Singh, J.- These two Civil Rules in which common questions of facts and law are involved, are heard together and disposed of by this common judgment. 2. The petitioner in Civil Rule No. 173 of 1980 is a private limited company registered under the Companies Act, 1956, with its registered office at 32, Jamunalal Bajaj Street, Calcutta-7 (for brevity, the 'Company'), which owned, among others, a tea estate consisting of about 2300 acres of land situated within the district of Sibsagar, Jorhat, in the State of Assam. The tea estate employed about 700 employees including clerical staff, and manufactured on the average 3 lakhs kg. of black tea annually. 3. The State Legislature of Assam enacted the Assam Tea Plantations Provident Fund Schema Act, 1955, (Assam Act X of 1955). The Act which received the assent of the President on the 5th June, 1955, was published in the Assam- Gazette on 15th June, 1955, and is hereinafter referred to "The Act". By the Assam Act XVII of 1967, published in the Assam Gazette dated 18.10.67, the words "and Pension Fund” were inserted in the Act. The tea Industry in the State of Assam is exclu­ded from the operation of the Central Act. The Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Act XIX of 1952). As revealed by the preamble, the Act is to make provision for the framing of a Compulsory Provident Fond and Pension Fund scheme for employees employed in tea plan­tations in Assam. In exercise of the powers conferred by section 3 of the Act, the Governor of Assam, framed a Scheme called the 'Assam Tea Plantation Provident Fund Scheme, 1959, which was published in the Government Notification No. GLR 572/58, dated 30th September, 1959, for brevity "the Scheme". The scheme was superseded by a later Scheme called the Assam Tea Plantations Provident Fund & Pension Fund Scheme, 1967, framed by the Governor of Assam in exercise of the powers conferred by section 3 read with section 5 of the Act. The same was published in Govt. Notification No. GLR 550/65/39 dated 21st July, 1968. The Act envisages creation of a Fond by contributions both by the employer and the employees as defined under clause (d) of section 2 of the Act. The same was published in Govt. Notification No. GLR 550/65/39 dated 21st July, 1968. The Act envisages creation of a Fond by contributions both by the employer and the employees as defined under clause (d) of section 2 of the Act. Under sub­section (3) of section 3, as it originally stood, the contribution by the employer to the Fund was "six and a quarter per cent" of the basic wage and the dearness allowance for the time being payable to each of the employees and the employee's contribution is equal to the contribution payable by the employer in respect of him. By Assam Act No. XXV of 1966, published in Assam Gazette, dtd. 14th October, 1966, the words "six and a quarter percent" in sub-section (3) were substituted by the words "eight per cent". 4. To carry out the object of the Scheme and of the Act, a Board of Trustee is constituted under the Scheme to administer the Fund. The State Government is empowered under section 9 of the Act to appoint persons as it thinks fit to be Inspectors defining their jurisdiction. Their powers are enumera­ted in sub-section (2). By section 16 of the Act, as it stood before amendment by Assam Act IX of 1976, the Government or any other person authorised by it may recover from the employer such damages not exceeding 25 per cent of the amount of arrears of the contributions to the Provident Fund or charges payable under the said Act or the Scheme framed thereunder, as it may think fit to impose. By Assam Act IX of 1976, which came into force with effect from 20th May, 1976, the quantum of damage was raised from 25 per cant to 100 per cent of the amount of arrears. Section 15 of the Act prescri­bes the mode for recovery of any amount due from the employer in respect of the contribution payable to the Provident Fund under the Act, and in damages recoverable under section 16, or any charge payable by him under the provisions of the Act or of the provisions of the Schema, if the amount is in arrear, in the same manner as an arrear of land revenue. 5. 5. The petitioner, employer in the case, defaulted to deposit contributions to the Provident Fund from time to time, though it had recovered the contributions from the wages of the employees, in accordance with section 11 of the Act read with paragraphs 24 and 25 of the Scheme framed there­ under. Section 11 of the Act provides that every employer shall be responsible for collection of the contributions, and their remittance in accordance with the provisions of the Scheme and maintenance of necessity records in respect of the members of the Tea Estate. The management of the tea estate failed to deposit the contributions to the Provident Fund from 1.10.74 to 31.3.76, amounting to Rs. 93,192,26 (Rs. 1,88,635.26 less deposit Rs. 95,112,00) and also failed to submit the statements in Form No. I with receipts for deposit in accordance with clause (d) of para 24 of the Scheme for the period from 1976 till 12.1.77. The Assistant Provident Fund Commissioner, Sibsagar Zone, who was also appointed Inspector of the Sibsagar Zone, issued a notice on 12.1.77 to the Managing Director, Socklatinga Tea Estate, Jorhat, acting under section 9 of the Act, and called upon him to deposit by 31.1.77 the said amount and submit the statement in Form No. 1 with receipts of deposit for the period mentioned above. It was pointed out in that letter that the employer was liable for prosecution under section 7(2) and also liable for damage under section 16 of the Act; and that on the failure to comply with the same, legal action would be initiated against the employer charging damages which might exceed 100 per cent of the arrears. A Copy of the notice was endorsed to the Provident Fund Commissioner for necessary action. Despite the aforesaid notice, the employer failed to deposit the contributions to the Provi­dent Fund for the period from 1.10.74 to 31.3.77, amounting to Rs. 2,04,962.52. 6. Some months thereafter action was taken against the employer, The Chairman, Board of Trustees, Assam Tea Plan­tations Pi evident Fund and Pension Fund Scheme, Gauhati, in exercise of the powers conferred by section 16 of the said Act, passed order on 29.11.77 for recovery of Rs. 2,04,962.52 as damage on the amount of contribution of Rs, 2,04.962.52 which was in arrear, and he made further order under section 15 of the said Act for recovery of the total amount of Rs. 2,04,962.52 as damage on the amount of contribution of Rs, 2,04.962.52 which was in arrear, and he made further order under section 15 of the said Act for recovery of the total amount of Rs. 4,09,925.04 from the said employer in the same manner as if it were an arrear of land revenue. A copy of the said order was communicated to the Managing Director, Directors and the Manager of the Tea Estate. The order dated 29.11.77 passed by the Chairman, which is Annexure 'A' to the petition, is impugned in Civil Rule No. 173 of 1980. 7. In exercise of the powers conferred by sections 15 and 16 of the Act above, the Governor of Assam, by Notification No. GLR. 469/55-PF, dated 14th June, 1969, authorised the Chairman, Board of Trustees; Assam Tea Plantations Provident Fund Scheme, to effect recovery of dues and damages recovera­ble under the Act according to the provisions of sections 15 and 16 of the said Act. In supersession of the notification above, the Governor of Assam, issued Government Notification No. GLR. 469/55/PT. II/15, dated 21st November, 1969 in exercise of the powers conferred by section 15 of the Act, authorising the Deputy Commissioner to effect recovery of arrears, contributions and damages recoverable under section 16 of the said Act. By a subsequent, notification, GLR. 469/55/PT.II/17, dated 22.7.70, the Governor of Assam again autho­rised the Chairman, Board of Trustees, A.T.P.P.F. and P.F. Scheme to effect recovery of the dues and damages recovera­ble under the Act, in exercise of the power conferred by section 15 of the Act, superseding thereby the previous Notification No. GLR/469/55/PT.II/14, dated 21.11.69. The cumulative effect of these Notifications, it is contended on behalf of the Chairman, Board of Trustees, is that the Chairman was authorised to recover damages recoverable under section 16 of the Act and to recover the amount of dues and damages recove­rable under the said Act, under section 15 of the Act, as if it were an arrear of land revenue. 8. 8. The Chairman, Board of Trustees, A.T.P.P.F and P.F. Scheme, Gauhati-3, sent to the Collector, Sibsagar, Jorhat, a written requisition under his letter No. PF/77/S-255/248904, dated 29.11.77, Gauhati, to recover the amount of Rs.4,09,925.04 mentioned in the impugned order dated 29.11.77, as if it were an arrear of land revenue and on a priority basis as provided under section 10 of the said Act, by starting a Bakijai Case against the employer, Socklatinga Tea Estate. Properties, moveables and immoveables of the employer are situated within the district of Sibsagar Jorhat in the State of Assam, On the requisition above, the Certificate Officer, Jorhat, by his order dated 15th December, 1977, registered a case being PF/BC/22 77-78, describing the Chairman, A.T.P.P.F. & P.F. Scheme as Certificate Holder and Socklatinga Tea Estate as the Certificate Debtor, under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913), and issued a certificate under section 4 read with section 6 of the said Act. The management of the Socklating Tea Estate on receipt of notice from the Certificate Officer under section 7 of the Public Demands Recovery Act filed objection stating, inter alia, that the certificate was not applicable to the facts and circumstances of the case and that the requisition was not made in accordance with sub-section (2) of Section 5 of the said Act. The Certificate Officer, by his order made on 15.5.78, rejected the objection. As against the aforesaid order, the employer carried the matter in appeal to the Collector, Jorhat. In the appeal the Collector passed order on 18.7.78 to initiate the proceeding de novo under the Assam Land and Revenue Regulation, 1886 (Regulation 1 of- 1886) to recover the amount as an arrear of land revenue as provided for under section 15 of the Ace, 1955. 9. On the basis of the above order, the Bakijai Officer initiated a fresh proceeding under the Regulation by attach­ment and sale of some moveables of the Tea Estate. Mean while, the Collector ordered on 21.9.78 for issue of notice for sale of immoveable property of the employer. Pursuant to the said order, proclamation for sale of 4 estates of the Tea Estate comprising a total area of 3906 B. 1K. 6L. Mean while, the Collector ordered on 21.9.78 for issue of notice for sale of immoveable property of the employer. Pursuant to the said order, proclamation for sale of 4 estates of the Tea Estate comprising a total area of 3906 B. 1K. 6L. described in the Schedule thereto, as provided under Order 21, Rule 66 of the Code of Civil Procedure, 1908, was published in the Assam Gazette dated 28th October, 1978, notifying that a public auction would be held in the office of the Deputy Commissioner at noon of 8th November, 1978. The proclamation for sale was also published in the local newspaper besides being hung up in the premises of the tea garden, and notice Board of the Deputy Commissioner, Sibsagar, Jorhat. There was thus a wide publicity of the sale proclamation. Sri B. Bhattacharjee, Extra Assistant Commissioner, who was duly authorised, con­ducted the sale. Sale was adjourned from time to time as the bids offered by the bidders were considered low. There were three bidders; and Dharmeswar Kalita offered the highest bid of Rs. 12 lakhs. As the bids considered insufficient, they were not accepted. It was put up before the Collector for order, who by his order dated 17.11.78 accepted the highest bid. 10. It appears that a cheque bearing date 17.11.78, for the amount of Rs. 3 lakhs, being 25% of the bid amount, drawn on the United Bank of India Ltd., Jorhat Branch, was given by the highest bidder. The date of delivery of the cheque is disputed. On 18.11.78, the Collector passed order as follows:- "Seen United Back cheque No. AS/25 662081, dated 17.11.87, amounting to Rs. 3 lakhs (Rupees three lakhs) only from the highest bidder Sir Dharmeswar Kalita being the 1/4th of the bid amount. The cheque may be encashed and obtain Bank draft in favour of the Chairman, Board of Trustees, A.T.P.P.F. and P.F. Scheme for their adjustment against arrear of P.F. due.” 11. The balance of the bid amount of Rs. 9 lakhs paya­ble on the 15th day from the sale was to be paid on 2.12.78. On that day, the United Bank of India Ltd., Jorhat Branch filed to the Collector, Sibsagar, Jorhat, a guarantee or an undertaking to pay on demand the amount of Rs. 9 lakhs payable by the auction purchaser, Dharmeswar Kalita, which the Collector accepted. 