ROUTI NARSAIAH Vs. MURAD ALI

JUDGEMENT

(1.) This writ appeal is directed against the judgment and order of our learned brother, Justice Gopalakrishnan Nair, made in W.P. No. 699 of 1963, whereby he has allowed the writ petition and quashed the order of the Board of Revenue setting aside the order passed by the Collector, Mahbubnagar, and directed the Collector, Mahbubnagar, to go into the question whether the appellants have become entitled as auction purchasers to the undivided half share of Mohammad Hussain in the lands in question. The facts giving rise to this appeal may be briefly stated. One Sheik Ahmed; the father of the respondents herein, had stood surety for Abkari contracts taken by one of his sons by name Mahammad Hussain for Faslis 1358, 1359 and 1361. In respect of each of these years he has executed separate agreements undertaking to pay certain amounts to the Government and also charged some lands of his under a bond. It appears that a certain amount was recoverable from Mahammad Hussain in respect of Fasli 1358 and in that connection the land belonging to Sheik Ahmed was attached under the provisions of the Hyderabad Land Revenue Act and subsequently the lands were sold by -public auction on 24th December, 1960, and were purchased by the appellants herein who were the highest bidders. It is conceded that after the attachment and before the auction sale, Sheik Ahmed died and the property in question was inherited by his sons, viz., Mahammad Hussain and others. Two days subsequent to the auction sale, the respondents herein filed a petition before the Superintendent of Excise, Mahbubnagar, that Sheik Ahmed, their father was not liable for any amount for the year 1358-F. and the arrears, if any, in regard to the subsequent years might be recovered from the other persons who had stood surety to Mahammad Hussain. A copy of this representation was sent by the Commissioner of Excise to the Collector, Mahbubnagar, on 17th January, 1961, and a similar copy was sent by the Assistant Commissioner of Excise to the Tahsildar, Kalvakurthy. Notwithstanding all this, the Collector, Mahbubnagar, confirmed the sale on 10th May, 1961. A few months later, on the report of the Collector of Excise, Hyderabad South, to the effect that no arrears were due from Mahammad Hussain in respect of 1358-F, the Collector, Mahbubnagar, set aside the sale on 29th August, 1961, without, however, giving notice to the appellants herein. The appellants coming to know of the cancellation of the sale by the Collector, filed a review petition before him, but this was also rejected. Thereupon, they carried the matter to the Board of Revenue in appeal. The Board of Revenue set aside the Collector's order dated 29th August,1961. on the ground that he had no jurisdiction to cancel the sale after it was confirmed by him and further that he was not entitled to review his own previous order without notice to the appellants herein.

(2.) The respondents thereupon filed the Writ Petition No. 699 of 1963 which, as stated above, was heard by our learned brother Justice Gopalakrishnan Nair. The learned Judge proceeded on the footing that there were no Abkari arrears recoverable from Mahammad Hussain basing his finding on the report of the Collector and therefore held that the sale was ab initio void. On the question whether Mahammad Hussain's share was liable for sale or his brother's, the learned Judge while allowing the writ remanded the case to the Collector to investigate into the matter and pass fresh orders. It is against this judgment and order that the appeal is filed. Learned Counsel for the appellants, Shri Madhava Reddy's main contention is that the order of the Board of Revenue proceeded on the footing that the Collector was not competent to set aside the sale once it was confirmed and it did not call for interference. According to him, the petition filed by the respondents herein was not filed under section 138 of the Hyderabad Land Revenue Act, viz., for setting aside the sale on any of the grounds mentioned therein. No douot, the petition was filed within two days of the sale. But the Collector had confirmed the sale on 10th May, 1961, that is, four months after the receipt of the application. The presumption, therefore, would be that he has acted under section 139 of the Hyderabad Land Revenue Act and rejected the petition filed by the "respondent. He was, therefore, not competent to reopen the matter and cancel the sale merely on the report of the Collector of Excise, Hyderabad, that Mahammad Hussain, an Abkari Contractor, was not a defaulter. The view taken by the Board of Revenue is in accordance with the facts and law on the subject.

(3.) Shri Yunus Saleem, learned Counsel for the respondents, has urged that the petition filed by the respondents was for setting aside the sale, though, he concedes that there was no reference for setting aside the sale on any of the grounds mentioned in section 138 of the Land Revenue Act. His next argument is that the Board of Revenue was not competent to entertain an appeal against the review order made by the Collector. But unfortunately, this point has not been taken before the Board of Revenue and even before our learned brother this argument does not seem to have been advanced. It would be, therefore, deemed that appellant had waived this objection and submitted to the jurisdiction of the Board of Revenue. His next contention is that as reported by the Collector of Excise, Hyderabad, this Court would have to proceed on the footing that Mahammad Hussain was not a defaulter. However, it is apparent from his own admission in the petition filed by him before the Superintendent of Excise that Mahammad Hussain was a defaulter to the extent of a small sum of Rs. 120 which he was willing to deposit. Thus, it is difficult to hold that merely on the basis of the report of the Collector of Excise, Hyderabad, the authority which had confirmed the sale was competent to cancel the same, while it was the case of the respondents that one of the respondents was a defaulter to a limited extent.