GOURISHANKAR KANUNGO v. KHETRAMOHAN RAY — 1989 DIGILAW 293 (ORI)

D. P. MOHAPATRA, J. ( 1 ) THIS application filed under Arts. 226 and 227 of the Constitution of India calls in question the order passed by the Revenue Divisional Commissioner, Central Division, Cuttack in certificate Revision Case No. 35 of 1983 (Annexure 3) rejecting the application of the petitioners to set aside the sale of the mortgaged property on reversing the orders passed by the Certificate Officer as well as by the appellate authority. The disputed property is A. 1. 56 decimals of land in village Odangi. Petitioners 1 to 9 are interested in A. O. 03 decimals of land out of the disputed property. Petitioners 10 to 12 are concerned with the rest of the disputed property. ( 2 ) THE relevant facts necessary for disposal of the present proceeding may be stated thus one Madan Mohan Mohapatra had four sons, namely, Umakanta, Antaryami, Murali and Ramakanta. Antaryami and Murali died issueless. Umakanta has four sons, namely Dwarikanath, Sitakanta, Rabinarayan and Laxmidhar (petitioner No. 12) and a daughter Punti. Ramakanta has a son Gangadhar. Mina (petitioner No. 10) and Kalpana (petitioner No. 11) are the daughters of Rabinarayan. Khetramohan (opp. party No. 1) is the husband of Punti. A certificate proceeding under the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as the 'act') was initiated against Dwarikanath, Sitanath, Rabinarayan and Laxmidhar for realisation of the Govt. dues amounting to Rs. 119/ -. In course of execution of the certificate, a sum of Rs. 50/- was paid by the certificate debtors on 13-4-59. Since the balance amount had not been paid, a proclamation of sale under R. 25 of the Rules framed under the Act was published. The attached property was sold on 25-9-63 and the sale was confirmed on 27-11-63. The certificate of sale was issued on 28-464 and delivery of possession is alleged to have been given to the auction purchaser, opp. party No. 1, on 31-1-65. The property, on area of A. 1. 56 decimals, was sold for a sum of Rs. 200/ -. Thereafter the father of petitioners 7 to 9, late Kanurigo Narendranath Das Mohapatra and petitioners 10 to 12 filed an application under S. 29 (2) of the Act on 12-6-70, before the Certificate Officer, Balasore for setting aside the sale. The application was registered as Misc. Case No. 2 of 1970. The application was contested by opp. 200/ -. Thereafter the father of petitioners 7 to 9, late Kanurigo Narendranath Das Mohapatra and petitioners 10 to 12 filed an application under S. 29 (2) of the Act on 12-6-70, before the Certificate Officer, Balasore for setting aside the sale. The application was registered as Misc. Case No. 2 of 1970. The application was contested by opp. party No. 1, the auction-purchaser. The Certificate Officer by his order dated 17-7-72 rejected the application to set aside the sale. On appeal by the petitioners, the Addl. Dist. Magistrate by his order dated 13-9-78 in Certificate Appeal No. 7 of 1972 allowed the appeal observing that after analysing the facts, he found that the Certificate Officer had not properly enquired into the various points raised in the objection petition dated 12-6-70 and therefore his findings were vitiated. The case was remanded to the Certificate Officer for further enquiry in the light of the observations made by the appellate authority. ( 3 ) THE Certificate Officer on appraisal of the materials on record afresh held, inter alia, that (1) the service of notice under S. 7 of the Act on the certificate debtors was not adequate inasmuch as there were four certificate debtors to whom notices were addressed, but four copies of the notice alleged to have been served by affixture were not available in the case record; (2) that the heirs of Rabinarayan who died during pendency of the proceeding before the Certificate Officer were not substituted before the sale of the property; (3) that the sale proclamation had not been signed by the Certificate Officer and a fascimile signature had been put thereon; (4) that service of the sale proclamation on the Certificate debtors by sending a copy of the same by registered post and by personal service had not been done as required under R. 2 (ii) of Sch. 11 of the Act; (5) that the bidders taking part in the bid were interested persons, two were the sisters' husbands of the auction purchaser, the third was his wife's brother and the fourth was his `halia'; (6) that the petitioners before the Certificate Officer had sustained substantial injury as a portion of the land sold by Ramakanta Mohapatra, father of Gangadhar, to Kanungo Narendaranath Das in 1938 by registered sale deed had been mortgaged by the certificate debtors who are sons of Umakanta in loan bond and again this land was sold to the auction purchaser; (7) that the land was sold at a very low price compared to the value of the land sold in the vicinity. Though the land was being sold at the rate of Rs. 2,200/- per acre in the vicinity, in the auction sale A. 1. 56 decimals of land was sold for a paltry sum of Rs. 200/- and (8) that the evidence on record showed that Gangadhar continued to possess his eight annas share in the, property despite the sate by auction. The heirs of late Kahungo Narendranath Das continued in possession of A. O. 03 decimals of land purchased by Narendranath Das in 1938. Thus actual possession of the entire land sold had not been delivered to the auction-purchaser. " on the aforesaid findings, 'the Certificate Officer, being satisfied that substantial injury was sustained by the petitioners before him in the proceeding under S. 29 of the Act due to material irregularities in conducting the sale, passed the order on 30-12-80 directing issue of notice to the certificate debtors to deposit the dues plus interest at the rate of 6. 