9 lakhs paya­ble on the 15th day from the sale was to be paid on 2.12.78. On that day, the United Bank of India Ltd., Jorhat Branch filed to the Collector, Sibsagar, Jorhat, a guarantee or an undertaking to pay on demand the amount of Rs. 9 lakhs payable by the auction purchaser, Dharmeswar Kalita, which the Collector accepted. He passed order as : "Seen the under-taking by the U.B.I., Jorhat reg. readiness to pay Rs. 9,00,000/- for Sri Dharmeswar Kalita. Undertaking accepted. Write to Agent, U.B.I, to send us a Bank Draft for Rs. 9,00,000/- accor­dingly in favour of the Chairman, A.T.P.P.F. On 4.12.78 the Collector wrote to the Agent. United Bank of India, Jorhat branch, to pay the said amount of Rs. 9 lakhs on 6.12.78 stating that on failure to pay the amount, sale of the garden to Dharmeswar Kalita would be set aside at his own risk. By the same letter, the Agent was directed to pay Rs. 8,09,994.53 to the Chairman, Board of Trustees, A. T. P. P. F. and P. F. Scheme, Jorhat, showing break-up of the amount as detailed therein and to deposit in cash the balance amount of Rs. 90,005.47 to the Certificate Officer, Jorhat. 12. In response to the letter above, the Agent, United Bank of India, Jorhat Branch, by his letter No. LG/DK/I/78, dated 6.12.78, requested the Deputy Commissioner for 10 days, time to enable them to complete some official formalities in connection with the guarantee. The request was acceded to with the direction that, 'the Back should do the needful within 12.12.78, if possible. On 15.12.78, the Bank handed over to the Deputy Commissioner & cheque No. 621007 bearing date 15.12.78 for Rs. 9 lakhs drawn on the State Bank of India, Jorhat Branch, in favour of the Deputy Commissioner, Sibsagar. The cheque was cashed in due course. 13. The employer filed an application to the Deputy Commissioner on 4.12.78 under section 79 of the Assam Land and Revenue Regulation. 1886, to set aside the sale on the ground of material irregularity and/or mistake in conducting the sale. The cheque was cashed in due course. 13. The employer filed an application to the Deputy Commissioner on 4.12.78 under section 79 of the Assam Land and Revenue Regulation. 1886, to set aside the sale on the ground of material irregularity and/or mistake in conducting the sale. It was alleged in the petition, inter alia, that the sale was held before expiry of 30 days from the date of the publication of the sale that payment of 25% on the amount of bid by cheque was not payment as provided under the law, nor was the Bank's guarantee or undertaking mentioned above for the balance amount of Rs. 9 lakhs followed by cheque drawn on the State Bank of India, Jorhat Branch, on 15.12.78, in favour of the Deputy Commissioner, Sibsagar, Jorhat, could be construed payment under the law within time. It was further alleged that the employer was not given notice before settlement of proclamation, nor were the descriptions of the property fairly and accurably specified in the sale proclamation, in accordance with Order 21, Rule 66(2) of the Code of Civil Procedure. The Assam Financial Corporation, Dispur, Gauhati, which have got a due for Rs. 605,000/- against the employee on the registered mortgage of its lands and buildings also filed application to the Deputy Commissioner on 22.11.78 so set aside the auction sale contending that bid price was too low. Application was filed on behalf of the Assam Co-opera­tive Apex Bank Ltd. under section 79 of the Regulation on 13.12.78 to set aside the sale on similar ground. It stated further that the Bank had financed the Tea Estate on mortgage, of its property; and besides the liability under mortgage, the Bank had obtained a decree against the employer in the civil court for Rs. 27,83,086.36 on 28.2.78, carrying interest of 5½% from the date of the suit till realization with cost of Rs. 15,513.00. The auction purchaser put his appearance before the Deputy Commissioner to support the sale in his favour. The Deputy Commissioner who heard together all the applications rejected the objection petitions by his common order dated 16.12.78. 14. The employer made application to the Board of Revenue under section 147 and/or under section 81 and/or section 151 of the Regulation praying for setting aside the auction sale on the same grounds agitated before the Deputy Commissioner. The application was registered as No. 34RA/79. 14. The employer made application to the Board of Revenue under section 147 and/or under section 81 and/or section 151 of the Regulation praying for setting aside the auction sale on the same grounds agitated before the Deputy Commissioner. The application was registered as No. 34RA/79. The Board by its order dated 12.1.79 stayed execution of the impugned auc­tion sale. The Assam Co-operative Apex Bank Ltd. and Assam Financial Corporation presented similar appeals to the Board of Revenue which were registered as 35RA/79 and 36RA/79 res­pectively in which the auction sale was challenged on the ground of material irregularity in publishing or conducting the sale The auction-purchaser also made an application to the Board to vacate the stay order. The Board of Revenue, after hearing the parties, vacated the stay order by its order dated 21.3.79, and directed the Deputy Commissioner, Sibsagar, to complete the formalities for confirmation of the sale within a period of 5 days from the date of receipt of copy of the order. The Deputy Commissioner, in pursuance of the direction thereof, confirmed the sale by his order dated 26.3.79. The management of Socklatinga Tea Estate filed another application on 30.5.79 to the Board of Revenue under section 147 and/or under section 81 and/or section 151 of the Regulation; impeaching the sale on grounds similar to those in the; earlier appeal with additi­onal ground that the Chairman, Board of Trustees A.T.P.F. and P.F. Scheme, has no authority to determine the amount of contribution to the Provident Fund of Rs. 2,04,962.52 under the Act, in the absence of an adjudication proceeding nor has it jurisdication to levy damage of 100% on the said amount, contrary to section 16 of the Act and in violation of the audi alteram rule. The second application was registered as 191RA/79. The Union of India on behalf of the Collector of Customs at Shillong also filed an application on 17.12.79 in connection with Case No. RA34/79 for being impleaded as an intervener, on the allegation that the employer owed an amount of Rs.17,00,800/- as tax. The Board heard the four appeals together and dismissed the same by a common order made on 29.2 80, holding that the sale did not suffer from any infirmity or illegality. It, however, refused to enter into the question of validity of the order passed by the Chairman, Board of Trustees. 15. The Board heard the four appeals together and dismissed the same by a common order made on 29.2 80, holding that the sale did not suffer from any infirmity or illegality. It, however, refused to enter into the question of validity of the order passed by the Chairman, Board of Trustees. 15. It may be mentioned at this stage that while the four appeals were pending before the Board of Revenue, the Assam Tea Corporation Ltd., a company registered under the Companies Act, 1956, which is engaged in manufacture and sale of tea in the State of Assam, made an application to the Board of Revenue on 12.1.79, claiming that the Tea Corporation had taken over management and possession of the Tea Estate of the employer on and from 8.1.79, on an agreement made bet­ween the Corporation and the management of Socklatinga Tea Estate. The Corporation prayed for stay of operation of the auction sale and continuance of management of the Tea Estate on behalf of the employer meanwhile in the interest of its labourers. The auction purchaser, Dharmeswar Kalita of Jorhat also filed application stating that the Collector through his Sob-Deputy Collector had delivered possession of the property in auction on 5.4.79, after issue of sale certificate on 28.3.29 in his favour. There was thus a serious dispute about posse­ssion of the property in question. 16. The Socklatinga Tea Company Ltd., filed the present application under Article 226 challenging the validity of the order gassed by the Chairman of the Board of Trustees A.T.P.P.F. and P.F. on 29.11.79, and the auction sale affirmed by the Board of Revenue in appeal. The order dated 29.11.77 of the Chairman, Board of Trustees is attacked on the following grounds: (i) The Assam Act X of 1955 is ultravires and uncon­stitutional, as Parliament had enacted Act XIX of 1952 on the same subject ; (ii) The competent authority has not determined the amount of Rs. 2,04,962.52 as contributions to the Provident Fund under the Assam Act, 1955, in an adjudicating proceeding. In the absence of an adjudication by the appropriate authority, determination of the above amount is illegal and invalid ; (iii) The order for recovery of damage of Rs. 2,04,962.52 as contributions to the Provident Fund under the Assam Act, 1955, in an adjudicating proceeding. In the absence of an adjudication by the appropriate authority, determination of the above amount is illegal and invalid ; (iii) The order for recovery of damage of Rs. 2,04,962.52 under section 16 of the Act is void, inasmuch as (a) it was passed without any opportunity being given to the petitioner, in violation of the principles of natural justice, and (b) the Assam Act IX of 1976, which came into force with effect from 20th May, 1976, whereby the rate of the damage was raised from 25% to 100% has been made to operate retrospectively, without jurisdiction, by levying damage of 100% on the amount of Rs. 2,04,962,52, contrary to the Act IX of 1976 ; (iv) The Chairman, Board of Trustees A.T.P.P.F. and P.F. Scheme, was not duly authorised to pass the impugned order under section 15 of the said Act. It is the Deputy Com­missioner who was authorised by the State Government to pass any order under section 15 of the Act and not the Chairman of the Board of Trustees. 17. The auction sale is challenged on the following grounds: I. The recovery procedure under the provisions of the Bengal Public Demands Recovery Act, 1913, on the written requisition sent to the Collector, district Sibsagar is illegal, as it did not comply with section 5 of the Public Demands Re­covery Act. The requisition was not made in the prescribed form, nor was it signed and verified in the manner with pay­ment of court-fee chargeable under the Court Fees Act, 1970, on the amount for recovery, as provided under sub-sections (2) and (5). II. Conversion of the Bakijai proceeding under the Ben-gal Public Demands Recovery Act, 1913, to one under the Assam Land and Revenue Regulation, is not sanctioned by law. Alternatively, even if it is so permissible, the Chairman of the Board of Trustees, whose office is located in Gauhati, cannot request the Deputy Commissioner, Sibsigar District, to recover the amount as arrear of land revenue. It is only the Deputy Commissioner, Kamrup, who has to make a certificate under his hand in the prescribed form and forward it to the Deputy Commissioner, Sibsagar district, Jorhat, within whose limits the defaulter has properties, as provided under sub-section (2) of section 91 of the Regulation. It is only the Deputy Commissioner, Kamrup, who has to make a certificate under his hand in the prescribed form and forward it to the Deputy Commissioner, Sibsagar district, Jorhat, within whose limits the defaulter has properties, as provided under sub-section (2) of section 91 of the Regulation. The letter of requisition not having been made in accordance with law is invalid and no action could be taken on it. III. There was no attachment of immovable property prior to the sale. Nor was any notice given to the employer before the settlement of terms of proclamation, as provided under Order 21, Rule 66(2). The encumbrances to which the property was subject were also not shown in the sale proclamation. - IV. The sale was held before expiry of 30 days of the publication of the sale proclamation, in violation of Order 21, Rule 68. V. There was no immediate payment of 25% on the amount of the purchase-money, as provided under Order 21, Rule 84, section 77 of the Regulation. Payment by cheque is no payment within the meaning of the said provisions, either under section 77 of the Regulation or Order 21, Rule 84. Vio­lation of the said provision renders the sale void. VI. There was no payment of the full amount of the purchase money on the 15th day from the sale of the property either in terms of Order 21, Rule 85, or section 78(1) of the Regulator. The undertaking or guarantee by the Bank did not constitute payment as contemplated by law. The subsequent presentation of the cheque drawn on the State Bank of India, Jorhat Branch, re-enforced the conclusion that payment was made only on 15.12.78, if at all, and not before. Violation of the said provision renders the sale void, and there was no sale in the eye of law. 18. Civil Rule No. 263 of 1980 is filed by the Assam Financial Corporation Ltd. challenging the validity of the auc­tion sale on grounds similar to those in the other Civil Rule. 19. Counsels for the Assam Co-operative Apex Bank and the Financial Corporation supported learned counsel for the Tea Estate, in so far as the attack on the validity of procee­dings of sale is concerned. Learned standing counsel for the Central Government for the Collector of Cutsoms, Shillong and Union of India, takes the similar stand. 