RADHA CHARAN DAS Vs. SHARFUDDIN HOSSEIN

JUDGEMENT

(1.) This is an appeal against a decree setting aside a revenue sale on the ground that the said sale did not take place in accordance with the provisions of Act XI of 1859. The lower Court has held that it was absolutely necessary that the notification of the sale should be published in the Vernacular Government Gazette in Uriya and that its non-publication has made the sale null and void apart from any consideration as to inadequacy of price. We are unable to agree with the learned Subordinate Judge on either of these findings.

(2.) As regards the first point, the notification was published in the Calcutta Gazette and in our opinion that was sufficient. The law on this point is contained in Section 6 of the Bengal Land Revenue Sales Act (XI of 1859) and is in the following words "And if the Government revenue of any estate, or share of an estate to be sold, exceed the sum of five hundred rupees, a notification of the sale of such estate or share of an estate shall be published in the official Gazette." The principal Gazette of the province is the Calcutta Gazette and in it are published all notifications, etc., of the Local Government which are required by law to be published. Selected portions from this Gazette are translated and published in the Government Vernacular Gazettes. These portions are selected according to rules prescribed by the Local Government. It appears from exhibit E, a letter from the Commissioner of Orissa, that in 1895 the Government of Bengal in revising the list of matter to be printed in the Uriya Government Gazette decided to discontinue the translation and publication of land sale notices therein. The practice has since been in accordance with that decision. Exhibit 11 filed by the plaintiffs shows that in February 1911 Revenue sale notices were published in the vernacular Gazette and it appears that probably in consequence of the institution of this suit the practice followed before 1895 has been resumed. It has not been shown to us that the Government had no power to issue the instructions which it did issue and in any case the publication of a notification of sale in the Calcutta Gazette only is, in our opinion, sufficient compliance with a provision of law requiring the publication of such notification in "the official Gazette." We are further of the opinion that even if it had been necessary to publish the notification in the Uriya Gazette, the omission to do so would not have rendered the sale null and void in the absence of any proof of substantial loss by reason of this omission. The decision to the contrary arrived at by the lower Court is based on the ruling of a Full Bench of this Court in the case of Lala Mobaruk Lall v. The Secretary of State (1885) I.L.R. 11 Calc. 200. That ruling certainly supports the contention of the learned Counsel for the respondents that if the provisions of Section 6 of Act XI of 1859 are not complied with, the very foundations of the sale are bad and consequently the provisions of Section 33 of that Act or of Section 8 of Bengal Act VII of 1868 have no application. But that Full Bench ruling has in effect been overruled by the decision of the Privy Council in the case of Gobind Lal Roy v. Ramjanam Misser (1893) I.L.R. 21 Calc. 70; L.R. 20 I.A. 165 We say practically overruled because though there is no reference in their Lordships judgment to the Full Bench ruling in the case of Lala Mobaruk Lall v. The Secretary of State (1885) I.L. Rule 11 Calc. 200 the judgment of a Bench of this Court, which they reversed, was based on that Full Bench decision. The effect of the Privy Council ruling cited above is to annul to a very great extent the distinction drawn in the Full Bench ruling between illegalities and irregularities. Their Lordships commenced the portion of the judgment that deals with this question by stating that they would consider whether there was any real ground for the distinction between cases of illegality, in which a suit might be brought to set aside a sale on grounds that would be barred otherwise under Section 33, and cases of irregularity. After considering arguments on both sides their Lordships came to the following decision: "In the opinion of their Lordships a sale is a sale made under the Act XI of 1859 within the meaning of that Act when it is a sale for arrears of Government revenue, held by the Collector or other officer authorised to hold sales under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened." Then in the next paragraph of their judgment after quoting the reference to irregularity in Section 33 they remark "It is difficult to suppose that the introduction of that sentence in the Act of 1859 could have been intended to have the effect of excluding from Section 33 all cases of illegality as distinguished from irregularity." It therefore follows on the authority of this Privy Council ruling that, even if we agreed with the lower Court that a publication of the notification in the Vernacular Government Gazette in Uriya was required by the law, we should be bound to hold that Section 33 of Act XI of 1859 applied to this case and in the circumstances the sale could not be annulled by a Civil Court in consequence of the omission to so publish the notification. The lower Court has found that the price at which the property was purchased at the revenue sale was reasonably adequate and we agree with this finding. There is certainly no proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of. This makes the provisions of Section 33 as much a bar to the success of the present suit as was the fact in the Privy Council case that the irregularity there complained of was not one of the grounds declared and specified in an appeal made to the Commissioner.

(3.) We, therefore, allow this appeal and set aside the judgment and decree of the lower Court. The suit is dismissed and the plaintiffs respondents will pay the defendants appellants costs in both Courts. Richardson, J.