Manmohan Lal Shukla v. Board Of Revenue, M.P.And Others

Dixit C.J.:-

This is an application under Articles 226 and 227 of the Constitution for quashing a decision of the Board of Revenue by the issue of a writ of certiorari.

2. The material facts are that in recovery proceedings of taccavi loan amount from the respondents Nos. 2 to 4, 19.65 acres of land belonging to the said respondents and situated in village Behiria of Seoni District was sold for a sum of Rs. 1,500 to the petitioner Manmohanlal. The non-applicant No. 2 Jainarayan Dube preferred certain objections to the confirmation of the sale which were all overruled and the sale was confirmed by the Sub-Divisional Officer, Seoni, on 8th October 1960. An appeal preferred by the non-applicante Nos. 2 to 4 before the Commissioner, Jabalpur Division, failed. Thereupon, the said non-applicants presented a revision petition before the Board of Revenue repeating the objections they had taken before the Sub-Divisional Officer and the Commissioner against the confirmation of the sale and also urging that the proceedings for the recovery of the arrears by sale of the holding were illegal and void inasmuch as no notice of demand under section 146 of the Madhya Pradesh Land Revenue Code, 1959, had been served on all the defaulters. The Board of Revenue accepted the contention of the respondents with regard to the absence of notices of demand to all the defaulters and accordingly quashed the proceedings for the recovery of the taccavi arrears and set aside the sale.

3. The learned President of the Board of Revenue has observed that he was not able to find in the record of the case notices of demand served on all the three aforesaid respondents; that the arrears were jointly owed by the three respondents and the holding sold was the joint holding of all of them; that the giving of notices of demand to all the defaulters was necessary according to the decision of this Court in Ghanashyamlal v. State of M. P., 1961 MPL J Note No. 218 (M. P. No. 86/61.D/- 31-8-1961.) that the rule laid down in that decision would apply even if it be assumed that the recovery proceedings were under sections 134 and 135 of the Madhya Pradesh Land Revenue Code, 1954; and that even if the non-applicant No. 4 Lachhobai was served with a notice of demand as stated by the Commissioner in his order, the fact remained that the other two joint owners of the holding, namely, non-applicants Nos. 2 and 3, were not served with notices of demand.

4. Before us Shri Dharmadhikari, learned counsel appearing for the peti­tioner, urged three contentions. First, it was said that as Jainarayan Dube actually appeared in the recovery proceedings and filed an application on 30th May 1960 on his behalf and on behalf of Lachhobai and Shivnarayan Dube for the sale by auction of a specific piece of land mentioned in his application, the objection that no notice of demand had been served on Jainarayan and Shivnarayan Dube could not be availed of by them for contesting the validity of the recovery proceedings. Secondly, it was argued that the notice of demand served on Lachhobai was actually received by Jainarayan Dube and consequently he should be deemed to have been served with a notice of demand. Learned counsel did not contend that if the taccavi loan was owed jointly by the non-applicants Nos. 2 to 4 and the holding was joint, then a notice of demand to one of the defaulters was a notice to all the defaulters. He, however, submitted that the taccavi was advanced to the joint family of the said opponents, and that being so, notice of demand to the karta was sufficient. Lastly, it was said that the decisions in Narayansingh v. Board of Revenue, 1962 MPLJ 281. Ghanshyamlal v. State or M.P., 1961 MPL J Note No. 218 (M. P. No. 86/61.D/- 31-8-1961.) and Premchand v. Board of Revenue, 1963 MPLJ Note No. 10 (M. P. No. 241/62, D/- 26-10-1962.) holding that the issue of a notice of demand under section 127 of the Central Provinces Land Revenue Act, 1917, or under section 134 of the M. P. Land Revenue Code, 1954, or under section 146 of the M. P. Land Revenue Code, 1959, to the defaulter is obligatory and that without the issue of a notice of demand no step for the recovery of any amount as an arrear can be taken under section 128 of the C. P. Land Revenue Act, 1917, or under section 135 of the M. P. Land Revenue Code, 1954, or under section 147 of the M. P. Land Revenue Code, 1959, required reconsideration.