19. Counsels for the Assam Co-operative Apex Bank and the Financial Corporation supported learned counsel for the Tea Estate, in so far as the attack on the validity of procee­dings of sale is concerned. Learned standing counsel for the Central Government for the Collector of Cutsoms, Shillong and Union of India, takes the similar stand. Counsel for the three creditors aforementioned submit that their interests are limited to the projection of the claims against the employer. They seek verdict of the court that the right of the auction purchaser in the property is subject to the prior encumbrances created in respect of the property in their favour. In course of the hearing, counsel for the petitioner has pressed the question on the vires of the Act. 20. Counsel appearing for the State of Assam in reply submits that the Bakijai proceeding, which was started initia­lly under the Bengal Public Demands Recovery Act, 1913, has been converted to one under the Regulation and there was nothing illegal in doing so. The Board of Trustees extends its jurisdiction over the entire territory of State of Assam and the Chairman as such has authority to request the Deputy Commissioner, Sibsagar District, Jorhat to proceed under the law for recovery of the amount, as if it were an arrear of land reve­nue, on the basis of section 15 of the Act and section 94 read with section 91(2) of the Regulation. It is also urged that there was no material irregularity or mistake/fraud in conducting or publishing the sale, nor vat there any proof of substantial injury on account of any alleged irregularity or mistake in the conducting or publishing the sale, within the meaning of Order 21, Rule 90, or section 79 of the Regulation. The properties were properly specified in the schedule to the notice for sale. It was not incumbent on the part of authority to attach the land prior to the sale. Payment of the 25% on the purchase money by cheque is not excluded by provision of section 77 or Order 21, Rule 84. Cheque was given on 17.11.78 on acceptance of the bid on 17.11.78. The payment of the cheque cashed sub-seqently related back to the date of delivery of the cheque, and as such it was payment in compliance with the provision of the law. Cheque was given on 17.11.78 on acceptance of the bid on 17.11.78. The payment of the cheque cashed sub-seqently related back to the date of delivery of the cheque, and as such it was payment in compliance with the provision of the law. The Collector's acceptance of the undertaking of the Bank on 2.12.78 constitutes payment of the balance amount of Rs. 9 lakhs on 2.12.78, the cheque dated 15.12.78 drawn on the State Bank of India, Jorhat Branch, having been honoured and met when presented. It is submitted on behalf of the State Government that the auction purchaser takes the property sub­ject to the rights of the prior encumbrances, and as such the rights of the three creditors are fully protected. A number of decisions are cited in support of this proposition. Counsel for the auction purchaser advanced similar arguments in support of the sale. 21. On the question of validity of the impugned order of the Chairman, Board of Trustees, Counsel for the Chairman, in both the Civil Rules, submits that having regard to toe scheme of the Act, no adjudication proceeding is contemplated under the Act. It is the statutory mandate, it is urged, that when an establishment in Tea Plantation falls within the purview of the Act as defined in section 2(f) of the Act, the liability of the employer and the employees springs into being, and the amount of contribution to the Fund stands determined ipso facto in respect of each wage period of the employees. la regard to the other question, counsel submits that section 16 of the Act does not expressly provide for issue of notice to the employer before order is passed for levy of damage; and as such, there was no violation of the principles of natural justice. Alternatively, it is urged that the notice dated 12.1.77 issued by the Assistant Provident Fund Commissioner, Sibsagar Zone, who was also appointed Inspector of the Sibsagar Zone under section 9 of the Act, is to be construed in the context as notice for the proceeding under section 16, in compliance with the principles of natural justice. The employer was fully aware of the default and the consequences that would follow. The employer was not taken by surprise by the impugned order. In regard to the quantum of the damage, says counsel, damage of 100% on the contribution amount of Rs. 2,04,962.52 is legal. The employer was fully aware of the default and the consequences that would follow. The employer was not taken by surprise by the impugned order. In regard to the quantum of the damage, says counsel, damage of 100% on the contribution amount of Rs. 2,04,962.52 is legal. A preliminary objection is raised vehemently that the petitioner is guilty of laches in filing the writ petition under Article 226. The petitioner has not Approached the court at the earliest opportunity and it cannot attack the validity of the order of the Chairman of the Board made under sections 16 and 15 of the Act in the collateral proceeding at this belated stage. Out of the amounts realised from the sale of the property, it is submitted, some amounts had been paid to the employees under the Act and the Scheme there under. There has been change of events subsequent to the order passed by the Chairman of the Board, The auction purchaser who is a third party, shall suffer an irreparable loss and injury on account of the laches and delay on the part of the petitioner. That being so, the court is not to exercise the discretion under Article 226 of the Constitution of India at this belated stage. As regards the authority of the Chairman, Board of Trustees, it is submitted that he was duly authorised by the Government under sections 15 and 16 of the Act and his orders are valid under Notifi­cations aforementioned. 22. I propose to deal first with the questions raised on the validity of the Bakijai case and of the auction sale. Section 94 of the Regulation reads : "The provisions of this Chapter, shall as far as may be, apply to the recovery of any sum of money realisa­ble under any enactment for the time being in force as if it were an arrear of land revenue." The Assam Act X of 1955 is an enactment which is in force in this State. The amount in question is realisable under the Act. From a combined reading of section 15 of the Act and section 94 of the Regulation, it is evident that the provisions of the Chapter V of the Regulation shall, as far as may be, apply to the recovery of the amount of Rs. 4,09,925.04. 23. The amount in question is realisable under the Act. From a combined reading of section 15 of the Act and section 94 of the Regulation, it is evident that the provisions of the Chapter V of the Regulation shall, as far as may be, apply to the recovery of the amount of Rs. 4,09,925.04. 23. As noticed earlier, the Chairman, Board of Trustees, made a written request to the Collector, Sibsagar, Jorhat, for recovery of the amount, as if it were an arrear of land revenue. On the basis of the written request, the Certificate Officer initiated a Bakijai proceeding under the Bengal Public Demands Recovery Act, 1913. Further proceeding under it was disconti­nued. A Bakijai proceeding was taken afresh under the Regula­tion. The question whether the initiation of proceeding by the Certificate Officer under the Public Demands Recovery Act, 1913, is legal or not, does not arise now for consideration. 24. It is now well settled that a sum of money realisa­ble wider any enactment for the time being in force, recoverable as if it were en arrear of land revenue is not necessarily recoverable only under the Bengal Public Demands Recovery Act, 1913, in view of Section 55 of the said Act. See (i) Surma Valley Foodgrain Syndicate, Silchar vs. Excess Profits Tax Officer, Dibrugarh, AIR 1949 Assam 54 and (ii) Himangshu Sekhar Purkayastha vs. State of Assam represented by the D.F.O., Nowgong, AIR 1953 Assam 55. These decisions, in our view, correctly enunciate the law applicable; to the case. 25. The Board of Trustees which is charged with the administration of the fund under the Act and the scheme framed thereunder, has jurisdiction over all the establishments in tea plantations engaging employees as defined in section 2(d) and (f) of the Act. The Chairman of Board of Trustees could, therefore, forward a written request to the Collector, Sibsagar district, Jorhat, within whose district the property is situated, to initiate a proceeding for recovery of the amount realisable under the Act, 1965. The Collector, on receipt of such a requisition, is competent to act under section 94 of the Regulation and invoke the provision of section 91 of the Regula­tion for attachment and sale of the property of the defaulter. There is no irregularity when the Collector takes action under section 94 on a letter of request from the Chairman. 26. The Collector, on receipt of such a requisition, is competent to act under section 94 of the Regulation and invoke the provision of section 91 of the Regula­tion for attachment and sale of the property of the defaulter. There is no irregularity when the Collector takes action under section 94 on a letter of request from the Chairman. 26. There cannot be any doubt that the Chairman of the Board of Trustees was duly authorised by the State Govern­ment to take action under sections 15 and 16 of the Act. The three Notifications issued by the Governor of Assam refe­rred to, read together, reveal that the Chairman of the Board of Trustees was duly authorised to take action under both the sections. By Government Notification No. GLR. 469/55/Pt II/17 dated 22.7.70, the authority delegated to the Chairman, Board of Trustees under the first Government Notification No. GLR 469/55/PF dated 14th June, 1969, stood restored. The conten­tions of the counsel for the petitioner are as such a negatived. The Chairman was duly authorised to pass the impugned order, and the Collector has validly taken action under section 94 of the Regulation on the request of the Chairman. 27. Next I examine the applicability of the relevant provisions of the Code of Civil Procedure to Bakijai proceeding under the Regulation in the attachment and sale of immoveable pro­perty of the defaulter for recovery of sum of money under any enactment in force. Provisions of the Regulation for sale of property under section 70 of the Regulation do not apply to a sale covered by section 91. Provisions of the Regulation for sale of property under section 70 of the Regulation do not apply to a sale covered by section 91. Section 91(1) as amended by the Assam Land and Revenue Regulation (First Amendment) Act, 1971, which was published in the Assam Gazette on 17th December, 1971, is in the following term :- "91(1) If an arrear of an estate in which the settle­ment holder has not a permanent, heritable and transfera­ble right of use and occupancy, cannot be recovered by the process mentioned in Section 69, and an arrear in respect of any other estate, cannot be recovered by any of the processes mentioned in this chapter; And the defaulter is in possession of any immoveable property other than the estate in respect of which the arrear has accrued, the Deputy Commissioner may pro­ceed against any of that other property situated within his district according to law for the time being in force for the attachment and sale of immoveable property under the decree of a civil court." 28. Chapter V of the Regulation provides for recovery of arrears of land revenue payable in respect of any estate defined under section 3(b) of the Regulation. It contains provi­sions from sections 63 to 95. They lay down, Inter alia, pro­cedure for sale of a permanently settled estate or of an estate in which the settlement holder has a permanent, heritable and transferable right of use and occupancy, when land revenue of such estate is in arrear, and for application to set aside such a sale on specified grounds, and determination of claims thereof and finality of the same. Section 91 provides that when the arrears of revenue of the category of estate specified therein, cannot be recovered by any of the processes mentioned in Chapter V, the Deputy Commissioner may proceed against the defaulter's other immovable property situated within his district according to law for the time being in force for attachment and sale of property under decree of a civil court. Order 21 of the Code of Civil Procedure, 1908, lays down the pro­cedure for the attachment and sale of immovable property under the decree of a civil court. 29. Learned counsel of both the sides referred to Notes (1) and (2) appended to section 91 of the Regulation in the Land Revenue Manual printed and published by the Government of Assam. 