Ismail, C.J.
1. This is an appeal against the judgment of Ramanujam, J., dated 20th November, 1975 rendered in Writ Petition No. 2956 of 1972. The learned Judge disposed of two writ petitions, one W.P. No 9255 of 1972 filed by the appellant herein and the other filed (K.V. Paramasivam Pillai v. Angalammai Ammal and 2 Ors. W.P. No. 4576 of 1975, by the fourth respondent herein, by a common judgment. For the purpose of understanding the controversy between the parties, it is necessary to refer to certain facts.
2. The appellant was the original owner of Survey Nos. 163/1 and 163/3 of an extent of 3.20 and 0.20 acres respectively in Ariyamangalam village, Diruchirapalli taluk. She had borrowed a sum of Rs. 1,600 on 21st October, 1957 from the Government for the installation of a pump set in the well situated in those lands under Taluk L. O. No. 22 of 1967. She had earlier borrowed two loans from two creditors on the security of her lands. One of the creditors filed O.S. No. 660 of 1958 on the file of the District Munsif's Court, Tiruchirapalli, for recovery of the amount due to him. In execution of the decree obtained in that suit, the said lands were brought to sale and actually sold in Court-auction to one Shanmugham Chettiar, subject to the Government loan of Rs. 1,600 and the said sale was duly confirmed The auction-purchaser Shanmugham Chettiar applied to the Revenue authorities for payment of the loan amount outstanding on the lands and by proceedings dated 2nd January, 1963, the auction-purchaser was directed to pay a sum of Rs. 2.126.67 in full discharge of the Government loan due by the appellant herein. Accordingly, the auction-purchaser paid the sum on 5th January, 1963. Meanwhile at the instance of the appellant herein, the District Court, Tiruchirapalli in C.M.A. No. 106 of 1961 set aside the Court-auction-sale held in favour of Shanmugham Chettiar. The appellant thereafter filed E. A. No 2007 of 1965 for restitution by way of redelivery of the lands and succeeded in getting possession of the property from the auction-purchaser. The result of this was that the ownership to the property of the appellant herein was restored : In view of this, the District Revenue Officer on 15th October, 1968 directed that the sum of Rs. 2,126.67 remitted by the auction-purchaser Shanmugham Chettiar towards Loan No. 22 of 1967 should be refunded to him and that the security land in S. Nos. 163/1 and 163/3 of Ariyamangalam Village should be attached and proceeded for the realisation of the loan amount from the appellant herein. Accordingly, action was taken for the re-payment of the amount to Shanmugham Chettiar and for recovery of the amount due to the Government under the Tamil Nadu Revenue Recovery Act, 1864(Tamil Nadu Act II of 1964 hereinafter referred to as the Act) against the appellant herein.
3. During the course of these proceedings, the appellant took up the stand that the auction-purchaser having paid the loan amount in her name, the loan should be taken to have been discharged and therefore the amount paid by the auction-purchaser should not have been returned to him without reference to her and the loan amount having been discharged by payment, there was no liability on her part to pay the amount again to the Government. The Revenue authorities did not accept this stand of the appellant and therefore brought the lands for sale under the Act. On 2nd June, 1970 the lands were actually sold in favonr of the fourth respondent herein, the petitioner in W.P. No. 4576 of 1975. The appellant did not file an application to set aside the sale as per Section 37-A However, she filed an application under Section 38 which was not successful. The revenue sale was actually confirmed on 17th August, 1972 by the third respondent, namely, the Revenue Divisional Officer, Tiruchirapalli. The appellant thereafter filed Writ Petition No. 2956 of 1972 to quash the proceedings of the third respondent confirming the revenue sale contending that the revenue sale itself was illegal. Subsequent to the filing of the said writ petition by the appellant herein, the Government passed an order in G.O. Ms. No. 620 Revenue, dated 14th March, 1975 on the report of the Board of Revenue to the effect that as the appellant had disputed the liability to pay the loan amount, the Collector without deciding the question of liability, should not have directed the sale of the property in revenue auction and that therefore the writ petition filed by the appellant cannot be successfully defended. In this view, the Government had asked the Pleader to request the Court to set aside the sale and remit the case to the Collector with a direction to decide the question of liability before invoking the Revenue Recovery Act. The fourth respondent herein thereafter filed Writ Petition No 4576 of 1975 challenging the validity of the said Government Order dated 14th March, 1975. Ramanujam, J., by the impugned judgment dismissed both the writ petitions. The dismissal of W.P. No. 4576 of 1975 has become final because no further proceedings have been instituted against the judgment of Ramanujam, J. It is as against the dismissal of W.P. No. 2956 of 1972, the owner of the land has filed the present appeal.
