G RAM REDDY Vs. SUB COLLECTOR BODHAN

JUDGEMENT

(1.) The petitioner in this writ petition was a Patwari of a village called Neela of Nizambad District During the year 1952-53, he worked as a Patwari Tne allegation made against the petitioner was that, during that period, he had misappropriated public revenue to an extent of Rs31,05592 p It was said that an enquiry into the matter was conducted by the Tahsildar, in which the petitioner had admitted his criminal guilt and civil liability also Yet the amounts due from the petitioner could not be recovered so far In order to recover the misappropriated amounts, the petitioner's lands were brought to sale first on 9111976 and later on 2831977, but, for some reason or other, the petitioner's lands could not be sold in public auction The counter-affidavit of the Sub-Collector states that the petitioner was responsible for that result The petitioner was alleged to have prevented large number of people from participating in the auction Finally, the State did succeed The petitioner's lands were sold on 29111979 The lands of the petitioner that were sold were of two categories They are single crop wet lands and double crop wet lands However, the Collector, on 1011980, had confirmed the auction of the double crop wet lands only, but did not confirm the auction of the single crop wet lands on the ground that these lands fetched too small a price On 12121979, the petitioner filed an application before the Sub-Collector asking to set aside the sale of the double crop wet lands also He alleged that no notice and no proper publicity regarding the auction was given and that, consequently, only very few people participated in the auction He also said that his lands, which were worth about Rs10,000/- per acre, were sold away for a paltry sum of Rs4,600 and odd For those reasons, the petitioner asked for setting aside the auction and for conducting reauction But the auction of the double crop lands was not set aside and no re-auction was conducted of the single crop lands The petitioner has, therefore, filed this writ petition

(2.) Sri Subhashan Reddy, the learned counsel for the petitioner, did not raise before me any question relating to the petitioner's liability to pay the amount which was said to have been misappropriated by the petitioner But the learned counsel argued that the Sub-Collector, on receipt of his client's application above referred to file for setting aside the auction, ought to have given his client an opportunity to make good the contentions raised by the petitioner's application dated 12121979 Sri Subhashan Reddy had also argued that the Tahsildar's imposition of a condition of depositing an amount of Rs9,000/- for setting aside the sale is illegal, as the imposition of such a condition is neither contemplated nor authorised by the Madras Revenue Recovery Act In the counter-affidavit filed by the Sub-Collector, it has been stated that wide publicity has been given to the holding of the auction and that the Sub-Collector himself went round the villages and convicted the bidders of Tadbiloli and other adjoining villages to purchase the lands of the petitioner in the auction fixed on 29111979 The Sub-Collector also stated in his counter-affidavit that many bidders had participated in the auction on 2911,1979 conducted by the Tahsildar In view of these arguments I cannot hold as a fact that there was not enough publicity among the prospective bidders It does not appear to me to be correct to say that the Sub-Collector ought to have set aside the sale of the petitioner's land conducted on 29111979 on that ground Sec38 01 the Madras Revenue Recovery Act says that the sale can be set aside only on the ground of material irregularity or mistake or fraud in publishing or conducting the sale In this case, there is no allegation of mistake or fraud as having occurred in publishing or conducting the sale It is only urged that there was material irregularity in publishing or conducting the sale Having accepted the allegations contained in the Sub-Collector's counter-affidavit and having found that there is enough of publicity, I hold that there is no material irregularity in publishing or conducting the sale

(3.) The question then turns round to one of proper procedure to be followed The question is whether, in the circumstances, the petitioner ought to have been heard or ought to have been given an opportunity to make good his allegations It is clear that Sec38 of the Madras Revenue Recovery Act does not, by express words, require any notice to be given to the petitioner or hear him merely on the basis of his allegations The allegations could be vague or insufficient, or they might be filed merely be protract the proceedings In this case, the petitioner's allegations are, in fact, not specific He says no more than asserting that advertisement for the sale of the lands was not at all made and that there was neither tom-tom not publication with regard to the auction for the sale of the lands and that actually there were no bidders at the time of the auction and that only three to four persons were present at the time when the auction was conducted These allegations must have been considered by the Sub-Collector Prima facie, those allegations must have failed to induce in the mind of the Sub-Collector any belief that there was no publicity After all, the Sub-Collector himself went round the villages encouraging the villagers to participate in the auction In those circumstances, I do not find any basis for saying that the Sub-Collector ought to have given notice to the petitioner to prove his allegations But there is a judgment in Achiraju v The Collector,Visakhapatnam, (1959)2 AnWR 328, on which Sri Subhasan Reddy placed reliance Superficially looked at that judgment appears to say that the Collector is under a duty to afford an opportunity to the petitioner to establish the allegations made in the petition to set aside the auction But on a closer reading, I find that judgment to be more an authority on the procedure to be followed after the collector decides to aiford an opportunity to the petitioner to prove that the petitioner had sustained substantial injury by reason of an unfair auction According to my reading of the above judgment, the Collector's duty to afford an opportunity to the petitioner would arise only when the Collector was prima facie convinced that the sale was vitiated by material irregularity, mistake or fraud It was only then that the petitioner should be given an opportunity to prove to the satisfaction of the Collector that he sustained substantial injury by reason thereofStrictly, speaking what Sec38(1) of the Madras Revenue Recovery Act allows the petitioner to prove to the satisfaction of the Collector is the fact of the petitioner sustaining substantial injury by reason of material irregularity of mistake or fraud that occurred in conducting the sale and not whether there was material irregularity etc It is not worthy that the section does not say that the Collector should, in all cases, give an opportunity to the applicant to prove the fact that there was material irregularity or mistake or fraud in conducting the sale This is quite understandable In setting aside the sale, we are interfering with the interests of both the state and the auction purchaser It cannot, therefore, be done lightly for mere asking The petitioner must make out a prima facie case to the satisfaction of the Collector that there was material irregularity, mistake or fraud in conducting the sale Of course, then the Collector must take the further step envisaged in Sec38(1) of the Act With great respect, I say that the above judgment of Umamaheswaram, J, mixed these two different considerations I am of the opinion that the unreported decision of Balakrishna Ayyar, J, in WPNo83 of 1954 dated 8th February, 1954 From which Umamaheswaram, J, differed took the right view In that case, Balakrishna Ayyar, J, held that the Revenue Recovery Act does not provide for an oral hearing obviously referring to the first stage procedure of Sec38(l) of the Act In this case, the petitioner's allegations are vague They are not capable of inducing in the mind of the Sub-Collector that there was material irregularity, mistake or fraud, I, therefore, hold that there is no error committed by the Sub-Collector not giving an opportunity to the petitioner no prove that there was material irregularity or mistake or fraud The fact that the lands might have fetched less than the market value cannot, by itself, be decisive in proving that the sale was vitiated by material irregularity The lands might have fetched less than the market value for a variety of reasons None of them could be said to have been caused by the alleged material irregularity In view of the above, I am unable to agree with the main contention of the learned counsel for the petitioner