29. Learned counsel of both the sides referred to Notes (1) and (2) appended to section 91 of the Regulation in the Land Revenue Manual printed and published by the Government of Assam. Under the Notes, it is stated that provisions of Order 21 of the Code of Civil Procedure are applicable to the attachment and sale of immovable property including '.boss relating to objection, hearing and determination of claims arising out of the sale of the immovable property of the defaulter. It is a settled law that such Notes issued by the Government Department regarding working of an Act are inadmissible for the purpose of construing the Act. See Craies on Statute Law, Seventh Edition at page 131. It states: "Explanatory notes regarding the working of an Act issued by a Government department for the assistance of their officials are inadmissible for the purpose of cons-A truing the Act." See also (i) Commissioner of Income-tax, Madras, vs. K. Srinivasan and another, AIR 1953 SC 113 ; and (ii) J.K. Steel Ltd. vs. Union of India and others, AIR 1970 SC 1173 . 30. The scope of section 91 is, therefore, to be interpreted independent of the Notes above. Section 91 of the Regulation is an instance of legislation by incorporation when the relevant provisions of the Code of Civil Procedure are incorporated by reference into the Regulation, by section 91 of the Regulation, these provisions so incorporated become part and parcel of the Regulation, as if they had been 'bodily transplanted into it" The effect of incorporation by reference is admirably stated by Lord Esher N.R. in Re Weeds Estate Exp. F. Works, and Building Commissioner, (1886) 31 Ch. D. 607, while dealing with the case of incorporation of some sections of earlier Act, 1840 into the later Act, 1855. He said : "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with at if they were actually in the Act of 1855." See 'Craies on Statute Law', page 223, Seventh Edition, and M/s. Agarwal Trading Corporation and others vs. The Assis­tant Collector of Customs, Calcutta and others, AIR 1972 SC 648 at page 654. However, the merit of legislation by incor­poration which is a 'brevity' which is largely counter-balanced by 'difficulties and obscurities' which is likely to create. 31. It is pertinent to refer to the relevant provisions of the Code at this stage. Under the Code, Order 21, Rule 54 Rule 55, deal with attachment of the immovable property, and Rules 58 to 63 deal with investigation of claims to, and objec­tions to attachment of, attached property. O. 21, R. 64 to 73 which deal with sale of property generally apply also to the sale of immovable property. O. 21, R. 82 to 94 deal with sale of immovable property. For immediate payment of deposit of 25% on the purchase-money (R. 84); time for payment of the full purchase money (R. 85); consequence of default of payment of full amount (R. 86); procedure for setting aside the sale on depositing the amount specified (R. 89); procedure for setting aside the sale on ground of irregularity or fraud in publishing or conducting it (R. 90): right of the purchaser to apply to the court to set aside the sale, on the ground that the judg­ment-debtor had no saleable interest in the property sold (R. 91) and order for confirmation of the sale and making it absolute, where no application is made under R. 89, R. 90 or R. 91, or where such application is made and disallowed (R. 92 (1). R. 92 (2) expressly provides that where deposit required by Rule 89 is made within 30 days from the date of sale, the court shall make an order setting aside the sale. The purchase-money is refunded when sale is set aside under R. 92 (R. 93) and finally certificate of sale is issued to the auction purchaser (R. 94). 32. A comparison between the relevant provisions of the Regulation and those under the Code in juxtaposition would reveal that the procedures for sale and the legal effects of the sale are different in the two cases. 32. A comparison between the relevant provisions of the Regulation and those under the Code in juxtaposition would reveal that the procedures for sale and the legal effects of the sale are different in the two cases. We may notice in brief the similarity any the striking dissimilarity between the two pro­visions. (1) When the defaulting estate of the description in section 70 is to be sold, the Deputy Commissioner is to follow the procedure laid down in section 72 in issuing the notice of sale. As the sale of estate under section 70 is free of all encum­brances previously created thereon by any other person than the defaulter (sec. 71), any such encumbrance is not to be speci­fied in the sale notice. Under the Code, sale of immovable property without attachment is permissible and legal (R. 11 (i)(ii), but any encumbrance to which the property is liable is to be specified fairly and accurately as possible in the sale notice under 0. 21, R. 66(2) (c). O. 21. R. 66(2) also enjoins that the pro­clamation shall be drawn up after notice to the judgment-debtor. (2) Under section 75 of the Regulation if the defaulter pays the arrears of revenue of the defaulting estate, and the fee prescribed in this behalf, at any time before the date fixed for the sale, the sale shall be stayed. Similar provision is made in O. 21, R. 69(3), (3) On sale of the estate and declara­tion of the bidder as purchaser at the auction under section 77, the purchaser shall be required to deposit immediately 25% on the amount of his bid, and in default of such deposit, the property shall forthwith be again put up and sold. Under section 78 (1) the full amount of the purchase money shall be paid by the purchaser before sunset of the 15th day from the date on which the auction sale took place and default of payment of the full of the purchase-money, deposit of the of the bid amount shall be forfeited to the Govt. and the property shall be re-sold. The defaulting purchaser shall forfeit all claims to the property or to any part of the claim for which it may be subsequently fold. and the property shall be re-sold. The defaulting purchaser shall forfeit all claims to the property or to any part of the claim for which it may be subsequently fold. Clause (3) of sub-section (3) provides that if the proceeds of the sale are lets than the price bid by the defaulting purchaser, difference shall be leviable from him under provisions of the Chapter V as if it were an arrear, subject to the provisions mentioned thereto. Similar provisions are made in O. 21 R. 84, R. 85 and R. 71. (4). Under the Code, in case of default to pay the full amount of the purchase money on t o due time and date, the 1/4th deposit may be forfeited (O. 21, R. 86). It confers a discretion on the court to refund tie deposit or a portion of it if good and sufficient cause can be shown for failure to deposit, though re-sale is obligatory. (5) Under the Regulation two remedies are provided for to set aside sale before sale becoming final under section 80. One remedy is provided for under section 78(A)(2) on the application with deposit of money as provided under sub-section (1). The second remedy is provided for under section 79, on the application to the Deputy Commissioner of any time, within 60 days from the date of the sale, on the grounds mentioned therein and proof of substantial injury by reason of the irregularity or mistake complained of. Under the Code, two remedies [are available; (a) U. 21, R. 89-on the application with deposit of the amount specified therein, (b) O. 21, R.90, to set aside the sale on the grounds mentioned - therein. Under O. 21, R. 91 a right is given to the purchaser to apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. Such a right is not given under the Regulation. (6) Under section 80 of the Regulation after payment of the requisite amount by the auction purchaser and when no application under section 78(A) or 79 is preferred, the sale, subject to the provisions of sections 81 and 82, becomes final at noon of the sixthieth day from the day of sale reckoning the said day of sale as the first day of the sixthieth day. When such application is made and dismissed by the Deputy Commissi­oner, the sale shall become final from the date of dismissal, if more than 60 days from the date of sale, or if less, than at the noon of the sixthieth day. But under O. 21, R. 92, where no application is made under R. 89, R. 90 or R. 91, or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sub becomes absolute. Confirmation of sale follows automatically and confirmation of sale not set aside en the grounds in R. 89, 90 or 91 has to be made under O. 21, R. 92, even though the decree has been set aside in proper proceeding or rever­sed in appeal. (7) As noticed above, the sale becomes final under section 80 of the Regulation at the noon of sixthieth day from the day of sale, subject to sub-section (2) thereto. Under the Codes the court is to confirm the sate under 0. 21, R. 92, after 30 days from the date of sale. The period of 30 days follows from Article 127 of the Limitation Act, 1963, 'which provides for application under R. 89, 90 or 91. 33. The legal effects of the sale in the two cases are radically different. Property sold under section 70 is free of all encumbrances previously created thereon by any other person than a purchaser, subject to the proviso (S. 71), while property at the court sale under O. 21 is subject to all encumbrances pre­viously created thereon by the judgment-debtor. The sale certi­ficate issued under O. 21, R. 94 does not create any title in favour of the purchaser but is merely evidence of tide. The purchaser at the court sale takes the property subject to all the defects in the title, and the doctrine of caveat emtor applies to such a purchase. See (i) Musammat Izzat-Un-Nissa Begun vs. Kunwar Pertab Singh and others, 36 I.A. 203 and (ii) The Ahmedabad Municipal Corporation of the City of Ahmedabad vs. Haji Abdul Gafur Haji Hussenbhai, AIR 1971 SC 1201 . See (i) Musammat Izzat-Un-Nissa Begun vs. Kunwar Pertab Singh and others, 36 I.A. 203 and (ii) The Ahmedabad Municipal Corporation of the City of Ahmedabad vs. Haji Abdul Gafur Haji Hussenbhai, AIR 1971 SC 1201 . It is also a settled law that where the right, title or interest of the judgment-debtor are put up for sale, as to what passes to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the court intended to sell and what the purchaser intended to buy and did buy and what he paid for. (1) Bhagbut Pershad and others vs. Mussumat Girja Koer and others, 15 IA 99; (II) S.M, Jakati and another vs. S.M. Borkar and others, AIR 1959 SC 282 . 34. Counsel for the Government concedes, rightly in oar view, on the basis of the principle of law above that the purchaser, Dharmeswar Kalita, would take the property in ques­tion subject to encumbrances or charge previously created thereof. 35. An ancillary question that arises is : to what extent the provisions of the Code shall be followed? The language of section 91 it plain and free from ambiguity. It contemplates that the relevant provisions of the Code incorporated in the Regulation, shall apply not only to the actual conduct of the attachment and tale, but also to the determination of claims and objections arising out of such pals. The expression 'The law for the time being in force for the attachment and sale of immovable property under a civil court, in the contest, connotes the entire procedure culminating in the finality of the sale. The relevant provisions have been pointed out already. The Legislature, it appears, considered the procedure laid down in the Regulation for sale of estate under section 70 to be harsh as compared with that under the Code. Section 94 pro­vides only the manner of recovery of the amount under an enactment in force. The manner for recovery of the amount as an arrear of land revenue does not convert the amount into an arrear of land revenue. 36. The period of limitation for application to set aside the sale and for appeal to the Board of Revenue will be re­gulated by the Regulation. The manner for recovery of the amount as an arrear of land revenue does not convert the amount into an arrear of land revenue. 36. The period of limitation for application to set aside the sale and for appeal to the Board of Revenue will be re­gulated by the Regulation. In a sale under the Code, appli­cation under O. 21, R. 89, R. 90 or R 91 is to be made within 30 days under Article 127 of the Limitation Act, 1963. Article 127 is not, however, incorporated in the Regulation by section 91. The Regulation prescribes period of limitation for such applications. The applications are as such to be made within the period so prescribed by the Regulation. The period of 30 days for deposit under R. 89 expressly mentioned in R. 92(2) shall be read to have been incorporated in the Regulation. 37. The remedy for appeal under the Regulation will govern such sales arising under section 91. The provisions of O. 43, R. 1 of the Code will not apply to such a case. In Barraclough vs. Brown (1897) A.C. 515, Lord Watson said : "The right and the remedy are given uno flatu, and one cannot be dissociated from the other. By these words the legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable and has therefore by plain implication enacted that no other court has any authority to entertain or decide these matters." On the principles above, I am of the opinion that the remedy for appeal to the Board will be regulated by sections 147 and 151 of the Regulation. 