FIRTU Vs. STATE

JUDGEMENT

(1.) THE facts and circumstances under which this petition under articles 226 and 227 of the Constitution of India has been flied are that in proceedings for the recovery of the amounts of Taccavi loans due from the petitioner, lands to the extent of 52.22 acres belonging to the applicant and situated in Mouza Godhi, Raipur district, were sold by auction on 11th May 1961 and were purchased by the opponents Nos. 4 to 13 for a sum of Rs. 12,825/ -. The petitioner then filed all application under rule 41 of the rules framed under section 41 of the Madhya Pradesh Land Revenue Code, 1959, before the revenue officer namely, the Naib Tehsildar, Rripur, who conducted the sale for setting aside the sale for certain alleged irregularities and mistakes. This application was rejected by the Naib Tehsildar. The sale proceedings were then committed by the Revenue Officer to the Collector for Confirmation of the sale. The Collector, after perusing the report of the Revenue Officer and the objections made by the petitioner against the sale, confirmed the sale. Thereupon the petitioner filed an appeal before the Commissioner, Raipur Division. It seems that in the appeal filed before the Commissioner the petitioner bad not first joined the opponents Nos. 4 to 13 (the auction purchasers), to this petition as respondents in that appeal. However, on 30th August 1961 Shri Bajpai, a lawyer, put in an appearance before the Commissioner on behalf of the auction purchasers. On the next date, that is 26th September 1961, Shri Bajpai made the statement before the Commissioner that he was appearing for only seven of the ten auction -purchasers and that notices be issued to the auction purchasers Bodhilal, Malua and Mangni fur whom he was not appearing. The Commissioner directed that the petitioner should pay process fee within two days for notices to the said three auction purchasers. The appeal was put up for hearing before the Commissioner on 27th October 1961. On this date the auction -purchasers Malua, Mangni and Bodhilal were also present in person and Shri Bajpai appeared for the other auction -purchasers. As the Commissioner was otherwise busy, the appeal could not be heard on that date. On the subsequent hearing, Shri Bajpai raised and pressed the objection that the appeal was incompetent as the petitioner had not impleaded three auction -purchasers, namely, Bodhilal, Mangni and Malua, who were necessary parties to the appeal. The learned Commissioner first overruled the objection by his order dated the 12th December 1961 taking the view that when Shri Bajpai put in an appearance on behalf of at least seven auction -purchasers and when be made an order on 26th September 1961 directing that notices be issued to the other three auction purchasers, the necessary implication was that these auction -purchasers had been made parties to the appeal. By that order, the Commissioner also disposed of the petitioner's application for condoning delay in joinder of the auction purchasers by saying that when seven auction -purchasers appeared voluntarily through their counsel Shri Bajpai and notices were directed to be issued to the other three auction -purchasers, the delay stood condoned Later on, an application made by Bodhilal Malua and Mangni the Commissioner reviewed his order dated the 12th December 1961 and passed an order on 26th February 1962 setting aside his earlier order and holding that the appeal was incompetent as the aforesaid three auction purchasers had not been impleaded. This time the Commissioner took the view that the seven respondents had appeared of their own accord and not because the petitioner had made them parties; and that the three auction -purchasers, namely, Bodhilal, Malua and Mangni who, though they appeared before him for the first time on 26th October 1961, were not given any notice of the appeal on account of the petitioner's failure to pay the necessary process fee for the issue of notices. The petitioner then filed an appeal before the Board of Revenue against the order of the Commissioner dismissing his appeal. That appeal was rejected by the Board of Revenue.

(2.) THE petitioner now seeks by this application a writ Certorari for quashing the decisions of the Collector, Raipur, the Commissioner, Raipur Division, and the Board of Revenue. He also prays that the sale proceedings be quashed or, or in the alternative, a direction be issued to the Collector to hear him on the objections made by him against the confirmation of sale.

(3.) IN our judgment the petitioner's contention that the Commissioner was in error in dismissing the appeal preferred by him on the ground of non -joinder of auction purchaser and that the Collector also barred in confirming the sale without hearing the applicant, must be accepted. It is clear from the record that in the memorandum of appeal filed before the Commissioner the petitioner had not shown any auction purchaser as respondent to the appeal, all the auction purchasers voluntarily put in their appearance when the appeal came up for bearing before the Commissioner on various dates. On 30th August 1951 Shri Bajpai categorically stated that he was appearing for all the auction purchasers, He no doubt on the next date said the this appearance was on behalf of seven auction -purchasers other than Bodhilal, Mangni and Malua. Notices were then directed to be issued to the three auction -purchasers for whom Shri Bajpai withdrew his appearance. It is no doubt true that the appellant (here petitioner) did not pay the necessary process fee for the issue of notice, Bat on 27th October 1961, Malua, Bodhilal and Mangni appeared before the commissioner when the appeal came up for hearing and the other auction purchasers also appeared through their counsel Shri Bajpai. In the fact of these facts, the objection that the applicant himself did not implead any of the auction purchasers who had voluntarily appeared and, therefore the appeal was incompetent for non -joinder of necessary panics was altogether futile and though technical, lacked substance. If even after the voluntary appearance of the auction -purchasers, the petitioner through some mistake omitted to show the auction -purchasers in the memorandum of appeal as respondent the defect remaining in the memorandum of appeal was merely of form and not of substance. In the fact and circumstances narrated by the Commissioner himself, the appeal preferred by the petitioner could not be dismissed on the technical ground that the auction purchasers had not been shown in the array of the respondents when all of them voluntarily appeared before, the Commissioner to oppose the appeal. The appeal of the petitioner could not, therefore, be dismissed by the Commissioner on the ground that the parties affected by the sale sought to be set aside were not before him as they had net been formally impleaded.