Summary
The appellant was alleged to have misap- propriated a sum of Rs. 12,163.50 [though acquitted of the charge of misappropriation]
and for the recovery thereof his 13.07 acres of coffee estate was brought to sale under the Tamil Nadu Revenue Recovery Act, 1894.On March 30,1979 the sale by public auc- tion was held by the Tehsildar. The first respondent purchased the said estate for a sum of Rs. 12,225 and deposited a sum of Rupees 2000 being 15% of the sale price. Under sec- tion 36 of the Act, he should have deposited the balance consideration within 30 days from the date of the auction. This sale was con- firmed on October 23,1981 and the balance amount was deposited on November 4, 1981.So the appellant filed an application to set aside the sale but the Revenue Divisional Officer overruled the objections and dismissed the application. On appeal to Additional District Collector on October 13, 1982, the sale was set aside. So the first respondent filed writ petition in the High Court and the single High Court Judge quashed the order of the Additional District Collector. The writ appeal by the appellant to the Division Bench was also dismissed. Hence the appellant came to this Court.The appellant urged that under section 36 of the Act it is mandatory that the date and place of sale 'shall' be published in the Gazetee and that the publication did not mention the place of sale so the sale is invalid in law. It was further submitted that it was equally mandatory that the balance sale consideration of 85% should be deposited within 30 days from the date of sale which was done by the first respondent only on November 4, 1981 long after one year 182and eight months of the date of sale and therefore illegal. While the first respondent contended that it was Form 7 and not Form 7A that would be applicable to the facts of the instant case and that Form 7 contains the place o[ sale and that it was complied with.Therefore, the said sale is not illegal. It was further submitted that the deposit was made after protracted correspondence and that the non-deposit within 30 days from the date of sale is not illegal since the deposit was accepted by the authority. Therefore the confirmation of the sale is not illegal.Granting the special leave, dismissing the writ Petition, setting aside the Judgment of the High Court, and restoring the order of the Additional District Collector, the CourtHELD: That in the instant case, the High Court has wholly misconceived section 36 of the Act. A reading of the said section mani- fests that the word 'shall' is mandatory in the context. The publication is an invitation to the intending bidders to prepare an partic- ipate at the bid. Unless there is due publica- tion of the date and the place of sale, the intending purchasers cannot be expected to run after the sale officer. The sale officer has a statutory duty and a responsibility to have the date and place of sale mentioned in the notice giving due, publication in terms of the Act and the Rules. Public auction is one of the modes of sale intending to get highest competitive price for the property and it also ensures fairness in actions of the public authorities or the sale officers who should act fairly objectively and kindly. Nothing should be suggestive of bias favouritism nepotism or beset with suspicious features of under bidding detrimental to the legitimate interest of the debtor. [184 F, G 1 85 A]Further it is settled law that the word'shall' be construed in the light of the purpose of the Act or Rule that seeks to serve. Even though the word 'shall' be ordi- narily mandatory but in the context or if the intention is otherwise it may be construed to be directory. The construction ultimately depends upon the provision itself. Considered from this prospective of non-compliance of section 35 that is comission to mention the place of sale would visit the deprivation of the property to the debtor for an adequate consideration due to absence of competing bidders. Hence the specification of the date & place of sale 'shall' be mandatory. The forms either 7 or 7A are only procedural and they should be in conformity with section 36. The form cannot prevail over the statute. The omission of specification of the place of sale in the form renders the sale not merely irreg- ular but also invalid. [185 C; H - 186 B]183 Equally the second objection is insur- mountable. It is mandatory that the balance of the sale amount shall be remitted within 30 days from the date of auction and if not the earnest money deposited is liable to forfei- ture. Section 36 mandates remittance of the balance of 85% of the sale consideration within 30 days from the date of auction. It is obligatory on the purchaser to deposit the amount within the period unless prevented by an order of the Court or Tribunal. So the confirmation of sale without compliance is illegal and the sale is vitiated by manifest error of Law & rightly set aside by the Addi- tional District Magistrate. The High Court has committed error in law in interfering with the order of the appellate authority. [186 B-D]See the full content of this document
Extract
Lakshmanasami Gounder VS. C.I.T. Selvamani And Ors.
PETITIONER: LAKSHMANASAMI GOUNDER Vs.RESPONDENT: C.I.T. SELVAMANI AND ORS.DATE OF JUDGMENT01/11/1991BENCH: RAMASWAMY, K.BENCH: RAMASWAMY, K.PANDIAN, S.R. (J)CITATION: 1991 SCR Supl. (2) 181 1992 SCC (1) 91JT 1992 (2) 298 1991 SCALE (2)956ACT: Tamil Nadu Revenue Recovery Act, 1894:-- Sections 36 & Forms 7 and 7.4---Omission of specification of place of sale----Sale rendered irregular and invalid.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.4380 of 1991....
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