38. Appeal lies to the Board of Revenue against the order of the Deputy Commissioner refusing to set aside the sale, it being not an order mace under section 79. The four appeals above were validly presented to the Board. The contention of the counsel for the Government that the appeals are incom­petent is rejected. 39. I turn to the consideration of the primary question on the irregularities of the proceeding for sale. The four appeals above were validly presented to the Board. The contention of the counsel for the Government that the appeals are incom­petent is rejected. 39. I turn to the consideration of the primary question on the irregularities of the proceeding for sale. It is urged that the property was not specified properly in the proclamation for sale, nor were the encumbrances to which the property was subject mentioned in the sale proclamation, in compliance with O. 21, R. 66. It is also contended that the sale was conducted in violation of Rule 68. As regards the contention for failure to observe O. 21 R. 66, I may refer to the affidavit of K. K. Baruah, Collector, Sibsagar, Jorhat, filed on 26.8.1980 in Civil Rule No. 173 of 1980. He affirmed that the proclamation for sale was served on the Managing Director of the employer on 6.1070 and the proclamation was published in the Assam Gazette dated 25.10.1978, which contained proper description of the property. It is by now settled that the provision of O. 21, R. 68 is mandatory and failure to observe it does not render the sale void ipso facto, unless substantial injury results from such a failure. Relying on Tassaduk Rasul Khan vs. Ahmad Hussain and another, 20 I. A. 176 (PC) and Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh and others, A I R 1964 SC 1300, this Court in M/s. Dasuram Mirzamal vs. Balchand Surana, A.I.R. 1970 A&N 117, observes at p. 119: The terms of Order 21, Rule 68 are indeed imperative, but even so a sale that takes place without complying with these provisions may cot per se be null and void." We are in respectful agreement with the view above. There is no proof of substantial injury of being caused to the petitioner in the case on account of toe failure to observe, if any, the provisions of O. 21, R. 66 or R. 68. Proper descriptions of property to be sold were specified in the proclamations for sale. The other errors complained of by the petitioner were committed in settling in sale proclamation under O. 21, R. 66. They amount to mere irregularities which do not render the sale void. Proper descriptions of property to be sold were specified in the proclamations for sale. The other errors complained of by the petitioner were committed in settling in sale proclamation under O. 21, R. 66. They amount to mere irregularities which do not render the sale void. The Supreme Court in S A. Sundararajan vs. A.P.V. Rajendran, AIR 1981 SC 693 , had the occasion to consider errors of similar nature, and held such errors to be mere irregularites which did not vitiate the sale. It affirmed the principle laid down in its earlier decision in Dhirendra Nath Gorai (supra), wherein difference between the error which makes the proceeding void and one which makes it merely irregular was pointed out. It observed at page 694. "The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him. They were not matters which went to the root of the courts jurisdiction and constituted the foundation of authority for the proceeding or where public interest was involved. Clearly, they ware mere irregularities." I hold, therefore, that the sale cannot be held invalid on this irregularities or errors complained of by the petitioner. The contention on this question is rejected. 40. The crucial questions in this case are : (1) whether deli­very of a cheque on 17.11.78 which was cashed subsequently amounts to payment of 25% on the amount of the purchase-money, in compliance with the provision of law ; and (2) whe­ther the guarantee or undertaking of the Bank, accepted by the Collector on 2.12.78, which guarantee or undertaking, as noticed earlier, resulted in payment by cheque delivered to the Collector on 15.12.78, constitutes payment of the balance amount of the purchase-money, in compliance with the provisons of law. It is dispupted that a cheque bearing date 17.11.78 was deli­vered on 18.11.78 and not on 17.11.78. The affidavit-in-opposition of K. K. Barua, Collector, Sibsagar, Jorhat filed on the 26th August, 1980 in Civil Rule No. 173 of 1980 may be refe­rred to. He affirmed at para 16 : ''That in reference to Para 37 of the petition I beg to state that 1/4th of bid money was duly realized on a date of conducting the bid for sale. He affirmed at para 16 : ''That in reference to Para 37 of the petition I beg to state that 1/4th of bid money was duly realized on a date of conducting the bid for sale. Sec­tion 78(1) of the Assam Land & Revenue Regulation provides acceptance of payment of bid money in form of cheque. Cheque is as good as cash if the payee is convinced of the financial solvency of the drawer.'' Again at para 31, he affirmed : "That in reference to para 37 of the petition, I beg to state that 25% of bid money was pail by the auction purchaser on the day of sale.'' The statements above are not controverted by rejoinder on behalf of the petitioner. There is also a clear finding of the Collector in his order dated 16.11.78 in the Bakijai proceeding on this fact. The Board of Revenue in the appeal before it did not disturb this finding. We cannot in the pro­ceeding under Article 226 examine the correctness of such find­ing of fact, and we hold that the cheque bearing date 17.11 78 for Rs. 3 lakhs was delivered on 17.11.78 and not on 18.11.78. 41. O. 21 R. 84(1) provides as follows : "(1) on every sale of immovable property the person declared to be the purchase shall pay immediately after such declaration a deposit of twenty-five per cent on the amount of his purchase money to the officer or other person conducting the sale, and in default of such depo­sit, the property shall forthwith be resold." Section 77 of the Regulation provides as follows : "The person declared to be the purchaser at an auction sale under the foregoing sections shell be required to deposit immediately twenty five percentage on the amount of his bid, and in default of such deposit the property shall forthwith be again put up and sold." 42. Generally between a creditor and a debtor, a creditor can legally refuse to accept anything but legal tender in dis­charge of debt. Since a cheque is not a legal tender, he is not bound to accept it as a means of payment, unless it is a, part of the contract that this method of payment shall be employed. Generally between a creditor and a debtor, a creditor can legally refuse to accept anything but legal tender in dis­charge of debt. Since a cheque is not a legal tender, he is not bound to accept it as a means of payment, unless it is a, part of the contract that this method of payment shall be employed. Legal tender is a tender of money of such kind as is required by law, and which a person entitled to receive is bound to accept in discharge of a debt expressed to be paya­ble in coin of the realm. The tender must be exact in amount and unconditional. When a cheque is tendered to a creditor as payment, he does not at that time raise any objection, then this method of payment will, if it is duly honoured, operate as an effectual discharge of debt. Several decisions, which I shall presently discus?, have firmly established the principle of law that when the cheque is accepted as conditional payment, on fulfillment of the condition, that is, on the cheque being met on presentation, the payment relates back to the time when the cheque was given and takes effect ab initio. There may be circumstances from which an agreement may also be implied that the cheque was accepted by the creditor unconditionally as payment. 43. In Commissioner of Income-tax, Bombay South, Bom­bay vs. Messrs Ogale Glass Works Ltd., Ogale Wadi, AIR 1954 SC 429 , the Supreme Court considered the effect of payment of a sum of money by cheque. In that case, an assessee was a non­resident Company incorporated and carrying on business in the former Aundh State outside British India. The assessee asked the Government Department in Delhi to remit certain amounts by the cheques as price of the goods purchased from them by the Government. According to the terms of the agreement, the cheques were drawn in Delhi and sent by post and they were by the assessee in Aundh. The assessee endorsed the cheques in favour of the Aundh Bank Ltd., which in its runs used to endorse them in favour of the Bank in Bombay. The Bombay Bank cleared the cheques through the clearing house in Bombay. The assessee endorsed the cheques in favour of the Aundh Bank Ltd., which in its runs used to endorse them in favour of the Bank in Bombay. The Bombay Bank cleared the cheques through the clearing house in Bombay. On these facts, there arose the question about the dates and places of payment for purposes of assessment under Section 4(1)(a) of Income-Tax Act, 1922 the Supreme Court held that even if the cheques were taken conditionally, the che­ques not having been dis-honoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the deli-very of the cheques. The Court referred to two English cases, (i) Fleix Hadley & Co. vs. Hadley, (1898) 2 Ch. 680; and (ii) Rhokana Corporation Ltd. vs. Inland Revenue Commissioner, (1938) A.C. 380 on this point. A passage in Benjamin on Sale 8th Edition P. 788 and another passage in Byles on Bills, 20th Edition P. 23, were also quoted with approval. The principle of law above was followed in the later case by the Supreme Court in Jiwanlal Achariya vs. Rameswarlal Agarwalla AIR 1967 SC 1118 . The later case dealt, with the payment of debt by a post-dated cheque. A cheque bearing date February 25. 1954, was delivered on February 4, 1954 and was cashed soon after February 25, 1954. It was held that where a post-dated cheque is accepted conditionally and it is honoured, the payment for the purposes of section 20 of the Limitation Act, 1908, can only be the date which the Cheque bears and cannot be on the date cheque is handed over, for the cheque, being post-dated, can never be paid till the date on the cheque arrives. 44. In Marraco vs. Richardson (1908) 2 K.B. 584, the debtor handed over a post dated cheque bearing date May. 20, 1900 to the creditor on May, 10, 1900, in part payment of the debt. It was agreed to between them that the cheque would not be presented till June, 20, 1900 on which date it was pre­sented and cashed. A writ was filed on June 18, 1906, for recovery of the balance amount. The claim was held barred by the Statute of Limitation as it was brought beyond 6 years of the implied promise to pay the balance of the debt. A writ was filed on June 18, 1906, for recovery of the balance amount. The claim was held barred by the Statute of Limitation as it was brought beyond 6 years of the implied promise to pay the balance of the debt. Farewell L.J. referred with approval to Byrne J.'s decision in Felix Hadley (supra), and added "I should prefer myself to say that the giving of a cheque for a debt is payment conditional on the cheque being met, that is, subject to a condition subsequent, and if the cheque is met it is an actual payment ab initio and not a conditional one.'' (underlining supplied) 45. In my opinion, payment of the required amount under R. 84 or section 77 by a cheque is a valid payment. A cheque unless dishonored, is payment. The meaning of the word 'immediately' is promptness of action. A provision to the effect that a thing must be done immediately means 'AS soon as an act cart, with reasonable deligence, be performed; as soon as Convenient ; as soon as may be, after happening of some event; as soon as the nature of the work should permit, 31 Corpus Juris, 1923 Edition at P. 247. See also Halsbury's Laws of England 3rd Edition, Vol. 37, P. 103. 