1/4% and cost etc. , before 5-1-81 (order in Annexure- 1 ). The certificate debtors in compliance with the aforesaid direction deposited the amount and notice was issued to the opp. party No. 1 to receive the auction money from the Court of the Certificate Officer on 29-1-81 (Annexure-1/a ). ( 4 ) ON appeal by the opp. party No. 1, the Addl. Dist. Magistrate, Balasore in Certificate Appeal No. 1 of 1981 dismissed the appeal and confirmed the findings of the Certificate Officer by order dated 24-8-83 (Annexure-2 ). Opp. party No. 1 to receive the auction money from the Court of the Certificate Officer on 29-1-81 (Annexure-1/a ). ( 4 ) ON appeal by the opp. party No. 1, the Addl. Dist. Magistrate, Balasore in Certificate Appeal No. 1 of 1981 dismissed the appeal and confirmed the findings of the Certificate Officer by order dated 24-8-83 (Annexure-2 ). Opp. Party No. 1 challenged the said order in revision before the Revenue Divisional Commissioner who by the order 30-4-86 in Annexure-3 allowed the revision, reversed the orders of the Certificate Officer, Balasore which was confirmed by the appellate authority and dismissed the application filed under S. 29 (3) of the Act to set aside the sale. This order is under challenge in the writ application. ( 5 ) THE revisional authority while reversing the orders of the Certificate Officer and the appellate authority came to hold as follows: (A) Ramakanta who died much later than the date of sale had not raised any objection to the sale and his son Gangadhar having also not, come forward with any, objection, the, petition filed by Kanungo Narendranath Das and others on 12-6-70 challenging the sale was not maintainable. (B) The petition filed on 12-6-70 by Kanupgo Narendranath Das was time barred as a long time had elapsed between the issue of sale certificate on 28-4-64 and the delivery of possession on 31-1-65. Narendranath's plea of ignorance cannot be accepted. (C) The primary duty of the Certificate Officer is to recover the dues declared as public demand if he is satisfied that it if payable to the Collector and the Act empowers him to sign and file a certificate for its execution as per the provisions of the Act. Once the certificate dues are collected in full, his function ceases. The Certificate Officer is not to decide the right, title and interest of the parties in the case and a dispute of this nature, if any, is to be decided by the Civil Court. (D) Regarding the question of non-substitution of petitioners 10 and 11, the daughters of Rabinarayan Das in the proceeding, the revisional authority held that they were impliedly represented by Dwarikanath who was the Karta of the joint family. Therefore, their non-substitution in the proceeding would not amount to material irregularity so as to vitiate the proceeding. (D) Regarding the question of non-substitution of petitioners 10 and 11, the daughters of Rabinarayan Das in the proceeding, the revisional authority held that they were impliedly represented by Dwarikanath who was the Karta of the joint family. Therefore, their non-substitution in the proceeding would not amount to material irregularity so as to vitiate the proceeding. (E) Regarding the auction price, the authority held that low sale price cannot itself be held to vitiate the sale of the attached property. There was no material irregularity in conducting the sale and therefore the sale could not be set aside. On the aforesaid finding the revisional authority came to the conclusion that the pleas taken by the opp. parties (writ petitioners) regarding the low sale price, nonservice of notice on the certificate debtors and failure to bring on record the legal representatives of a certificate debtor who died during pendency of the execution of the certificate are not material irregularities causing substantial injury to them which warrant setting aside the sale. ( 6 ) THOUGH the impugned order has been challenged in the writ application on several grounds, Shri B. Pal, learned counsel for the petitioners, concentrated on two grounds, that the revisional authority clearly erred in holding that the application to set aside the sale was not entertainable since it was filed beyond the specified period and that the said authority erred in setting aside concurrent findings of the Certificate Officer and the appellate authority that there was no material on record to establish that there was service of notice under S. 7 of the Act on all the certificate debtors. Shri P. Kar, learned counsel appearing for opp. party No. 1, the auction-purchaser, supported the order of the revisional authority. ( 7 ) IT was agreed by the counsel for the parties that the certificate proceeding in this case is governed by the provisions of the Bihar and Orissa Public Demands Recovery Act, 1914 and not the Orissa Public Demands Recovery Act, 1962. We, therefore, proceed to consider this case on that basis. Section 29 of the Act reads as follows:"s. 29. Application to set aside sale of immovable property on ground of non-service of notice or irregularity. We, therefore, proceed