5. In our judgment, all these contentions are of unsubstantial character. The effect of the decisions of this Court in Ghanashyamlal v. State of M. P., 1961 MPLJ Note No. 218 (M. P. No. 86/61, D/- 31-8-1961) and Premchand v. Board of Revenue, 1963 MPLJ Note No. 10 (M. P. 241/62, D/- 26-10-1962) is that the provisions contained in sec­tion 134 of the M. P. Land Revenue Code, 1954, and section 146 of the M. P. Land Revenue Code, 1959, with regard to the issue of a notice to the defaulter are mandatory and that no proceedings under the next following sections in those Acts can be initiated unless and until a notice of demand is served on the defaulter; that the word 'may' used in section 134 of the 1954 Code or in section 146 of the 1959 Code has the imperative meaning of "shall"; and the object of the issue of a notice of demand before issuing any process for the recovery of any amount as arrears due from the defaulter is to afford an opportunity to the defaulter to make the payment of the arrears due from him before any drastic action is taken against him for the recovery of the amount; and that it is at the stage before the issue of actual process under the coercive provision contained in section 135 of the Code of 1954 and section 147 of the Code of 1959 that the defaulter must be served with a notice so that he should be heard before any step for the recovery of the arrear amount is taken against him. If, then, the issue of a notice of demand to the defaulter is obligatory before any process for recovery of arrears is actually issued, the fact that even when no notice of demand had been issued, the defaulter appeared and parti­cipated in the proceedings taken for the recovery of the arrear amount and made certain applications can be of little consequence. The appearance of a defaulter in such a case in no way implies the waiver of a notice of demand on his part. It can be construed as a step taken by him for the purpose of safeguarding as much as possible his interest in the proceedings initiated for the recovery of the amount without issuing a notice of demand to him. The contention advanced on behalf of the petitioner that as Jainarayan Dube appeared in the recovery proceedings and also preferred an application on 30th May 1960 and that, therefore, the ground of absence of notice was not available to him must be rejected.

6. The finding of the Board of Revenue that notices of demand were not served on Jainarayan and Shivnarayan Dube is a finding of fact which must be accepted in these proceedings. Learned counsel for the petitioner did not say that notices of demand were served on them. His argument was that a notice of demand was issued to Lachhobai and that as that notice was received by Jainarayan he should be regarded as having been served with a notice of demand-We are unable to see on what principle this can be done. Clearly, a notice of demand issued to and in the name of Lachhobai cannot be regarded as a notice of demand to Jainarayan or Shivnarayan Dube. Learned counsel for the applicant suggested that the observation in Board of Revenue's decision that the arrears were jointly owed by the three non-applicants and the holding was their joint holding was not accurate; and that, in fact, the taccavi loan was to their joint family. If the Board of Revenue has proceeded on some misconception of facts, then the petitioner's obvious remedy is to apply for a review of the Board's decision, if one is permissible. Even if it be assumed that the taccavi loan was to the joint family of the non-applicants Nos. 2 to 4, that by itself cannot advance the petitioner's case any further when there is nothing to show that even in the presence of Jainarayan and Shivnarayan Dube, Lachhobai acted as the karta of the family. If she did not so act, then a notice of demand to her cannot be regarded as a notice of demand to the manager of the joint family. The petitioner's contention that the notice of demand issued to Lachhobai was sufficient in the case is altogether untenable.

7. In regard to the decision referred to above, learned counsel for the peti­tioner said that the view taken in those decisions that the issue of a notice of demand was necessary before sale was contrary to the decision of a Division Bench of this Court in Surajdeen v. Ishwari Prasad, 1938 NLJ 342=AIR 1938 Nag. 654=ILR 1938 Nag. 550 that in Narayansingh v. Board of Revenue, 1962 MPLJ 281 the significance of the words "if he thinks fit" which occur in section 127 of the C. P. Land Revenue Act, 1917, was overlooked; that in the other cases the decision in Surajdeen's case, 1938 NLJ 342=AIR 1938 Nag. 654=ILR 1938 Nag. 550 was not noticed and that in the case of Ghanshyamlal, 1961 MPLJ Note No. 218 (M. P. No. 86/61, D/- 31-8-1961) the attention of the Court was not drawn to section 42 of the M. P. Land Revenue Code, 1959.