46. In the case before us, as soon as the highest bid was accepted, the purchaser handed over a cheque for Rs. 3 lakhs on 17.11.78 to the officer who conducted the sale. The officer was satisfied with the solvency of the auction purchaser and accepted the cheque without objection. He was not bound to accept it as a means of payment. Having regard to the circums­tances of the case, it was, however, within his competence to accent a cheque when tendered as payment. The acceptance of a cheque involves undoubtedly passing a judgment on the solvency of the person who tenders a cheque. The cheque delivered on 17.11.78 was not dishonoured but was cashed. On the principle of law laid down in the cases discussed above, the payment related back to 17.11.78 when the cheque was delivered. The provision of Law under consideration does not expressly or impliedly bar the payment of 1/4th of the bid amount by cheque. A similar view was taken by the Madras High Court in Mohindwabi and others vs. Khatoon & Ors AIR 1976 Mad. The provision of Law under consideration does not expressly or impliedly bar the payment of 1/4th of the bid amount by cheque. A similar view was taken by the Madras High Court in Mohindwabi and others vs. Khatoon & Ors AIR 1976 Mad. 435, wherein it was observed : "It is manifest from this judgment that there will be no obstacle in the way of receiving payment by cheque is quite the same thing as cash, and therefore, there is nothing irregular in the auction accepting a cheque specially when they were assured of solvency of the bidder." The court also quoted with approval the observation of Chagla, C J. in Kirloskar Bros. Ltd, vs. Commissioner of Income Tax, Bombay. AIR 1952 Bom. 306 : "In is well settled in commercial practice, as I shall presently point out that a cheque is looked upon if the creditor accepts a cheque in presence of the country's currency." 47. We are in respectful agreement with the observations above. Some other High Courts also agreed with the views of the Bombay High Court in Kirloskar Bros. Ltd. (supra). See Gauhati Rice Mill vs. Commissioner of Income Tax, AIR 1954 Orissa 94, the Commissioner of Income Tax vs. P. N. Rathod and Co. AIR 1957 M.P. 64, and Barbhagwan Ramlal vs. M/s. Punjab and Pepsu Financier Ltd., AIR 1969 Pun. 340. A contrary view was taken by the Allahabad High Court in Hiralal and others, vs. Mst. Champa and others, AIR 1955 All. 226 . No reason, however, appears to have been given for that view. With respect, I am unable to agree with that view. I am, therefore, of the opinion that Sri Dharmeswar Kalita, the auction purchaser, paid on 17.11.78 1/4th of the bid amount, in compliance with the Provision of the law. The contention of the petitioner on this question is negatived. 48. The second question about payment of the balance amount on the 15th day from the date of the sale of the property may next be considered. The contention of the petitioner on this question is negatived. 48. The second question about payment of the balance amount on the 15th day from the date of the sale of the property may next be considered. R. 85 reads : "The full amount of the purchased money payable shall be paid by the purchaser into court before the court closes on the 15th day from the sale of the pro­perty." Section 78 of the Regulation reads : "(i) 'The full amount of the purchased money shall be paid by the purchaser before sun-set of the 15th day on which the auction sale took place, or if that day is a Sunday or other authorised holiday then on the nest following day." 49. On 2.12.78, the last day for payment of the balance amount, the United Bank of India Ltd. filed a guarantee or undertaking to the Collector, Sibsagar, Jorhat, whereby the Bank undertook to pay to the Government the amount to the extent of Rs. 9 lakhs in consideration of the Collector, Sibsagar, having agreed to exempt the bidder from demand under the terms and conditions of auction held on 17.11.78 on production of a Bank's guarantee for Rs. 9 Lakhs. The document recites that the Bank undertakes to pay the amount without any demur for the auction purchaser merely on demand from the Govern­ment that the amount claimed is due by way of loss or damage caused to or would be caused to or suffer by the Govern­ment, by reason of any breach by the said bidder of any of the terms and conditions contained in the said auction or by reason of the bidder's failure to perform the said agreement of the bid. It recites further that unless demand or claim under the guarantee is made on them in writing on or before 29.1.79, they shall be discharged from all liability under the guarantee thereafter; but the Bank agrees that the Government shall have the liberty without their content and without affecting their obligation thereunder to vary any of the terms and conditions of the said agreement of bid or to extend time of performa­nce by the said bidder from time to time. It further provides that the guarantee shall remain in full fores and effect during the period that would be taken for the performance of the said agreement of bid and that it shall continue to be enfor­ceable till all the dues of the Government under or by virtus of the said agreement of bid have been fully paid and its claims satisfied or discharged or till the Collector's office of Sibsagar, Jorhat, certify that the terms and conditions of the said agreement of bid have been fully and properly carried out by the bidder. 50. On a readnig of the recitals of the document, in my opinon, the true character of the document is nothing but a Bank's guarantee, pure and simple. A guarantee is a written promise made by one person to be collaterally answerable for the debt, default or miscarriage of anther person. The essence of contact of guarantee is that the guarantor is only collaterally answerable the original debtor is not released from his liability. All that the guarantor promises to do is to pay, either the whole or an agreed part of the debt, if the person who has con­tracted or will contract the debt fails to do so. 51. Councels for the purchaser and the State Government contend that the guarantee having been honoured by delivery of cheque on 15.12.78, payment in the circumstances of the case should be held to have been made on 2.12.78. No authority has been cited in support of such a contention. I find no authority to support such a contention that a guarantee by a nationa­lized Back, like the United Bank of India Ltd. is as good as payment in cash and that such a guarantee should be treated on par with cheque. It seems to me that such on extension by reference to the mode of payment to the cheque does not find support from any authority of law. Privy Council made certain observations which may be said to be near this case. In Commissioner of Income Tax, Bihar and Orissa vs. Rameswar Singh, AIR 1933 P.C 108. A debtor owed the assessee Rs. 32 lakhs and odd as principal and Rs, 6 lakhs and odd as interest in respect of an unsecured loan. In discharge of the liability, the debtor gave ever assets to the assessee worth Rs. 20 lakhs and a promissory note for Rs. A debtor owed the assessee Rs. 32 lakhs and odd as principal and Rs, 6 lakhs and odd as interest in respect of an unsecured loan. In discharge of the liability, the debtor gave ever assets to the assessee worth Rs. 20 lakhs and a promissory note for Rs. 17 lakhs & odd. The question arose whether execution of a pro­missory note of Rs. 17 lakhs had been a payment and, there­fore, liable to Income Tax. The Privy Council answered the question in the negative, and observed ; 'A debtor who gives his creditor a promissosy note for the sum be owes can in no sense be said to pay his creditor ; but merly gives him a docu­ment or voucher of debt possessing certain attributes.'' 52. Counsel for the Government relied on certain observa­tion of the Supreme Court made in M/s. Ogale Glass Works (supra) The court referred to the case in Gresham Life Assura­nce Society vs. Bishop (1902) A.C. 287, His Lordship Das J. observed : "That a sum of money may be received in more ways then one cannot be doubted. It may be received by tra­nsfer of coins or currency notes or a negotiable instru­ment which represents and produces cash and is treated as such by businessman" 53. In Gresham Life Assurance Society (supra). Lord Lindley observed : "First let us consider what is meant by the receipt of a sum of money. My Lords I agree with the court of appeal that a sum of money may be received in more ways than one, i.g. by the transfer of a coin or a negotiable ins­trument or other document which represents and pro­duces coin and it treated as such by businessmen. Even a settlement in account may be equivalent to a receipt of sum of money, alt he ugh no money may past and I am not myself prepared to say that what amongst busi­nessmen is equivalent to a receipt of a sum of money within the meaning of the statute which your Lordships have to interprete." (underlining supplied) 54. The general observations above do not, in my opinion help us at all. They cannot be pressed into service in the instant case. As alluded to, handing over a promissory note to a negotiable instrument, by a debtor to his creditor does not even constitute payment of the debt. The general observations above do not, in my opinion help us at all. They cannot be pressed into service in the instant case. As alluded to, handing over a promissory note to a negotiable instrument, by a debtor to his creditor does not even constitute payment of the debt. The guarantee produced cash only on the delivery of the cheque on 15.12.78 by the Bank in favour of the Collector, Sibsagar, Jorhat. The payment made on 15.12.78 by cheque cannot relate back to 2.12.78, when the guarantee was filed by the Bank. The Collector is a creature of the Statute whose powers are circumscribed by the terms of the statute. He cannot act beyond the powers conferred on him by the statute. He has transgressed the mandatory provisions of law by extending the time prescribed by law. Payment was made on 15.12.78 and not on 2.12,78. It has been held by the Supreme Court in Manilal Mohanlal Saha and ors, vs. Sayed Mohamad and anr., AIR 1954 SC 349 that the provisions of O. 21 Rule 84 and 85 are mandatory and there is no sale in the eye of law upon non-compliance with this provision of law. There is also no room for exercise of the inherent power of the court to circumvent the mandatory provision of the law. This principle of law was reiterated by the Supreme Court in M/s Ramchand Spig. Wvg. Mills vs. M/s. Bijli Cotton Mills (P) Ltd. Hathras and ors. AIR 1967 SC 1344 . On the facts found, I have no hesitation to come to the conclusion that the Bank's guarantee or undertaking does not amount to the payment of the balance of the purchase money on the 15th day from the date of the sale, in compliance with the provision of law. The sale, as such, is a nullity, and there is no sale in the eye of law. 55. The preliminary objection raised by the counsel for the Chairman about the maintainability of the petition on the ground of laches and delay may be disposed of. In support of his contention counsel for the Chairman relies on the deci­sion of the Supreme Court in the Moon Mills Ltd. vs. M.R. Meher, President, Industrial Court, Bombay and others, AIR 1967 SC 1450 . In support of his contention counsel for the Chairman relies on the deci­sion of the Supreme Court in the Moon Mills Ltd. vs. M.R. Meher, President, Industrial Court, Bombay and others, AIR 1967 SC 1450 . The Court laid down the general principle which would govern the issue of writ of certiorari under Article 226, where the petitioner is guilty of laches and delay or negligence and is not diligent in persuing the remedy. Ramaswami, J. speaking for the court observed : 'It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the court of Chancery." The Court also quoted with approval the passage of Sir Barnes Peacock in Lindsay Petroleum Co. vs. Prosper Armstrong Hard, Abram Farewell, and John Kemp, (1874) S PC 221. "Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval which may affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 56. In the case before us, if the auction sale is held valid, the question as to whether there is unreasonable delay which would disentitle the petitioner to the relief asked for may arise for consideration. As the sale is void and a nullity, the auction purchaser cannot acquire any right to the property in question. The question of injustice being caused to the adverse party does not as such arise on account of the delay on the part of the petitioner in the instant case. On the measure of delay, the Supreme Court in Durga Prosad vs. The Chief Controller of Imports & Exports & ors., AIR 1970 SC 769 at page 770 quoted with approval the observation of the unreported judg­ment of the Supreme Court in Smti. Narayani Devi Khaitan vs. State of Bihar, CA. On the measure of delay, the Supreme Court in Durga Prosad vs. The Chief Controller of Imports & Exports & ors., AIR 1970 SC 769 at page 770 quoted with approval the observation of the unreported judg­ment of the Supreme Court in Smti. Narayani Devi Khaitan vs. State of Bihar, CA. No. 140 of 1964, dated 22.9.64 SC; "It is well settled that under Article 226, the power of the High Court to issue an appropriate writ is dis­cretionary. There can be no doubt that if a citizen moves the High Court under At tic Is 226 and contends that his fundamental rights have been contravened by any execu­tive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappro­priate for the High Court to exercise its high preroga­tive jurisdiction in favour of the petitioner, ends of jus­tice may require that the High Court should refuse to - issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercises it jurisdiction in favour of a party who moves its after considerable delay and is other­wise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably." 57. It is also pointed out by the Supreme Court that the rule which says that the court may not enquire into belated and state claim is not a rule of law, but a rule of practice based on sound and proper exercise of discretion and there is no in violation rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on each own facts. See Ramchandra Shankar Deordhar and ors. Each case must depend on each own facts. See Ramchandra Shankar Deordhar and ors. vs. The State of Maharashtra and ors., AIR 1974 SC 259 . The nature and character of the impugned order cannot altogether be ignored in such a case. In my opinion, on the facts and circumstances of the case, there is no unreasonable delay. The impugned order was passed on 29.11.77, and the present application under Article 226 was filed on 27.3.80. The application as such cannot be thrown out on the ground of laches or delay. 