to consider this case on that basis. Section 29 of the Act reads as follows:"s. 29. Application to set aside sale of immovable property on ground of non-service of notice or irregularity. (1) Where immovable property has been sold in execution of a certificate, the certificate holder, the certificate debtor, or any person whose interests are affected by sale, may, at any time within sixty days from the date of the sale, apply to the Certificate Officer to set aside the sale on the ground that notice was not served under S. 7 or on the ground of material irregularity in the certificate proceedings or in publishing or conducting the sale. Provided as follows:- (a) no sale shall be set aside on the ground of any such material irregularity unless the Certificate Officer is satisfied that the applicant has sustained substantial injury thereby; and (b) before the Certificate Officer passes an order setting aside a sale under this section he shall require the certificate debtor to pay the amount actually found due from him. (2) Notwithstanding anything contained in sub-section (1) the Certificate Officer may entertain an application made after the expiry of sixty days from the date of the sale if he is satisfied that there are reasonable grounds for so doing. " ( 8 ) ON a plain reading of the provisions quoted above it is evident that the word 'or' in sub-section (1) of S. 29 is disjunctive; in other words, the condition of non-service of notice under S. 7 of the Act, the material irregularity in the certificate proceedings and material irregularity in publishing or conducting the sale are independent of each other. Clause (a) in the proviso applies to a case where the sale is sought to be set aside on the ground of material irregularity. It is therefore clear that if it is established by the applicants that notice under S. 7 of the Act was not served as required under the statute, the sale has got to be set aside. It is neither necessary for the applicants to further show that there was material irregularity in the certificate proceedings or in publishing or conducting the sale, nor it is necessary for the Certificate Officer to be satisfied that the applicants have sustained substantial injury thereby. It is neither necessary for the applicants to further show that there was material irregularity in the certificate proceedings or in publishing or conducting the sale, nor it is necessary for the Certificate Officer to be satisfied that the applicants have sustained substantial injury thereby. In the present case, if it is found that the revisional authority was wrong in setting aside the concurrent finding of the Certificate Officer and the appellate authority that notice under S. 7 of the Act had not been served on all the certificate debtors, then the sale must be said to have been vitiated on that ground alone and the order of the revisional authority rejecting the application filed under S. 29 would be unsustainable. In that event it will not be necessary to consider the further grounds relating to material irregularity in the certificate proceeding and material irregularity in publishing or conducting the sale. ( 9 ) AT this stage it will be convenient to refer to the provisions of S. 7 of the Act which reads as follows"s. 7. Service of notice and copy of certificate on certificate debtor.- When a certificate has been filed in. the office of a Certificate Officer under Sr. 4 or S. 6, he shall cause to be served upon the certificate debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate. "the prescribed form is Form No. 3 of Appendix under Sch. II and the prescribed manner is laid down in Rr. 2 to 6 of the Second Schedule. Under R. 2 in Sch. II, it is provided that service of a notice issued under S. 7, or under any other provision of this Act, shall be made by delivering or tendering a copy thereof, signed by the Certificate Officer or such ministerial officer as he authorises in this behalf, and sealed with the seal of the Certificate Officer. Rule 3 prescribes that wherever it is practicable, service shall be made on the certificate debtor in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Rule 3 prescribes that wherever it is practicable, service shall be made on the certificate debtor in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Rule 4 provides that where the certificate debtor cannot be found, and has no agent empowered to accept service of the notice on his behalf, service may be made on any adult male member of the family of the certificate debtor who is residing with him. Rule 5 provides that where the serving officer delivers or tenders a copy of the notice to the certificate debtor personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original notice. Rule 6 provides that where the certificate debtor or his agent or such other person as aforesaid, refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the certificate debtor, and there is no agent empowered to accept service of the notice on his behalf, nor any other person on whom service can be made, the serving officer shall- (a) affix a copy of the notice on the outer door or some other conspicuous part of the house in which the certificate debtor ordinarily resides or carries on business or personally works for gain; or, (b) if there be land affected by the notice, affix a copy of the notice on some conspicuous place in the office of the certificate officer and also on some