8. In our opinion, the weight of authority of the decisions to which we have referred is in no way lessened by this criticism made by the learned counsel for the petitioner. In Narayansingh's case, 1962 MPLJ 281 Pandey J. recognized the fact that section 127 of the C. P. Land Revenue Act, 1917, as worded, did not oblige the Tahsildar to cause a notice of demand to be served on any defaulter. He observ­ed in that case-

"Although it appears that section 127 did not oblige the Tahsildar to cause a notice of the demand to be served on any defaulter, rule 1 reproduced above did make it compul­sory."

He thus gave due weight to the words "if he thinks fit" occurring in section 127 but based his conclusion with regard to the requirement of the issue of a notice of demand on the wording of the rules framed under sections 127 and 128, read with section 227 (2) (k) of the C. P. Land Revenue Act, 1917. Pandey J. also referred to the following observations in Surajdeen v. Ishwari Prasad, 1938 NLJ 342=AIR 1938 Nag. 654=ILR 1938 Nag. 550:

"It must be observed at the outset that it is not obligatory on the Tahsildar to cause notice of the demand to be served on any defaulter; it is a step which under section 127 depends on the discretion of that officer."

He, however, said that these observations were not necessary for the conclusion reached in Surajdeen's case, 1938 NLJ 342=AIR 1938 Nag. 654=ILR 1938 Nag. 550 that a simple mortgagee, not being an assignee, was not a defaulter, and was, for that reason, not entitled to a notice under section 127. In our judgment, Pandey J. rightly regarded the observations reproduced above in Surajdeen's case, 1938 NLJ 342=AIR 1938 Nag. 654=ILR 1938 Nag. 550 as obiter. It is plain that when in that case the simple mortgagee was not regarded as a defaulter at all, then the question of any notice of demand to him could not at all arise. It was for this reason that no reference was made to the decision in Surajdeen's case, 1938 NLJ 342=AIR 1938 Nag. 654=ILR 1938 Nag. 550 in Ghanshyamlal v. State of M. P., 1961 MPLJ Note No. 218 (M. P. No. 86/61, D/- 31-8-1961) and Premchand v. Board of Revenue 1963 MPLJ Note No. 10 (M. P. No. 241/62, D/- 26-10-1962) In fact, in the latter case the decision of Pandey J. in Narayansingh's case, 1962 MPLJ 281 was referred to with approval. It must, however, be noted that in section 134 of the M. P. Land Revenue Code, 1954 and in section 146 of the M. P. Land Revenue Code, 1959, the words "if he thinks fit" do not occur.

9. It is true that in Ghanahyamlal's case, 1961 MPLJ Note No. 218(MP No. 86/61, D/-31-8-1961.) no reference has been made to section 42 of the M. P. Land Revenue Code, 1959. But that provision has no bearing at all on the question of the invalidity of proceedings under section 147 in the absence of a notice to the defaulter under section 146. Section 42 reads as follows :-

"No order passed by a Revenue Officer shall be reversed or altered in appeal or revision on account of any error, omission or irregularity in the summons, notice, proclamation, warrant or order or other proceedings before or during any enquiry or other proceedings under this Code, unless such error, omission or irregularity has in fact occasioned a failure of justice.

Explanation. - In determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, regard shall be had to the fact whether the objection could and should have been raised at an earlier stage in the proceed­ings."

This provision only says that no order of a Revenue Officer shall be reversed or varied in appeal or revision if there has been any error, omission or irregularity in the summons, notice, proclamation, warrant or order or in any proceedings unless such error, omission or irregularity has in fact occasioned a failure of justice. It clearly does not cover an error, omission or defect affecting juris­diction of the Revenue Officer. The errors, defects or omission spoken of by section 42 are procedural errors or defects and not jurisdictional errors or defects.

10. For these reasons, our conclusion is that the Board of Revenue rightly quashed the recovery proceedings and set aside the sale of the holding. This petition is, therefore, dismissed with costs of non-applicants Nos. 2 to 4. Coun­sel's fee is fixed at Rs. 100. The security deposit after deduction of costs shall be refunded to the petitioner.

Petition dismissed.