High Court, which dismissed the appeal and armed the judgment and decree of the Subordinate Judge. The defendant then preferred an appeal to His Majesty‑in‑Council. Sir Andrew Scoble, in delivering the opinion of the Board, has, after stating the facts of the case observed as follows: ‑ "it is necessary to look to that Act in order to ascertain the extent of the jurisdiction conferred upon the higher revenue authorities over the proceedings of their subordinate officers. This appears to be of the widest possible character. Sec tion 17 provides that `the Commissioner may in any case in which he thinks fit, revise any order passed by a Collector, or Deputy Collector or Assistant Commissioner, or Extra Assistant Commissioner'. In the opinion of their Lordships this applies to orders made after as well as before sales in execution of certificates issued under the Act. And Sec. 24 enacts that `all Collectors, Deputy Collectors, Assistant Com missioners, and Extra Assistant Commissioners shall, in the performance of their duties under this Act, be subject to the general supervision and control of the Commissioners of Divisions and the Board of Revenue': These extensive powers were no doubt given to prevent any abuse of authority under the extremely stringent and summary procedure authorized by the Act, and are, in their Lordships' opinion, amply sufficient to justify the orders of which complaint is now made. "Upon the second question, it is quite true that under section 12 of the Act a person who denies his liability to pay the amount for which a certificate has been made and filed against him, is allowed thirty days within which he may peti tion the Collector to set aside the certificate either in whole or in part; that thereupon the Collector must proceed to determine the liability of the petitioner; and that under section 16 an appeal from the Collector's order may be preferred within thirty days from the making of the order. But this was not the procedure under which the order now complained of was made. The Commissioner acted in the exercise of his revisional jurisdiction under section 17; and it would defeat the object of the Legislature if the periods of limitation applicable in ordinary cases were held binding upon him, when so acting." It is thus clear that, upon a construction of the aforesaid pro visions of section 17 of Act VII of 1880, which is almost identi cal with those of section 53 of the Public Demands Recovery, Act, 1913, the Judicial Committee of the Privy Council held that the Commissioner had the widest possible powers under the said section 17 to act suo motu and it was subject to no limitation. Furthermore, it was held that the Commissioner and the Member, Board of Revenue could, at any stage, revise any order made by the subordinate revenue officer or officers. It will also be noticed that the decisions of the Calcutta High Court as well as the deci sion of the Division Bench of this Court mentioned above do not specifically refer to the question as to what are the powers of the Collector or the Commissioner, or the Member, Board of Revenue with reference to section 53 of the Public Demands Recovery Act, particularly, on the question whether they could act suo motu in the exercise of their revisional jurisdiction. This question was not mooted before them and, therefore, the obser vations upon which Mr. Ishtiaq Ahmad relied cannot be treated as covering the point which is being agitated before us. On the contrary, the decision of the Judicial Committee of the Privy Council in Laliteswar Singh's case, covers the point. Mr. Ishtiaq Ahmed has subjected the judgment pronounced by the Privy Council to the following criticisms: ‑ (1) It does not take into account the scheme of the Act VII of 1880, which consists of 24 sections divided into two distinct and separate stages. The issue of certificate and various notices in respect thereof as also other matters incidental thereto having been dealt with upto section 15 of the said Act. Immediately thereafter section 16 reads as follows: ‑ "An appeal from any order of a Deputy Collector or Assistant Commissioner or Extra Assistant Commissioner may be preferred to the Collector within fifteen days, and an appeal from any original order of a Collector may be preferred to the Commissioner within thirty days after the making of such order respectively. Pending the decision of such appeal; execution may be stayed, if the appellate authority so direct, but not otherwise." Section 17, which is the main section upon which reliance was placed by the Judicial Committee of the Privy Council, reads as follows:‑ "There shall no appeal, as of right, lie from any order of a Collector passed on appeal from an order of a Deputy Collector or Assistant Commissioner or Extra Assistant Commissioner; but the Commissioner may, in any case in which he thinks fit, revise any order passed by a Col lector or Deputy Collector or Assistant Commissioner or Extra Assistant Commissioner." Learned counsel has argued that sections 16 and 17 must be read together as they specifically refer to each other, and in the context of the preceding section he has argued that there is a terminus a quo at section