conspicuous part of land; and shall then return the original to the Certificate Officer by whom it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house or land was identified and in whose presence the copy was affixed. Under R. 8 it is provided that where a notice is returned under R. 6, the Certificate Officer, shall if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Certificate Officer, or, subject to any general order of the Collector, by an Assistant Collector, Deputy Collector or Sub-Deputy Collector, touching his proceedings, and may make such further inquiry in the matter as he thinks fit; and shall either declare that the notice has been duly served or order such service as he thinks fit. ( 10 ) THERE is no controversy regarding the factual position that in the present case there is no material available on record to show that the notice under S. 7 was served on all the certificate debtors by affixture as alleged by opp. party No. 1. There is also no order recorded in the order sheet that the Certificate Officer on due application of mind to the provisions of the Rules held the service to be sufficient on all the certificate debtors. Taking these facts into consideration, the Certificate Officer and the appellate authority, i. e. the Addl. Dist. Magistrate had held that there was no service of notice under S. 7 of the Act on all the certificate debtors. The revisional authority, as appears from the impugned order, reversed the concurrent findings regarding non-service of notice merely with the observation that the certificate debtors must be taken to have been aware of the proceeding drawing the said inference from certain circumstances stated in the order. In our considered view, the revisional authority was clearly wrong in his finding. The certificate proceeding is a summary proceeding for realisation of dues under the Public Demands Recovery Act. It is a drastic measure for collection of dues and gives a limited scope for objection by the certificate debtors. Therefore Courts have consistently taken the view that the provisions in the Act, particularly those regarding preparation of certificate, service of notice, etc. must be strictly construed and any contravention of the said provisions will vitiate the proceeding. It is a drastic measure for collection of dues and gives a limited scope for objection by the certificate debtors. Therefore Courts have consistently taken the view that the provisions in the Act, particularly those regarding preparation of certificate, service of notice, etc. must be strictly construed and any contravention of the said provisions will vitiate the proceeding. The right of the certificate debtors to file objection which is a valuable right is dependent on service of notice under S. 7 of the Act and non-service of notice deprives the certificate debtors of this valuable right. Therefore, the legislature has provided in S. 29 of the Act that in case it is established that there is no service of notice under S. 7 of the Act that would be a sufficient ground to set aside the sale. The provisions in S. 7 of the Act requiring service of notice in the prescribed form and in the prescribed manner must be in the nature of things to be construed to be mandatory and non-compliance with the same would vitiate the proceeding and entail setting aside the sale under S. 29 of the Act. On perusal of the impugned order of the revisional authority we are constrained to observe that he considered the requirement of service of notice under S. 7 of the Act rather lightly and observed that if impliedly the certificate debtors can be taken to have knowledge of the proceeding, then there would be sufficient compliance of S. 7 of the Act. This impression was clearly erroneous. ( 11 ) THE point that remains to be considered is regarding the finding of the revisional authority that the petition under S. 29 of the Act having been filed long after the period prescribed under the statute was not entertainable. It appears from the order that the authority was not prepared to accept the case of the applicants that they had no knowledge about the sale and on coming to know about it much later filed the application. But the revisional authority failed to take notice of the order dated 17-7-72 passed by the Certificate Officer, Balasore from which it is clear that the question of limitation was expressly raised, parties were heard on the point and on consideration of the facts and circumstances of the case, the Certificate Officer entertained the application, obviously on condoning the delay. But the revisional authority failed to take notice of the order dated 17-7-72 passed by the Certificate Officer, Balasore from which it is clear that the question of limitation was expressly raised, parties were heard on the point and on consideration of the facts and circumstances of the case, the Certificate Officer entertained the application, obviously on condoning the delay. This order was not challenged by the auction-purchaser. The order was clearly within the power of the Certificate Officer as provided under S. 29 (2) of the Act wherein it is provided that notwithstanding anything contained in sub-section (1) the Certificate Officer may entertain an application made after expiry of sixty days from the date of the sale if he is satisfied that there are reasonable grounds for so doing. The aforementioned order having been passed by the Certificate Officer