Kotval, J.
1. This is an appeal under Clause 10 of the Letters Patent of the then High Court of Judicature at Nagpur upon leave granted by Mr. Justice P.P. Deo. The appeal comes before this Court pursuant to a certificate issued by the learned Chief Justice of the High Court of Madhya Pradesh under Section 59 of the States Reorganization Act.
2. The subject-matter in dispute in appeal is a field, survey No. 23, area 29 acres 25 gunthas, situated in the village Walki, tahsil and district Amravati. This field belonged to the respondent Dharamchand who is a resident of Calcutta. The appellant Gangaram was at all material times the working patwari of the village Walki. Under Section 140 of the Berar Land Revenue Code, the Deputy Commissioner, Amravati, having certified that the respondent was in arrears of land revenue amounting to Rs. 58-15-3 in respect of the year 1940-41, the said field was put to auction by the revenue authorities on April 24, 1941, at Badnera. At the auction the appellant patwari bid along with one other-person and obtained the field for a sum of Rs. 85. The sale was originally fixed to be held on April 23, 1941, at Badnera, but the Additional Naib Tahsildar sitting at Amravati ordered its postponement to the next day, that is, April 24, 1941, on which day it was sold as stated above. The respondent's application to set aside the sale was rejected by the Sub-divisional Officer, and successive appeals to the Deputy Commissioner and the Commissioner, and a revision application to the Board of Revenue were dismissed, as a result of which the respondent filed the present suit on March 10, 1950.
3. The respondent alleged that the sale was for a very inadequate price and the field was worth Rs. 4,500. He also alleged that the appellant who was a patwari played a fraud upon him and upon the revenue authorities in so far as he suppressed his own identity as patwari of the village Walki and kept that fact and the publication of the sale suppressed, with the result that only one other bidder appeared at Badnera and the patwari himself was enabled to purchase it. Moreover, it was alleged that the respondent was a resident of Calcutta and had no notice whatsoever of the sale or that arrears of land revenue were being demanded from him, and that the appellant patwari falsely represented to the revenue authorities that the respondent had knowingly evaded payment of land revenue in spite of demand, though no demand was ever made.
4. The trial Court rejected these pleas of the plaintiff-respondent and dismissed his suit. But in appeal the Second Additional District Judge, Amravati, reversed this decision. The Second Additional District Judge, held that the appellant patwari had incorrectly represented that the full address of the respondent was not known though he knew it, and therefore the Deputy Commissioner decided not to issue notice. The appellate Court also held that the field had fetched an extremely low price and that it was worth more than Rs. 4,000 even in 1941. Lastly, the appellate Court held-and it is this finding with which we are here primarily concerned-that no demand notice was ever issued to the respondent nor a notice of the sale proclamation. The appellate Court, relying upon the decision in Kanhayalal v. Reginald [1951] Nag. 422, applied the maxim audi alteram partem and held that though the Berar Land Revenue Code did not require such notice, that was a rule of natural justice and, therefore, the sale on that ground alone could be set aside. The appellate Court, therefore, did not go into the other questions involved in the suit.
5. In second appeal Mr. Justice Deo affirmed the decision of the Second Additional District Judge on the short ground that the decisions in Wasudeo v. Namdeo [1952] Nag. 172, and Kanhayalal v. Reginald (cit. sup.) concluded the main question in appeal before him. He however granted leave to appeal on the following ground:
Since an appeal is pending before the Supreme Court from the decision in Kanhayalal v. Reginald, leave is granted to the appellant under Clause 10 of the Letters Patent.
6. Now, before we proceed to consider the questions raised by Mr. Chandurkar on behalf of the appellant in this appeal, it is necessary to notice that upon the particular point raised before us, the Supreme Court of India did not give any decision. The judgment of their Lordships of the Supreme Court is reported in Kanhaiyalal v. Dr. D.R. Banaji. : [1959]1SCR333 . In Kanhaydial's case also the sale was under the Berar Land Revenue Code. In that case, the sale was challenged before the then Nagpur High Court on two grounds, one was that no notice had been given of the sale to the judgment-debtor and, therefore, the sale was void because a principle of natural justice had been infringed. The other point canvassed in that case was whether a sale made without the permission of the Bombay High Court which had appointed a receiver of the properties sold was void. The Division Bench held that a sale without the leave of the Court appointing the receiver was not void but was liable to be set aside by the receiver in appropriate proceedings. On the other point, it held that the sale was void for want of notice.
7. When the matter went before their Lordships of the Supreme Court, they reversed the decision of the Nagpur High Court on the former question. They held that a sale without leave of the High Court appointing the receiver was altogether void and not merely liable to be set aside at the instance of the receiver in appropriate proceedings. Having so held, their Lordships observed that they were, therefore, not called upon to decide the other question on which the sale was impugned, namely, the question whether a rule of natural justice had been infringed because no notice had been given to the judgment-debtor prior to the sale. In para. 13 of the judgment, Mr. Justice Sinha expressly observed as follows (p. 731):.The High Court has also relied upon the well-known rule of natural justicetudi alteram partem-as another reason for holding the sale to be illegal. It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute.
