Case: Ramrao Jankiram Kadam Vs. State of Bombay &amp; Others

Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present."34. As to the applicability of S. 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sales on account of irregularities etc. other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that that sale has to be set aside, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring such a sale, the provision and the bar that it creates have no application.35. Nor is there any scope on the facts of the present case to attract the application of S. 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked: (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector authorising the Mahalkari to offer the nominal bid of Re. 1/- and purchase the property. The question that next arises is whether the Statute had provided an appeal against this "act". It was admitted that there was no such specific provision. Learned Counsel for the respondent however drew our attention to S. 203 of the Bombay Land Revenue Code."203. In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force to that officers immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officers decision or order or not."36. In the present case however, there was no order by any authority which could be the subject of any appeal under S. 203. The Collector authorised administratively the Mahalkari to offer the bid and that is certainly not "a decisions" which is capable of appeal within S. 203. No other order which could by any stretch of language be construed to be a decision was pointed out in respect of which an appeal could have been filed. In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place. If S. 203 is not attracted it was not suggested that S. 11 of the Revenue Jurisdiction Act created any bar to the entertainment of the present suit.37. It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by S. 41 of the Transfer of Property Act. The basis for this argument was that some time after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,000/- from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 for Rs. 1,750/- and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which S. 41 of the Transfer of Property Act was sought to be invoked. The respondent did not rely on any representation or any act or conduct on the part of the appellant but their belief that Government had acquired title by reason of their purchase at the revenue sale.If the Government had no title to convey, it is manifest the respondents cannot acquire any. They would clearly be trespassers. In the circumstances we consider there is no scope for invoking the rule as to estoppel contained in S. 41 of the Transfer of Property Act.38. Lastly, it was submitted that the respondents had made improvements to the property since they had purchased them for which they were entitled to compensation under S. 51 of the Transfer of Property Act. But no basis was laid for this plea which is one of pure fact. No evidence was led and no issues struck before the trial Judge and we do not therefore think it proper to entertain this point at this stage39. The Government of Bombay did not file any written statement before the trial Judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale. If a sale for a nominal bid of one rupee were "a sale by public auction" within S. 167 notice to the defaulter that such a procedure would be followed would be legally unnecessary and would not add to the legal efficacy of the sale. If, on the other hand, such a sale or a sale in such circumstances was not a sale by public auction then notice to the defaulter could be of value only if (a) it operated as a waiver of the requirement of S. 167, or (b) created an estoppel which precluded him from questioning the legality of the proceeding First as to waiver, the power of Government to effect the sale by summary process is a special provision resting on public grounds and being so very special it is clear that the limitations on the power thus conferred should be strictly construed. In our opinion, it is an essential condition of the passing of property from the defaulter in invitum that there should be a sale by public auction and if a sale in the manner in which it has been conducted in the present case does not amount to a sale by public auction there is no question of the title to property passing by virtue of such a sale. The plea of waiver cannot therefore be of any avail.30. Nor is there any basis for any argument that by reason of the notice the defaulter is estopped from questioning the legality of the sale. If waiver cannot cure the defect there is still less scope for invoking the rule as to estoppel, for the essential condition of estoppel, viz., representation by the person sought to be estopped and prejudice to the person seeking the benefit of the rule, would both be absent. We therefore come to the conclusion that the fact that the defaulter was informed that the Government would make a nominal bid of rupee one and purchase the property is really irrelevant for considering the validity of the sale.31. The conclusion we have indicated earlier is in accord with the decision of the Bombay High Court in ILR (1947) Bom 75: (AIR 1947 Bom 403) (supra) and we consider that that case is correctly decided. We are further of Opinion that the ratio of that decision would also cover the case where notice was served on the defaulter of the Governments intention to purchase the property for a nominal price.As to the applicability of S. 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sales on account of irregularities etc. other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that that sale has to be set aside, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring such a sale, the provision and the bar that it creates have no application.35. Nor is there any scope on the facts of the present case to attract the application of S. 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked: (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector authorising the Mahalkari to offer the nominal bid of Re. 1/- and purchase the property.The Government of Bombay did not file any written statement before the trial Judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them.