PUVVADA ACHIRAJU Vs. THE COLLECTOR, VISAKHAPATNAM AND OTHER

JUDGEMENT

(1.) This is an application Under Article 226 of the Constitution to quash the proceedings of the Collector of Visakhapatnam, R.C. No. 16608/47 (S.R. No. 112/57) A-1, dated 11th February, 1958. The petitioner herein filed an application under section 38 of the Madras Revenue Recovery Act (II of 1864) (herein after referred to as "the Act") to set aside a revenue sale. In his application he set out various grounds which, according to him, entitled him to have the sale set aside. Without hearing the petitioner and without giving an opportunity to him to prove the several allegations mentioned in the affidavit, the petition was rejected on 11th February, 1958. No reasons whatsoever were set out in the order for rejecting the application. The order is laconic and as in the following words:-

(2.) As against the said order, the petitioner has filed the writ application before this Court. Section 38 (1) of the Act runs in the following terms:-

(3.) The section requires that only the petitioner should prove material irregularity or mistake or fraud in publishing or conducting sale but also that he has sustained substantial injury thereby. I am inclined to hold that the words "proves to the satisfaction of the Collector" clearly indicate that the petitioner is entitled to establish the facts by oral and documentary evidence. I am unable to accept the contention of Sri. E. Venkatesam, the learned advocate for the respondents, that the Collector might dispose of the application without hearing the petitioner and giving an opportunity to him to establish the facts alleged in his application. Reliance was placed on an unreported decision of Balakrishna Ayyar, J., in Writ Petition No. 83 of 1954, dated 8th February, 1954, for the contention that the petitioner is entitled to be heard in support of his petition and that the statute does provide for an oral hearing. With great respect, I am inclined to follow that decision. In my opinion, the words "proves to the satisfaction of the Collector" necessarily involve and imply that the petitioner is entitled to adduce oral and documentary evidence in support of the allegation in his affidavit. Under the provisions of the Evidence Act, a fact is said to be proved when, after considering the matters, before it the court either believe it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The proof may be by oral evidence or documentary evidence or circumstantial evidence. It is necessary for the Collector to apply his mind and decide on the evidence placed by the petitioner whether the sale should be set aside under section 38 of the Act.