8. Mr. Chandurkar urged that in view of the decision of their Lordships of the Supreme Court in Kanhaiyalal v. Dr. D.R. Banaji (cit. sup.), the binding force of the authority of Kanhaiyalal v. Reginald (cit. sup.) has been taken away. It may be that upon the point before us the decision in Kanhayalal v. Reginald was not affirmed by the Supreme Court, but neither has the point decided therein been disapproved or reversed.
9. The principle of law expressed by the maxim audi alteram partem has been uniformly acceptd in English Courts for over 150 years. The principle is thus expressed in Craies on Statute Law, fifth ed. (pp. 112-3) :
Again, it being a recognised right that 'no man is to be deprived of his property -without his having an opportunity of being heard' [Cooper v. The Wandsworth Board of Works (1863) 14 C.B. 180, it was laid down in that case by Byles, J. that, 'although there may be no positive words in a statute requiring that a party shall be heard, yet a long course of decisions, beginning with Dr. Bentley's case (2 Ld. Raymond 1334), established that the Justice of the common law will supply the omission of the Legislature.
In Cooper v. The Wandsworth Board of Works (cit. sup.), the Board of Works gave a notice to the owner of a partly built house to demolish it and when it was not complied with, the Board through its servants got the building demolished themselves without any notice to the builder of the house. The Board of Works sought to justify their action under the provisions of the 76th section of the Metropolis Local Management Act which empowered them to take such action. In holding that although the words of the statute taken in their literal sense without any qualification at all would create a justification for the act which the Board had done, the Court held that the powers granted by the statute were subject to a qualification which had been repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard. Willes J. expressed the rule thus (p. 190) :. I apprehend that a Tribunal which is by law invested with power to affect the property of one of her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds: and that that rule is of universal application, and founded upon the plainest principles of justice.
The same was the view taken in Painter v. Liverpool Gas Co. (1836) 111 E.R. 478. In that ease, a, gas light company established by statute made a demand for rent due from the appellant Fainter for gas supplied to him. By the statute they were given powers in case of non-payment to recover the rent by issue of a warrant and the statute provided that it shall be lawful for the company to levy the sum so due by distress and sale of the goods of the party so neglecting or refusing to pay. After making a demand, the gum light company issued a warrant and without previously summoning or hearing the party to be distrained upon, realized the amount. Here again, the Court read into the provisions of the Act the duty to hear the party before issuing the warrant, founding it upon principles of natural justice. Lord Chief Justice Denman observed (p. 443) :.But, in the present case, I am of opinion that the warrant ought to have been issued upon summons of the party. The warrant states that the plaintiff, having contracted with the defendants for a supply of gas from them, refused, after demand made in writing, to pay the rent due to them for gas consumed by him, whereof he was duly convicted. The very terms of this warrant, referring to a conviction, make it evident that the party ought to have been summoned to shew either that he had not refused to pay, or that he had an excuse for not paying. Therefore we are called upon by general principles to say that this warrant is illegal, because the party against whom it is issued had no opportunity given him of shewing that he ought not to be convicted.
In the same case, the learned Chief Justice referred with approval to the remarks of Lord Kanyon in Harper v. Carr (1797) 7 T.R. 270 :.It is an essential rule in the administration of justice that no man shall be punished without being heard in his defence; the party must be summoned before a warrant of distress is granted, as we decided in R. v. Benn; and on that summons many circumstances may appear to shew that a warrant of distress ought not to be granted.
10. In the instant case, such circumstances are also found proved. The Courts 'below found that the respondent was a resident of Calcutta and the field was sold at Badnera; no demand for the arrears was made by the patwari though the latter had falsely represented that he had made such a demand and had also falsely stated to the Tahsildar that he did not know the correct address of the respondent,
11. Mr. Chandurkar also brought to our notice a decision of the Nagpur High Court in Provincial Government, Central Provinces and, Berar v. Ramsing On-kardas, (1943) Second Appeal No. 320 of 1940, decided on March 15, 1943, by Pollock J., (Unrep.) where Pollock J. has observed that no notice to a defaulter is required by the Code. The observation was made in the peculiar circumstances of that case. There the recorded holder of a field had died but the legal representatives had carelessly not got his name removed from the revenue records nor substituted their own. Therefore, the revenue authorities issued a prohibitory order to the deceased recorded holder but without notice to his heirs and the field was sold. It was under these circumstances that the sale was upheld. In that case a prohibitory order had been served albeit on a dead person and in ignorance of his death and, therefore, that was not a ease, as here, where jio notice at all was ever served or attempted to be served. Moreover, in that...case the want of notice to the legal representatives was not attacked upon the wider principle that it was opposed to natural justice, as it has been before us.
12. The decision of the learned single Judge was, in our opinion, a correct decision and we say so with respect. We hold that though the provisions of the Berar Land Revenue Code do not prescribe that a notice shall be given before the property of a defaulter is sold, it is a principle of natural justice that the defaulter shall receive such a notice before his property is sold. Therefore, in the absence of any notice the sale was liable to be set aside. This is sufficient to dispose of this appeal and we need not go into the other questions canvassed on behalf of the appellant by Mr. Chandurkar or any of the other questions which the Courts below left open upon the respective conclusions to which they came. The appeal is dismissed with costs.