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1957 DIGILAW 64 (KER)

Uthuppu Mathai v. The Tahsildar, Meenachil

1957-03-01

M.S.MENON

body1957
Judgment :- 1. The petitioner was an abkari contractor of the State. Certain items of immovable property belonging to him were sold by public auction on 13.9.1956 under the provisions of the Travancore-Cochin Revenue Recovery Act, 1951. Ext. A is a copy of the proceedings of the sale. It shows the amount due from the petitioner as Rs. 22,402-5-5 and concludes as follows: 2. The first contention before me is that the purchase on behalf of the State at the nominal price of one anna of property which according to the petitioner is worth more than Rs. 1,25,000 cannot be sustained. Sales by auction are as old as the law of sale and an auction as commonly understood (except in the form of auction known as a "Dutch auction") is a public sale of property to the highest bidder. Sub-s. (3) of S.36 of the Travancpre-Cochin Revenue Recovery Act, 1951, specifically provides for an auction. It says: "The sale shall be by public auction to the highest bidder". The State was the highest bidder at the auction on 13.9.1956 and I see no reason to hold that the sale was bad because of the nominal character of the price obtained. 3. The next contention is based on two assumptions: (a) that the State was the vendor at the auction on 13.9.1956; and (b) that the principles of sub-ss. (3) and (4) of S.64 of the Indian Sale of Goods Act, 1930, are applicable to sales by auction of immovable property as well. 4. Sub-ss. (3) and (4) of S.64 of the Indian Sale of Goods Act, 1930, provide that in the case of a sale by auction: "(3) a right to bid may be reserved expressly by or on behalf of the seller and, where such right is expressly so reserved, but not otherwise, the seller or any one person on his behalf may, subject to the provisions hereinafter contained, bid at the auction; (4) Where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer". According to the petitioner it is the State that should be considered as the vendor at the auction on 13.9.1956, the principles of sub-ss. (3) and (4) of S.64 should be applied and it has to be held that the State being the vendor, its agent, the Tahsildar, was not entitled to bid as he did in the absence of an express reservation to the effect that the vendor may do so. 5. The position in England is summed up as follows by Heber Hart in his "Law of Auctions" (Third Edition, p. 129): "Unless a right to bid is expressly reserved on behalf of the vendor, the auctioneer must not accept any bid from him or anyone on his behalf, nor may be himself bid on his behalf. With regard to sales of goods, this is provided by the Sale of Goods Act, 1893. Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer. With regard to sales of hereditaments of whatever tenure, the sale of Land by Auction Act, 1867, provides that whenever a sale by auction would be invalid at law by reason of the employment of a puffer, the same shall be deemed invalid in equity also". No enactment corresponding to the Sale of Land by Auction Act, 1867, exists in this country. It is, however, unnecessary to consider what exactly is the position in the absence of such an Act as I have come to the conclusion that it is impossible to accede to the petitioner's contention that the State should be considered as the vendor at the sale on 13.9.1956. The property prior to the sale belonged to the petitioner and the fact that the sale was under a coercive process of law and not at his request or with his consent cannot make the petitioner anything less than a vendor or the Tahsildar anything other than his statutory agent for the purpose of conducting the sale. 6. The general law on the subject is quite clear. 6. The general law on the subject is quite clear. As stated by Heber Hart (Law of Auctions, Third Edition p. 7): "An auctioneer is the agent of the vendor only, except that, when he had knocked down the property to the highest bidder, he has a limited authority from the latter to affix his name to a memorandum of the transaction, so as to render the contract of sale enforceable in cases where written evidence is necessary. To speak of an auctioneer as agent of both the seller and the buyer tends to produce a confused conception of his true position and the duties and liabilities which it involves". 