17. This is the conclusion of the first stage, namely, the issuance of certificate and the filing thereof which, would amount to the passing of a "decree" by the Court. The next stage starts immediately there after, namely, how the certificates to be enforced. Section 19 reads thus: ‑ "Such certificate may be so enforced and executed by all or any of the ways and means mentioned and provided in and by the Code of Civil Procedure for the enforcement and execution of decrees for money, and all the practice and procedure provided by the said Code of Civil Procedure ...... It has been argued that Act ,VII of 1880 contemplates a completely different treatment, so far as a sale and its setting aside are concerned. That it is so receives support from the decision of the Calcutta High Court in Sadhusaran Singh's case. (2) Furthermore, if section 17 of Act VII of 1880 must be construed as referring to the orders made by revenue officers under the preceding sections, that is, during a stage prior to the execution of the certificate, namely, of the sale and the setting aside thereof. (3) The vesting of the property absolutely in the purchaser takes place by operation of law and not by any specific order of a revenue officer. Therefore, by purporting to set aside or revise an order the operation of law cannot be set at naught. So far as section 16 of Act VII of 1880 is concerned, it is obvious that there is a provision for appeal against an order of a Deputy Collector, or Assistant Commissioner or Extra Assistant Commissioner. But the order mentioned therein obviously refers to an order passed at a pre‑execution stage. A completely different provision would apply against the sale in execution of a certificate. The remedy against an order passed therein would be under section 19. and not under section

16. In this context, the words "any order" must receive the same interpretation as the words "any order" would receive in section

16. We have given our anxious considerations to the argu ments advanced by the learned counsel for the petitioner as also to the construction of section 53 of the Public Demands Re covery Act. We can see the force of the contention of the learned counsel. But we cannot ignore the fact that an autho ritative pronouncement has been given on this point 3y the Judicial Committee of the Privy Council more than fifty years ago, and there has been no dissent from such an interpretation of the relevant provisions of law, upon such decision of the Privy Council, a uniform practice having grown up in the Revenue Department of thei6jovernment for over fifty years in pursuance of the aforesaid decision, it would not be permissible for us to depart from an interpretation which has held the field for about half a century. Therefore, in accordance with the ratio decidendi in the aforesaid case of Laliteswar Singh, we hold that the Additional Collector of Revenue, Faridpur (respondent No. 1) had the power under section 53 to set aside the sale of the properties which the petitioner had auction‑purchased. In these circumstances, the impugned orders passed by respondents Nos. 2 and 3, Commissioner of Dacca Division, and Member, Board of Revenue, East Pakistan, respectively, are also valid. The rule is, therefore, discharged without any order as to costs. We would like to point out that in India section 53 of the Public Demands Recovery Act has been amended by adding subsection (2) as follows: ‑ "(2) The period of limitation for an application for revision under this section shall be thirty days from the date of the order revision where of is applied for, excluding the time occupied in obtaining a copy of the order: "Provided that such an application for revision may be admitted after the period aforesaid if the applicant satisfies the Collector, the Commissioner or the Board, as the case may be, that he had sufficient cause for not making the appli cation within the period." Thus a period of limitation has been provided, and it will also appear that under the law as amended in India a revisional power can be exercised only at the instance of parties within such period as prescribed therein. A similar amendment may be usefully made in Pakistan. We would also observe that in this case the order passed by the Additional Collector of Revenue directing acceptance of security deposit of respondent No. 5, Sukur Mahamood, and also directing that, in case of failure of the said respondent No. 5 to purchase the property in question, the said security deposit would be forfeited is not warranted by law. It is also difficult to see how the Additional Collector can enforce his order to the effect that the said sum of money deposited by respondent No. 5 will stand forfeited, if the said respondent No. S, does not purchase the said property. In view of the fact that the respondent No. 5, as has been rightly‑ described by Mr. Ishtiaq Ahmed, is a rank outsider, having, no interest in the property whatsoever, the order passed by the Additional Collector is all the more incongruous, SALAHUDDIN AHMED, J.‑I agree. K. B. A Rule discharged.