in exercise of power under S. 29 (2) of the Act and the said order having not been challenged, attained finality. It was therefore not open to the revisional authority to re-open the question of limitation and hold that the application was not entertainable being barred by time. ( 12 ) TO prop up the above findings, we may refer to some decisions. In the case of Rajnandan Prasad v. Mukh Lal Gir, reported in AIR 1931 Pat 182, a Division Bench of that Court considering the scope of S. 29 (2) of the Bengal Public Demands Recovery Act observed as follows:". . . . . . . Mr. S. N. Rai further argues that, since by the provisions of S. 45, Public Demands Recovery Act, no suit may be instituted to set aside the sale after more than a year from the date of delivery of possession it ought to be held that the Certificate Officer cannot under S. 29 entertain an application to set aside the sale after a year has elapsed from the date when possession was delivered to the auction purchaser. But sub-sec. (2), S. 29, containing no such restriction; and it is clear that discretion given to a Certificate Officer by that sub-section cannot be treated as limited by the fact that one year is prescribed as the period of limitation for a suit to set aside a sale. But sub-sec. (2), S. 29, containing no such restriction; and it is clear that discretion given to a Certificate Officer by that sub-section cannot be treated as limited by the fact that one year is prescribed as the period of limitation for a suit to set aside a sale. Power is given in the widest terms to the Certificate Officer to entertain an application made after the expiry of sixty days and if he is satisfied that there are reasonable grounds for doing this and if he finds as a fact that notice was not served under S. 7 and that therefore the sale must be set aside, it is not open to a Civil Court to question the propriety of his decision. Mr. S. N. Rai suggests that the Certificate Officer had no power to set aside the sale until he found that the applicant had sustained substantial injury but this provision of S. 29 affects, not cases in which there has been no service of notice under S. 7 but cases in which a sale is set aside on the ,ground of some material irregularity in certificate proceedings other, than failure to serve the necessary notice;" (Emphasis supplied)in the case of Lachmi Kant Deo v. Rameshwar Chaudhury reported in AIR 1948 Pat 104, the Court considering the effect of failure Do, serve notice under S. 7 of the Bihar and Orissa Public Demands Recovery Act made the following observations (para 8):"it has been strenuously argued by Mr. Jha that all the informations that are necessary to' be conveyed to the certificate debtor, namely, the name of the certificate-holder, the name of the certificate debtor, the amount due and the property in respect of which it is due, being there, it shall be held that that amounts to sufficient compliance with the provisions, in other words, it should be held that notice was served on the certificate debtor with a copy of the certificate. He further urges that to hold otherwise would amount to giving preference to mere technicality and form over substance. The argument, though at first sight sounds attractive, does not carry conviction in view of the observations of their Lordships of the Judicial Committee in (1896) ILR 23 Cal 775. He further urges that to hold otherwise would amount to giving preference to mere technicality and form over substance. The argument, though at first sight sounds attractive, does not carry conviction in view of the observations of their Lordships of the Judicial Committee in (1896) ILR 23 Cal 775. Their Lordships have laid down that for this extraordinary procedure of investing a revenue officer with the power of selling a subjects property certain forms have been laid down to be followed and conformed and that in. such proceedings those forms are also matters of substance. They have also said that a certificate is an ex parte decree as it is filed behind the back of the certificate debtor, and the certificate debtor's right to impugn the validity and correctness of the demand is reserved to a stage to come after service of notice under S. 7, and unless you give the certificate debtor a notice with the copy of the decree, he is in fact invited to take exception to the validity or correctness of the demand. Therefore, even though it has the appearance of a mere technicality or a form, it has the value of substance, and I, therefore, hold that in this case copy of the certificate was not served. Mere knowledge of an order could not take the place of its service. " ( 13 ) ON the discussions made in the foregoing paragraphs and in view of the finding that the application under S. 29 was rightly held to be maintainable and notices under S. 7 of the Act had not been served on' all the certificate debtors, the conclusion is inescapable that the sale was rightly set aside by the Certificate Officer and his order was rightly confirmed by the appellate authority. It therefore follows that the revisional authority erred in reversing the said order. ( 14 ) THE writ application is, therefore, allowed, the impugned order in Annexure-3 is quashed and the orders passed by the Certificate Officer in Annexure-1 and that of the appellate authority in Annexure- 2 are confirmed. Both parties will bear their respective costs of this proceeding. Petition allowed.