7. In AIR 1937 Madras 287, Pandrang Row, J., dealt with Standing 0.45 of the Madras Board of Revenue which prescribed the procedure to be adopted when either no bid is made for land brought to sale for arrears of revenue or when there is good reason to suspect a combination among the bidders. He said: "In the former case the direction is that the land should be purchased on behalf of Government at a nominal price, the amount of the purchase money being written off the accounts as an irrecoverable arrear with the sanction of the Collector. In the latter case, the officer conducting the sale is authorised to bid on behalf of Government, whether there are bidders or not, up to an amount not exceeding the annual assessment of the land. The last sentence in that paragraph is to the effect that: 'When land is bought in by Government, the certificate should be issued in the name of the Secretary of State for India in Council'. The Madras Revenue Recovery Act (Act 2 of 1864) under which the sales were held makes no provision for buying in of lands brought to sale for arrears of revenue by Government, but that is not to say that the Government are not entitled to buy in lands if they think fit and to give such instructions in the matter of buying in lands to their subordinate officers as they think fit. To that extent, no objection can be taken to the provisions of the Board's Standing 0.45". 8. To that extent, no objection can be taken to the provisions of the Board's Standing 0.45". 8. The Travancore provision for buying in for the Government reads as follows: ...is sold for arrears of tax due thereon and no bidders are forth-coming, a larger extent of the land should be notified for sale again. Thus gradually in one or two sales the whole extent of the land should be sold and if there are no bidders still forth-coming the same should be bid for the Sirkar for a nominal value of one Chackram to be paid out of the office contingency. The Tahsildar should credit this one Chackram in the accounts towards part payment of the arrears and take steps to record the land as Tharisu". (The Travancore Land Revenue Manual, Volume III, Part 1, p. 252). It is not contended that any of the directions have been violated. The only contention is that the provision should not have been invoked in the absence of an express reservation to the effect that the vendor may bid at the auction. 9. The third and last contention urged before me is that the sale is void for non-compliance with the provisions of S.36(2) of the Travancore-Cochin Revenue Recovery Act, 1951, which provides: "Previous to the sale, the Tahsildar shall issue a notice specifying the name of the defaulter, the position, tenure and extent of land and the buildings thereon; the arrear of revenue with interest due; the amount of revenue assessed on the land or upon the different sections; the proportions of the public revenue due during the remainder of the current financial year, and the time, place and conditions of the sale. This notice shall be posted, 30 days at least before the sale in the Proverthicar's and Taluk Cutcherries and on some conspicuous part of the land or building as the case may be. The notice shall also be published in the Gazette". The only complaint is that while Ext. B, the sale notice dated 25.7.1956 showed the amount due from the petitioner as Rs. 18,706-10-9 and interest, the figure given in Ext. A is Rs. 22,402-5-5. It is true that if only interest from 25.7.1956 is added to Rs. 18,706-10-9 the figure will not be Rs. 22,402-5-5. The only complaint is that while Ext. B, the sale notice dated 25.7.1956 showed the amount due from the petitioner as Rs. 18,706-10-9 and interest, the figure given in Ext. A is Rs. 22,402-5-5. It is true that if only interest from 25.7.1956 is added to Rs. 18,706-10-9 the figure will not be Rs. 22,402-5-5. The learned Government Pleader dealt with this matter as follows in the summary of his arguments which he has filed: "We may proceed on the assumption that the amount shown in Ext. B is on the face of it lower than the amount actually due from the petitioner as shown in Ext. A. The question is whether this vitiates the sale. At best this is only an irregularity". I agree with the submission and I see nothing in 1953 KLT 802 to which my attention was drawn by the counsel for the petitioner which compels me to hold that what has happened is anything more than an irregularity. All that was said in the case regarding S.32(2) of the Travancore Revenue Recovery Act, I of 1068 which corresponds to S.35(2) of the Travancore-Cochin Revenue Recovery Act, 1951, is: "If the provisions of S.32(2) have been substantially complied with it can be said that there has been a proclamation. Failure to strictly comply with the requirements of the section relating to the publishing and the conducting of the sale may make the sale only voidable and not void". 10. The petitioner had a contention based on S.63 of the Travancore-Cochin Revenue Recovery Act, 1951. This contention was not pressed before me and is not considered in this judgment. 11. S.55 of the Travancore-Cochin Revenue Recovery Act, 1951, provides for revision in appropriate cases by the Board of Revenue of the orders passed or proceedings taken by a Collector, Tahsildar or Proverthicar under the provisions of the Act and S.56 saves the aggrieved party's right to sue for redress. The petitioner has not chosen either to file a revision petition or institute a suit. 12. In the light of what is stated above the petition has to be dismissed and it is hereby dismissed, though in the circumstances of the case without any order as to costs.