58. Counsel for the Chairman also submits that the peti­tioner cannot challenge the validity of the impugned order of the Chairman collaterally in the present petition arising out of the auction sale. I am unable to accept this contention also. The order of the Chairman, Board of Trustees, is challenged, mainly on two ground, and if the contention is substantiated the impugned order is null and void. Admittedly, such a void order can be challenged collaterally, in such a proceeding. H.W.R. Wade on his Administrative Law, 4th Edition at page 283 said : The Court will treat an administrative act or order as invalid only if the right remedy is sought by the right person in the right proceedings. The question now is what are the right proceedings in which the validity of the act or the order can be challenged. It may be challenged directly, as in the proceedings for certiorari to quash it or for a declaration (hat it is unlawful. But it may also be challenged collaterally, as for example by way of defence to a criminal charge, or by way of defence to a demand for same pay­ment. The learned author after discussion of a number of situations in which the courts will not permit an order to be challenged in collateral proceedings concluded thus: The correct conclusion is probably that there can be no bard and fast rules for determining when the court may or may not allow collateral challenge. In some situations it will be suitable and in others it will be unsuitable, and no classification of the cases is likely to prove exhaustive." 59. This question came up for consideration before the Supreme Court in Nawabkhan Abbaskhan vs. State of Gujarat AIR 1974 SC 1411. In some situations it will be suitable and in others it will be unsuitable, and no classification of the cases is likely to prove exhaustive." 59. This question came up for consideration before the Supreme Court in Nawabkhan Abbaskhan vs. State of Gujarat AIR 1974 SC 1411. Section 56 of the Bombay Police Act, 1951, empowers the Police Commissioner to extern any undesirable person on certain grounds set out therein and an order of externment was passed by the Commissioner on the petitioner. The order was disobeyed by the petitioner and he was prosecuted under section 142 of the Act for disobedience of the order in a crimi­nal court out was acquitted by the trial court. The State pre­ferred en appeal to the High Court against the order of acqui­ttal. During the pendency of the criminal trial, on a writ peti­tion filed by the petitioner, the High Court quashed the externment order on the ground of failure of natural justice. The trial court then acquitted the petitioner. The High Court took the view that the externment order was not void ab initio and if was not retroactive and the petitioner had disobeyed the order when it was in existence. The Supreme Court on appeal did not accept the views of the High Court. After pointing out the distinction between void and voidable order, Krishna Iyer, J. observed at page 1479 : ".........The legal chaos on this branch of jurispru­dence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than juridial law-making will meet the needs more ade­quately. The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties from the beginning any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limi­ted sense of being liable to be avoided by court with retroactive force. The court proceeded further and held that an order which is void may be directly and collaterally challenged in legal pro­ceedings. It observed at P. 1479 : "We express no final opinion on the many wideranging problems in public law of illegal orders and viola­tions thereof by citizens, grave though some of them may be. The court proceeded further and held that an order which is void may be directly and collaterally challenged in legal pro­ceedings. It observed at P. 1479 : "We express no final opinion on the many wideranging problems in public law of illegal orders and viola­tions thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Bs-yond doubt, an order which infringes a fundamental free­dom passed in violation of the audi alteram partem rule is a nullity. When a competent Court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid", (underlining empasized) 60. Having rejected the preliminary objection, I proceed to consider the attack on toe validity of the impugned order dated 29.11.77 of the Chairman, Board of Trustees. The con­tention of the counsel for the petitioner that no machinery is provided for determination of the amount of the contribution payable under the Act is without substance. Sections 3 and 11 of the Act read with para 25 of the Scheme lay down the procedure for contribution to the provident fund both by the employer and employees as defined under section 2(2) (b) (3) of the Act. The amount to be contributed under the Act is fixed. The wage period within which such amount is to be deposited by the employer is also prescribed by the Scheme. The statute expressly provides that the contribution to the fund is to be 8% of the basic wages and Dearness Allowance, that it is to be borne equally by the employer and the employees and that the employer is to pay the whole of it, half on his own account and other half on account of the employee and he is to recoups by himself by deducting it from the wages of the employees, and it is to be effected in the wage period of the employees. Clause (d) of para 24 of the scheme pro­vides that the employer shall deposit in a branch of the State Bank of India or the Reserve Bank of India the total contributions from himself end from members ; and clause (e) provides further that statement in Form I shall be submitted by the employer to the Board with receipt for the deposit in accordance with clause (d) within seven days of collection of the contribution. Thus : "It is a statutory obligation of the employer to con­tribute to the fund without waiting for any demand or notice from the Inspector or any authority under the Act and the employer's liability springs into being the moment the establishment in tea plantation comes within the purview of the Act. No adjudication for determining the amount of the contribution Fund by any authority is envisaged under the Act. The contention for the peti­tioner on this score is rejected.” 61. As regards the question no damage, it is noticed that the rate of damage which may be levied under section 16 has been raised from 25% to 100% by Assam Act IX of 1976, which came into force on 20th May, 1976. The Chairman levied damage of 100% on the contribution of Rs. 2,49,062,52, which was in arrear. A statement of account was filed by the counsel for the Chairman in course of hearing of the case showing the percentage of the amount levied. Counsel for the petitioner does not dispute the correctness of the figure. As shown by the statement of account for the period from 1.10.74 to 31.3.77, there was an excess levy of Rs. 75,542,80 on the amount of the contribution to the fund of 2,04,962.52 which was in arrear. Counsel for the Chairman submits that the amount of the damage lavied is valid and he places reliance on two decisions in Support of the contention, viz. (i) Buckman vs. Buttom (1943) 2 All E.R. 82; and (ii) M/s. New India Sugar Works vs. State of U.P., AIR 1981 SC 998 . 62. In Buckman (supra), the alleged offences were that the appellant, after the date prescribed by certain orders, had car­ried on a business in respect of which he was required to make an application for registration, and had failed to make such application. 62. In Buckman (supra), the alleged offences were that the appellant, after the date prescribed by certain orders, had car­ried on a business in respect of which he was required to make an application for registration, and had failed to make such application. After the commission of the offences, but before the hearing, the Regulations under which the appellant was prosecuted were amended by orders which increased the penalties for such offences. The offences were committed in June, 1941 ; and between the commission of offence and hear­ing on June 29, 1942, the order in S. R. & O. 1942 No. 501, by which the penalty was increased for such offence came into operation in March 22, 1942. On finding the appellant guilty, he was given the higher penalties provided for by the subsequ­ent order which was in force at the date of the hearing. The case is distinguished from the present case before us. The decision is confined strictly to the construction of the language of the Order. Charles J. observed at p. 94 : "I desire to say that I think it would be improper to regard S. R. & O., 1942, No. 501, without looking closely at the original penalty regulation, the Defence (General) Regulations, No. 92. If you do that, you find that the terminology of the section so far as guilt or a guilty per­son is concerned, is, reproduced. The matter is absolu­tely free from ambiguity, for read in its ordinary connota­tion in regard to the word 'guilty' must mean 'found guilty'. I cannot, myself, see that it makes sense other­wise." Secondly, a penal statute which creates offence or which has the effect of increasing penalty for existing offence will only be prospective by reason of constitutional restriction imposed by Article 20 of the Constitution. 63. The next case in M/s. New India Sugar Works does not assist the Chairmen. The facts in that case are : Notification was issued by the Government under the Rules framed under section 3 of the Essential Commodities Act, 1955, imposing levy on the Khandeswari Sugar. The Notification applied to the stock of sugar irrespective of the fact that it was manufactured before or after the order. The notification was challenged invalid as having retrospective effect. The Notification applied to the stock of sugar irrespective of the fact that it was manufactured before or after the order. The notification was challenged invalid as having retrospective effect. The Supreme Court repelling the argument held that it was not a question of retrospectively of the Statute but its actual working and that once the notification imposing the levy was made, it would apply to the stock of khandeswari produced either before or after the order. In arri­ving at the conclusion, the Court referred to the observation of Gajendragadkar, J., in Trimbak Damodhar Raipurkar vs. Assaram Hiraman Patil and others, AIR 1966 SC 1758 : ''In this connection it is relevant to distinguish between an existing right and a vested right. Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all exi­sting rights are included." The Court also quoted with approval the observation of Buckley, L.J, in West vs. Gwynne, (1911) 2 Ch. D. 1 which reads : 'In the first place, the language of the section is perfectly general, "in all leases", and there is nothing in the section itself to confine it to leases subsequent to the Act. Almost every statute affects rights which would have been in existence but for the statute. "The language in the notification in that case before the Supreme Court was plain and perfectly general, and the decision rested purely on its plain language. It is also not a case of punitive action, as in our present case. The ratio of this case does not apply to the present case before us. 64. A similar question came up for consideration before the Supreme Court in the Commissioner of Wealth-tax, Amritsar vs. Suresh Sethi, AIR 1981 SC 1106 . Section 18(1)(a) of the Wealth-tax Act (27 of 1957), prescribes penalty for default or failure to file the return in time under the Act. The quantum of penalty was amended in 1964 and in 1969 by which the amount of penalty was increased. Section 18(1)(a) of the Wealth-tax Act (27 of 1957), prescribes penalty for default or failure to file the return in time under the Act. The quantum of penalty was amended in 1964 and in 1969 by which the amount of penalty was increased. It was held that She offence relating to the omission to file wealth-tax return was not a continuing offence; the penalty has to be computed in accordance with law in force en the last day on which the return in question had to be filed; and neither the amendment made in 1964 nor the amendment made in 1969 has retrospective effect. It was further held that the amended provisions modi­fying the penalty are not applicable to earlier defaults, in the absence of necessary provisions in the amended Acts and the principle underlying section 6 of the General Clauses Act was clearly applicable to the case. 65. The case before us is squarely covered by the principle laid down in the case above. The offence relating to failure to deposit the amount of contribution to the provident fund is not a continuing offence. The amount of damage levied under the Act is penal in character. The penalty for damage leviable under the Act is to be computed in accordance with the law in force on the date when the contribution is to be deposited. Para 24 of the scheme envisages deposit of the amount of the contribution during every wage period, and the state­ment in form No. I is to be submitted to the Board with a receipt of the deposit within 7 days of the collection of the contribution. The Assam Act IX of 1976, which came into force on 20th May, 1976, is as such not applicable to earlier defaults. The damage, therefore, is to be computed so far as that amount is concerned according to the law prevalent then. Imposition of 100% damage on Rs. 2,49,062.52 is as such contrary to section 16 of the Act and is illegal. 