Adichan Asari Kochappi Asari v. Madhavan Pillai Narayana Pillai
1957-10-06
SANKARAN, T.K.JOSEPH
body1957
DigiLaw.ai
Judgment :- 1. Adichan Asari Kochappi Asari, the appellant in these three appeals was the 1st defendant in O. S. Nos. III, 113 and 112 of 1951 of the District Court of Trivandrum from which these appeals arise. The 2nd defendant in all the suits was the State. As the question for decision was common to all the suits, the three cases were tried and disposed of together by the court below and the appeals were also heard together. 2. Different plots of land belonging to the 1st defendant were sold in revenue sale for recovery of arrears of tax and were purchased by the respective plaintiffs in the three suits. The 1st defendant applied for cancellation of the sale but his applications proved unsuccessful. His revision petitions before the Government were dismissed by order Ext B dated 23-9-1946 and the properties sold were delivered over to the auction purchasers. After keeping quite for nearly 4 years the 1st defendant filed petitions before the Government for reviewing the order dated 23-9-1946 and setting aside the sales. These review petitions were allowed by order dated 12-1-1951. The orders passed in review are sought to be quashed in the three suits, mainly on the ground that the Government had no power under the Revenue Recovery Act to review prior decisions. It was also urged by the plaintiffs that the sales were validly conducted. The 1st defendant contended that the Government had jurisdiction to review the prior orders and that the revenue sales were void and inoperative. The trial court held that the Government had no power to review its prior decisions and that the sales were valid. The orders passed in review were therefore set aside and the plaintiffs were given decrees for recovery of possession of the properties with mesne profits, as the 1st defendant had obtained delivery of possession on the strength of the orders in review. The 1st defendant has preferred these appeals from the respective decrees in the three suits. 3. The main point for decision is whether the Government had jurisdiction to review the prior decision dismissing the revision petitions. The sales in question were conducted on 22-12-1111,16-11-1114,12-9- 1110 and 6-12-1107, when the Travancore Revenue Recovery Act I of 1068 was in force.
The 1st defendant has preferred these appeals from the respective decrees in the three suits. 3. The main point for decision is whether the Government had jurisdiction to review the prior decision dismissing the revision petitions. The sales in question were conducted on 22-12-1111,16-11-1114,12-9- 1110 and 6-12-1107, when the Travancore Revenue Recovery Act I of 1068 was in force. Revisional jurisdiction was conferred on the Dewan by S.50 of the Act which provided as follows: "The Dewan may, for sufficient reason, revise any orders passed, or proceedings taken, by a Division Peishkar, Tahsildar or Proverthicar, under the provisions of this Regulation, or may, generally or in certain cases or certain classes of cases only, delegate such powers of revision to the Land Revenue and Income-tax Commissioner: Provided that no order shall be passed under this Section without previous notice to the party to be affected by such order". The 1st defendant's revision petitions were dismissed on 23-9-1946. He waited for nearly 4 years and filed petitions to review these decisions on 29-3-1950. It is conceded that the Act does not provide for review by any of the authorities having jurisdiction to confirm or set aside the sale. The proposition that the power to review prior decisions does not exist where it has not been expressly conferred was not seriously disputed. Several of the reported decisions upholding this view are mentioned in V. Kesavan v. K.S. Raghavan (A.I.R.1953 T-C. 439). In view of this, what was contended for was that the Government was not actually exercising a power of review but only an inherent power to rectify a mistake in the previous order. It is urged that such inherent jurisdiction exists in every tribunal or authority deciding any matter The above decision as well as Standard Motor Union Ltd. v. State (A.I.R.1954 T-C. 899) were relied on for this purpose. We are unable to accept this argument. In passing the order Ext. B, the Government was not rectifying any accidental slip or error in the previous order. The correctness of the previous orders was examined and it was held that the decisions were wrong and that the sales had to be set aside. It is clear from the order Ext.
We are unable to accept this argument. In passing the order Ext. B, the Government was not rectifying any accidental slip or error in the previous order. The correctness of the previous orders was examined and it was held that the decisions were wrong and that the sales had to be set aside. It is clear from the order Ext. B that the Government was not correcting any slip or error which had crept into the previous order but was reviewing the whole case again and coming to a fresh decision on the questions raised by the 1st defendant. As soon as the revision petitions filed by the 1st defendant were decided, the Government became functus officio and thereafter the only jurisdiction that could be exercised was one to correct any inadvertent slip or error in the order. The inherent power to rectify such errors does not include the power to reverse the former order in its entirety and to pass a fresh order Such power can be exercised only by way of review. Learned counsel for the appellant sought to support the order Ext. B on the strength of S.21 of the General Clauses Act which reads as follows: "Where, by any (Central Act) or Regulation, a power to (issue notifications), orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications), orders, rules or bye-laws so (issued)". This in our opinion does not include the power of review in cases of this kind. The orders contemplated in the section do not appear to be decisions of disputes between contending parties but those similar to notifications, rules etc., referred to in the section. To hold otherwise would mean that it is unnecessary to confer a power of review on any authority or tribunal which has to decide disputes as such authority or tribunal deciding a case would have power to review its decisions even in the absence of a specific power to review The Government in allowing the Review Petitions exercised a jurisdiction not vested in it by the Statute and the finding of the trial court on this point does not therefore call for interference. 4.
4. Learned counsel for the appellant raised another point viz., that he was in possession of the properties and that he could successfully resist the plaintiff on the ground that the revenue sales were void. Assuming that he could do so in spite of the fact that he got possession on the strength of an order passed without jurisdiction, he is not entitled to succeed as the revenue sales have not proved to be void. The grounds on which a revenue sale can be declared to be void have been stated by a Full Bench of the T-C. High Court in Eravi Pillai Krishna Pillai v. Maluk Mohammed Sahul Hameed (1953 K. L.T.802). It was held in that case that a sale conducted without service of demand notice or effecting attachment or proclamation would be void. Learned counsel stated that demand notices have not been served on the appellant and that attachment was not effected. The demand notices in respect of the revenue sales covered by O.S. Nos. 112 and 113 have been proved in the case while the demand notice regarding the sales which form the subject-matter of O. S. No. III have not been produced. It was argued that the revenue sales in respect of which O. S. No. III was filed should be declared to be void as the demand notices had not been produced. The burden of proving that demand notices were not served on the 1st defendant was on him but he did not take steps for the production of the same. His case in the pleadings is not that demand notices were not issued but that the same were served fraudulently. This is a matter which he ought to have proved and he failed to prove the same. So far as the other sales are concerned Exts. XI and XVII are demand notices accepted by him. The 1st defendant did not examine the persons who served those notices or the attestors to the respective endorsements to show that he did not sign the notices. Even though the demand notices relating to the sales which form the subject-matter of O. S. No. III are not available, it is seen that the 1st defendant signed the proclamation notice Ext. III. Ext. XIV is the notice accepted by him in respect of the sale covered by A. S. No. 120.
Even though the demand notices relating to the sales which form the subject-matter of O. S. No. III are not available, it is seen that the 1st defendant signed the proclamation notice Ext. III. Ext. XIV is the notice accepted by him in respect of the sale covered by A. S. No. 120. The relevant records relating to the attachments of the properties sold have been produced and proved in the case and no evidence was adduced by the 1st defendant to show that the records were fraudulently prepared. There is thus no material for holding that the sales are void. The appellant is not entitled to succeed on this ground either. 5. No other point arises in these appeals We therefore confirm the decrees and dismiss the appeals with costs. Dismissed.