VARKEY JOSEPH Vs. STATE
LAWS(KER)-1955-8-21
HIGH COURT OF KERALA
Decided on August 02,1955

VARKEY JOSEPH Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE petitioner is the auction-purchaser at a revenue sale on 18.12.1954 for default in payment of the kist amount by an abkari contractor of 63 3/4 cents of land - Survey Plot Nos. 301/1/30 and 334/3/2 in the Verapuzha Village. His bid for Rs. 925/- being the highest the Tahsildar accepted the same and the petitioner deposited Rs. 138-12-0 on the same day and the balance amount of Rs. 786-4-0 on 15-1-1955. In the normal course the sale would have been confirmed on 18.1.1955.
(2.) THE sale, however, was not confirmed and the reason for the same is given as follows in paragraph 3 of the affidavit of the 3rd respondent, the Tahsildar of the Parur Taluk, who conducted the sale: "............................. before the sale records were forwarded to the 2nd respondent (the Collector of Trichur District) for confirmation the 3rd respondent on making further enquiries into the matter came to know that the property had been undersold to the petitioner and that there was the possibility of getting the market value made mention in the Village Officer's mahazar, viz., Rs. 2200/- if the property was resold. THEre was, therefore, the chance for Government to realise the whole arrears due from the defaulter. In these circumstances the 3rd respondent instead of recommending the confirmation of the sale wrote to the District Collector for cancellation of the sale conducted by him and for a re-auction of the property. THE 2nd respondent accordingly in his order No. M1-12910/54 dated 1.4.1925 (copy of which is produced and marked Ext. I) set aside the sale under S. 39(4) of the Revenue Recovery Act, VII of 1951 and ordered re-auction of the property". Ext. I the order referred to in the extract from the affidavit of the 3rd respondent, is in the following terms: "The bid amount obtained at the sale conducted by the Tahsildar on 18.12.1954 is Rs. 925/- only. It is far from sufficient to satisfy the demand pending against the party. In view of the market value of the properties sold which is estimated to be Rs. 2200/- the bid amount is too low. The sale is, therefore, set aside under S. 39(4) of the R.R. Act and the Tahsildar is requested to conduct a fresh sale as expeditiously as possible". and the only question that arises for consideration in this petition is whether the Collector was entitled to pass an order like Ext. I under S.39(4) of the Travancore-Cochin Revenue Recovery Act, 1951 (Act VII of 1951). Sub-s. (1) of S.39 provides: "Where sale of immovable property has been conducted by the Tahsildar, he shall, as soon as may be after the conclusion of the sale, report the result, thereof to the Collector". and sub-ss. (2), (3) and (4) read as follows:- "(2) At any time within thirty days from the date of such sale, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake or fraud in publishing or conducting it; but except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. (3) If the application be allowed the Collector shall set aside the sale and may direct a fresh one. (4) On the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under S. 38 or under sub-s. (2) of this section, or if such application has been made and rejected, the Collector shall make an order confirming the sale; provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reason in writing, set aside the sale".
(3.) THE learned counsel for the petitioner contended before me that the Collector can set aside a sale under sub-s. (4) only on all or any of the grounds on which a successful application can be made under sub-s. (2), viz., "some material irregularity or mistake or fraud in publishing or conducting" the sale and not on any other ground. I cannot agree. THE proviso to sub-s. (4) clearly indicates that the Collector has wider powers in the matter of setting aside a sale and that in every case in which he has reason to think that a sale ought to be set aside, he can after recording his reasons in writing, do so, whether an application in that behalf had been made by the aggrieved party under sub-s. (2) or not. THE only restriction that is apparently contemplated is that when an application had been made under sub-s. (2) and rejected by him he cannot then set aside the sale on any of the grounds mentioned in that application but only on some other ground which he considers sufficient for the purpose. Sub-ss. (2), (3) and (4) of S. 39 of the Travancore-Cochin Revenue Recovery Act, 1951, correspond to sub-ss. (1), (2) and (3) of S. 38 of the Madras Revenue Recovery Act (II of 1864). In I.L.R. XXII Madras 440 it was Stated that words "except as otherwise is hereinafter provided" occurring in sub-s. (1) of S. 38 of the Madras Act cannot but refer to the action which the Collector can take "suo motu" under the latter part of sub-s. (3) of that section, and in A.I.R. 1941 Madras 561: "The terms of S. 38(3) are very much wider than those of S. 38(1) and that the sale can be set aside for very many more grounds than under S. 38(1). All that is necessary under S. 38(3) before setting aside the sale is that the Collector should have reason to think that the sale ought to be set aside; so that if the Collector gives any substantial reasons at all why a sale should be set aside, his order is good. It is not necessary that he should find there was a material irregularity; it is not necessary that he should find that the price was unduly low. Still less is it necessary that the Collector should come to the conclusion that the lowness of the price was a direct result of some material irregularity". ;


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