66. The last question is whether the impugned order of the Chairman violates the audi alteram partem rule of the prin­ciples of the natural justice. Counsel for the petitioner seriously contends that the employer was not given any notice before impugned order was passed and the Chairman has not passed a 'speaking order'. 66. The last question is whether the impugned order of the Chairman violates the audi alteram partem rule of the prin­ciples of the natural justice. Counsel for the petitioner seriously contends that the employer was not given any notice before impugned order was passed and the Chairman has not passed a 'speaking order'. Counsel for the Chairman urges that there is no express provision in section 26 of the Act which obliged the authority to give notice to the defaulter before the impug­ned order is passed. It is also contended that the facts were known to the defaulter and no prejudice as such can be caused for want of failure to give notice. The contention of the counsel of the petitioner, in my opinion, should prevail. The basic principle of natural justice is that before adjudication starts, the authority concerned should give the affected party the case against him so that he may adequately defend himself and any proceeding taken without notice would violate the principle of natural justice. There is a long string of judicial decisions which have established that notice ii regarded as the sine qu non of the right of fair hearing. 67. In Coal Mines Provident Fund, Dhanbad and others vs. J.P. Lalla & sons, AIR 1976 SC 678 the Supreme Court considered section 10- F of the Coal Mines Provident Fund Bonus Scheme Act, 1948, the language of which is in parimateria with that in section 16 of the Act under consideration. Repel­ling similar argument advanced for the Commissioner of Coal Mines that a personal hearing is not necessary as there is no express provisions in the Section, Ray, C.J. observed : ".........The provisions in section 10-F of the Act indicate that determination of damage is not a mechanical process. The words of importance in Section 10-F of the Act are "such damages not exceeding 25 percent of the amount of arrears as it may think fit to impose". Here the two important features are these. First, the words of importance are 'damages not exceeding 25 per cent". These words show that the determination of damages is not an inflexible application of a rigid formula. Second, the words, 'as it may think fit to impose' show that the authorities are required to apply their mind to the facts and circumstances of the case." 68. First, the words of importance are 'damages not exceeding 25 per cent". These words show that the determination of damages is not an inflexible application of a rigid formula. Second, the words, 'as it may think fit to impose' show that the authorities are required to apply their mind to the facts and circumstances of the case." 68. A number of decisions, Indian and English, have firmly established the principle of law that where a statutory tribunal has been set up for final decision effecting parties' rights and duties, if the statute is silent upon this question, the courts will imply into the statutory provision a rule that the princi­ples of natural justice should be applied ualass they are exc­luded by necessary implication. This implication will be made on the basis that the Legislature is not to be presumed to take away parties rights without giving them an opportunity of being heard in their interest. In other words, the Legislature is not to be presumed to act unfairly. See (i) Siemens Engineering and Manufacturing Co. of India Ltd. vs. Union of India, and another, AIR 1976 SC 1783; (ii) Smti. Menaka Gandhi vs. Union of India and another, AIR 1978 SC 597 and (iii) Mohinder Singh Gill and another vs. the Chief Election Commissioner, New Delhi and other, AIR 1978 SC 851 . 69. In Coal Mines Provident Fund Commissioner (supra) the Supreme Court observed that when a body or authority has to determine a matter involving tights judicially, the prin­ciple of natural justice is implied if the decision of the body or authority affects individual rights or interests; and in such cases, having regard to the particular situation, it would be un-fair for a body or authority not to have allowed a reasonable opportunity to be heard. The same view was expressed by the Supreme Court in Organo Chemical Industries and another vs. Union of India and others, AIR 1979 SC 1803 . In that case, the Supreme Court considered the nature of the damage under section 14-B of the Employees provident Fund and Misc. Pro­visions Act, 1952. Section 14-B was attacked as violative of Article 14 of the Constitution on the ground that it gave an unguided and encarnalized power on the authority to impose damage on the employer in default of payment of the contri­bution to the Provident Fund. The contention was negatived. Pro­visions Act, 1952. Section 14-B was attacked as violative of Article 14 of the Constitution on the ground that it gave an unguided and encarnalized power on the authority to impose damage on the employer in default of payment of the contri­bution to the Provident Fund. The contention was negatived. The Court held that power to impose damages under section 14-B is a quasi-judicial function, and it must be exercised after notice to the defaulter and after giving him a reasona­ble opportunity of being heard and that the discretion to award damage could be exercised within the limits fixed by the statute. The Supreme Court proceeded further that the impugned action under section 14-B is penal in character. 70. In view of the clear statement of law above, provi­sion for natural justice is to be implied in section 16 of the Act. The Chairman is invested with the function of a quasi- judical character requiring him to act judicially. He is clothed with power to levy an amount equal to the amount of the contribution in arrear as damage. It entails civil consequences. The Chairman is bound to give fair notice to the employer before the impugned order is passed, in compliance with the audi alteram partem rule. 71. I am unable to accept the alternative argument of the counsel for the Chairman that the notice dated 12.1.77 issued under section 9 of the Act is in compliance with the principle of natural justice. No material has been placed before us to show that the notice was issued at the direction of the Chairman for the proposed action under section 16. Nor has any provision been pointed out that the Inspector is empowered to issue notice for the proposed action under section 16. The issue of notice can arise only when the competent authority decides to take action under section 16. There is no nexus bet­ween the said notice and the proceeding under section 16. The said notice demanded payment of certain amount of the pro­vident fund in arrear pointing out the legal consequences that might ensue on failure to pay the amount. The notice in the circumstances cannot, in my opinion, be read as a notice issued by the competent authority in compliance with the principles of natural justice for the proposed action under section 16 of the Act. The notice in the circumstances cannot, in my opinion, be read as a notice issued by the competent authority in compliance with the principles of natural justice for the proposed action under section 16 of the Act. The observation of the Supreme Court at para 16 in S.L. Kapoor vs, Jagmohan and others, AIR 1981 SC 136 , may be apposite. Chinnappa Reddy, J. said : "In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a 'double opportunity', that is, one opportunity on the factual alle­gation and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the alle­gations which might lead to a certain action being taken against him. If that is made known, the requirements are met." 72. Counsel for the petitioner also submits that section 16 of the Act enjoins that an order under it must be 'a speaking order' containing reasons in support of it, but no reasons are given in the impugned order. The contention, in my opinion, has also force. Having regard to the nature of the power exercisable under section 16 and the consequences that ensue therefrom, the order under section 16 must be 'a speaking order' which is lacking in the present case. See Organo Chemical Industries (supra). We have also keep in view prejudice cau­sed to the affected party on the failure to observe the principle of natural justice. The Supreme Court in S.L. Kapur's case (supra) observed at page 147 : "The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. 73. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. 73. A reading of section 16 would reveal that determination of damage is not an inflexible application of a rigid for­mula, and as the words 'as it may think fit to impose show the authority is given a wide range of discretion in the matter. If the employer were given opportunity to represent the case against it, it could plead that the authority has no jurisdiction to impose 100% damage on the amount in arrea, in view of the Assam Act IX of 1976, which is not made to operate retros­pectively. Where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, it may have a different consideration in a given case. The Court may not issue its writ, not because it is not necessary to observe natural justice, but Courts do not issue futile writs. We may recall here the classic passage from the judgment of Megarry J. in John vs. Rees, (1970) 1 Ch. 345 ; which the Supreme Court quoted with approval in Swadeshi Cotton Mills vs. Union of India, AIR 1981 SC 818 . The passage reads : "As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which, somehow, were not; of un­answerable charges which, in the event, were completely answered of inexplicable conduct which was fully exp­lained; of fixed and unalterable determinations, that by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to under estimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events. 74. The petitioner before us cannot be denied the right to be heard in compliance with principles of natural justice merely on the ground that petitioner was fully aware of the defaults in payment of the contributions. The impugned order clearly violates the audi alteram partem rule of the principle of nat­ural justice. 75. 74. The petitioner before us cannot be denied the right to be heard in compliance with principles of natural justice merely on the ground that petitioner was fully aware of the defaults in payment of the contributions. The impugned order clearly violates the audi alteram partem rule of the principle of nat­ural justice. 75. The Supreme Court has consistently taken the view that a quasi-judicial or administrative decision rendered in viola­tion of the audi alteram partem rule, wherever it can be read as an implied requirement of the law, is null and void. See Menaka Gandhi's case, S. L. Kapoor's case, Nawabkhan Abbaskhan and Swadeshi Cotton Mills (Supra). As there has been a non-compliance with the implied requirement of the audi alteram partem rule of natural justice in the case before us, the impugned order in so far it relates to imposition of damage under section 16 is struck down as invalid. The other part of the order that an amount of Rs. 2,04,962.52 for the period from 1.10.74 to 31.3.77 was in arrear as contribu­tions to the provident fund payable under the Act and scheme stands. This part of the order is severable from the other part which is declared void. The Chairman Board of Trustees may, however, proceed to determine the damage afresh after giving notice to the employer and take further action in accordance with the law. 76. In view of the foregoing discussions, the petitions are allowed. The purchase-money shall be refunded to the purchaser under usual terms and conditions. On the facts and circumstances of the case, there will be no order as to costs.