P L D 1960 Dacca 801 (PLP)

4. The trial Court dismissed the suit holding that touzi ledger, Exh. 5, shows 12th January and 28th March as the latest dates of payments of arrears, that the sale held on 26th June, 1950, was not without jurisdiction in view of the provisions of section 3 of the Revenue Sale Law, and, in view of the fact that notices under sections 6, 7 and 13 of the Revenue Sale Law were issued, as it appears from the certified copies of those notices, Exh. A series, filed in the case, and the evidence of D. W. 1 proves that notices under sections 6, 7 and 13 were issued, the evidence of the plaintiffs, who were not at home from February, 1950 to December, 1950, regarding the alleged non -service of notices under those sections, are of little value. The trial Court further held that the plaintiffs did not prefer any appeal to the Commissioner, and that the present suit which was filed without an appeal to the Commissioner is barred under section 33 of the Revenue Sale Law, and is not maintainable under the law.

5. On appeal, the learned Subordinate Judge held that the sale without serving notice on any of the proprietors under section 6 of the Revenue Sale Law is without jurisdiction, and, as such, it is void ab initio, that, as the sale is void in law, section 33 of the Revenue Sale Law would have no application, and that an appeal before the Commissioner for setting aside of such a sale would not be a condition precedent to give juris diction to the Civil Courts for entertaining a suit for annulment of such a sale, and he set aside the sale. Hence this appeal by the defendant, the Province of East Bengal.

6. It is contended by Mr. Jane Alam, the learned Assistant Government Pleader, that the Court of Appeal below is absolutely wrong in holding that the sale being void was without jurisdiction, and, as such, section 33 of the Act would have no application. On the other hand, Mr. Roy for the plaintiffs‑respondents contends that issue of notices on the proprietor under section 6 is a condition precedent to the holding of the sale, as the section provides. "No sale shall take place until the officer conducting the sale has satisfied himself that the notification of sale has been duly published, and the notices of sale have been sent to pro prietors by registered post . . . . . . " Section 33 provides as follows: "No sale for arrears of revenue . . . . . shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of ; and no such sale shall be annulled upon such ground, unless such ground shall have been declared, and specified in an appeal made to the Commissioner under section 2 of the Bengal Land Revenue Sales Act, 1868 ; . . . . . " In this case, it appears from the observation of the learned Subordinate Judge‑"As a matter of fact, the learned lawyer for the respondent admitted that no such notice by registered post was issued before the sale was held, because it was not obligatory" ‑that the notice contemplated to be issued to the ' proprietor by registered post vas not issued. Therefore, the question is whether the sale is void ab initio, and whether section 33 of the Revenue Sale Law is applicable to the present case or not: In support of the contention of Mr. Roy, he has relied on the Full Bench case of Lola Mobaruk Lal and others v. The Secretary of State for India in Council and others (I L R 11 Cal. 200), where the majority of the Full Bench held: "A non‑compliance with the provisions of section 6 of Act XI of 1859 is not a mere irregularity, and is not one of those errors in procedure, which are intended to be cured by section 8 of Bengal Act VII of 1868. Where a sale for arrears of revenue has been held, and non‑compliance with section 6 has been found, such a sale is null and void, as not being a sale under the provisions of Act XI of 1859." There in that case the sale was held before the expiry of 30 clear days from the date on which the sale notification was affixed in the Collectorate, and the order altering the date of the sale from 31st May to 2nd June was not warranted by Act XI of 1859, as section 6 provides that "the day on which the sale of the same will commence, which day shall not be less than 30 clear days from the date of affixing the notification in the office of the Collector or other officers as aforesaid." In that case majority of their Lordships drew a distinction between an irregularity and illegality, that is, an error which rendered the proceedings null and void, and held that non‑compliance with the provisions of section 6 of Act XI is not a mere irregularity but an illegality ; and the sale held without compliance with the provisions of section 6 of the Act is null and void as not being a sale under the provisions of Act XI of 1859. Tottenham, J., in that case dissented from this view, and held that the sale held under such conditions is not ipso facto null and void, but is liable to be annulled only on proof that the person whose land has been sold has sustained substantial injury by reason of the informality in the publication of the notification. But in Gobinda Lal Roy v. Ramjanam Misser (I L R 21 Cal, 70 : 20 1 A 165), their Lordships of the Judicial Committee observed: "In the opinion of their Lordships a sale is a sale made under the Act XI of 1859 within the meaning of that Act, when it is a sale for arrears of Government revenue held by the Collector or other officer authorised to hold a sale under the Act, though it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or con ducting the sale, or in consequence of some express provision for exemption having been directly contravened . . . . . It is difficult to suppose that the introduction of that sentence (and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of) into the Act of 1859 could have been intended to have the effect of excluding from section 33 all cases of illegality as distinguished from irregularity." So, the Full Bench ruling reported in I L R 11 Cal. 200 has practically been overruled by the decision of the Privy Council in Govinda Lal Ray's case, the effect of which is to annul to a very great extent the distinction drawn in the Full Bench case between illegalities and irregularities.

7. Mr. Roy contends that the fact that long after this Privy Council decision the Legislature introduced the provision for issuing of notices of sale by registered post in the name of the recorded proprietor of the estate providing further that no sale shall take place until the officer conducting the sale has satisfied himself that the notification of sale has been duly published, and the notice of sale has been sent to the proprietor by registered post clearly indicates that without the compliance with the mandatory provisions of section 6, a sale will be a nullity. I am unable to accept this contention of Mr. Roy as correct, as the Legislature is supposed to know the case law on the subject in the Privy Council decision. In spite of that they have nowhere provided that non‑issue of notice of sale by registered post to the proprietor will render the sale without jurisdiction, and null and void. Though there is amendment of section 6, there is no corresponding amendment in section 33 of the Revenue Sale Law which provides that except upon the ground of its having been made contrary to the provisions of this Act no sale for arrears of revenue shall be annulled by a Court of justice. The section does not speak of mere irregularity. It speaks of "contrary to the provisions of this Act." In the present case, at best, it can be said that the said without issuing notice of sale by registered post to the recorded proprietor is a sale contrary to the provisions of the Act. So, it seems to me, it attracts the operation of section 33, and the plaintiffs are not entitled to get the sale set aside without proving that they have suffered substantial injury by reason of the irregularity complained of, and no such sale shall be annulled upon such ground; unless such ground shall have been declared and specified in an appeal made to the Commissioner under section 2 of the Bengal Land Revenue Sales Act, 1868. In the present case, there is no dispute that no appeal was filed before the Commissioner of the Division on any ground.

8. As regards the substantial injury, the plaintiffs pleaded that on account of the illegality in the sale they have suffered substantial injury. None of the Courts below have come to a finding whether the plaintiff has suffered substantial injury; but the undisputed fact remains that no appeal admittedly was filed before the Commissioner. In the circumstances, I think it cannot be held that the sale without issue of notice of sale by registered post to the recorded proprietor is without jurisdiction, and, there fore, null and void. It is voidable only, and can be avoided in accordance with the provisions of section 33 of the Revenue Sale Law.

9. The result, therefore, is that this appeal is allowed, the judgment and decree of the lower Appellate Court are set aside, and those of the trial Court restored.

10. In the circumstances of the case, I direct that the parties will bear their own costs throughout. K. E. A. Appeal allowed.