4. Learned Counsel for the appellant contends that Ramanujam, J., was in error in holding that the revenue auction sale was conducted in accordance with law and therefore it was not illegal. For the purpose of appreciating this argument, it is necessary to mention the grounds urged before the learned Judge. The judgment of the learned Judge itself points out that according to the appellant herein the entire sale proceedings are illegal and invalid for three reasons, namely, (1) that the loan amount was not outstanding on the date of sale, (2) that the provisions of the Revenue Recovery Act and the principles of natural justice had been violated, and (3) that the lands are worth more than Rs. 60,000 and they have been sold for a sum of Rs. 8,100. All the said three objections set out in the judgment of the learned Judge had been rejected and those objections were repeated before us in support of the present appeal,
5. As far as the first objection is concerned, we have no hesitation in holding that there is no substance whatsoever in the same. Once the execution sale was set aside at the instance of the appellant herein and the appellant got restitution by way of getting back possession of the property, the question of the former execution purchaser having discharged the loan due by the appellant herein to the Government did not arise. Shanmugham Chettiar when he paid the amount to the Government did not pay the same as the agent of the appellant heroin or on her behalf or under her instructians. At the time when the amount was paid by him, he had purchased the property in the Court-auction-sale and the sale had been confirmed and consequently, he had paid the amount as successor-in-interest of the appellant herein in his own right and not on behalf of the appellant. Once the Court-auction-sale was set aside and the appellant obtained restitution, Shanmugham Chettiar became a stranger to the property and even on the, date when he paid the amount, he must be deemed to have been a third party having nothing to do either with the property or with the appellant herein. Under those circumstances, the amount paid by Shanmugham Chettiar was rightly directed to be refunded, and the appellant having pursued the matter regarding the Court-auction-sale cannot now say that what was paid by Shanmugham Chettiar was towards the discharge of her loan and his payment must be taken to be a payment by her and therefore the loan was not outstanding on 2nd June, 1970 when the property was sold by revenue auction.
6. As far as the second objection is concerned, two aspects of that objection would appear to have been placed before the learned Judge and the learned Judge in his judgment has dealt with the same. One objection is in relation to the failure to comply with the requirements of Section 36 of the Revenue Recovery Act. One of the the requirements of Section 36 of the Act is that previous to the sale, the Collector or other officer empowered by the Collector in that behalf, shall issue a notice thereof in English and in the language of the district, specifying the name of the defaulter; the position and extent of land and of his buildings thereon; the amount of revenue assessed on the land, or upon its different sections; the proportion of the public revenue due during the remainder of the current fasli; and the time, place, and conditions of sale. This notice shall be fixed up one month at least before the sale in the Collector's office and in the taluk cutcherry. in the nearest police station-house, and on some conspicuous part of the land. One of the objections raised by the appellant was that the notice referred to in this section had not been fixed up on some conspicuous part of the land as required by Section 36 of the Act. Ramanujam, J., found as a fact that the notice was not fixed up on some conspicuous part of the land. Notwithstanding this finding, the learned Judge went on to state that this failure on the part of the authorities herein did not invalidate the sale.
The learned Judge observes as follows:
Thus, the only illegality pointed out and established is that the sale proclamation has not been affixed in the sale land. The question is whether that will invalidate the revenue sale. In Bommayya Naidu v. Chidambaram Chettiar I.L.R. (1899) Mad. 440, a Division Bench of this Court dealing with the scope of Section 38 of the Revenue Recovery Act held that where the only irregularity shown was an omission to display the notice of sale in the Collector's office and where there was no evidence to show that this has affected the attendance of buyers at a place many miles distant where the sale actually took place, such' an irregularity cannot be said to have caused substantial injury or loss and that, therefore, the sale cannot be set aside by a civil Court. In that case, the Court also held that where a party seeks to set aside a revenue sale in a civil Court on the ground of irregularity or mistake in the conduct of sale, be must establish, as In proceedings under Section 38, that substantial injury has been caused by such irregularity or mistake and though direct evidence of such substantial injury is not necessary to connect inadequacy of the price realised with a material irregularity, where the latter has been proved, the relation of cause and effect between the two may be inferred where such inference is reasonable. In Naganna v. Venkatrayulu , the Judicial Committee had to deal with the effect of irregularity in not affixing the sale notice in the Collector's Office under the Code of Civil Procedure. It was argued that though that irregularity has been established, it has caused no substantial injury and that therefore the sale cannot be set aside. In that connection, the Judicial Committee expressed:In order to set aside a sale under Order 21, Rule 90, it should be proved : (1) that there was material irregularity or fraud in publishing or conducting the sale; and (2) that the applicant had sustained substantial injury by reason of such irregularity or fraud. Mere irregularity or fraud in publishing or conducting the sale will not entitle the Court to set it aside, unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud...- - - - It appears to their Lordships that upon the language of the proviso as it now stands, what is required is that the Court should be satisfied that the applicant has suffered substantial injury by reason of the material irregularity or fraud, and if the Court is so satisfied from the facts proved, then the applicant may be said to have discharged his burden. Their Lordships think that this burden may be discharged not only by direct evidence connecting the material irregularity or fraud with the substantial injury, but also by circumstantial evidence, that is evidence from which a reasonable inference may be drawn that the substantial injury was the result of the material irregularity of fraud, as pointed out in Ramasesha Iyer v. Ramanujachartar : AIR1935Mad459 , where all the relevant decisions have been considered. The Madras and Calcutta High Courts have always been of this opinion.
Ramanujam, J , thereafter extracted another portion of the judgment of the Privy Council dealing with the irregularity in no-affixing the sale proclamation in the Collector's Office as prescribed in Order 21, Rule 54 read with Rule 67 of the Code of Civil Procedure. After extracting the said passage, the learned Judge proceeds to state as follows:
It is true in this case the sale notice has not been affixed on the sale land and that is an irregularity. The question is whether it is a material irregularity which will vitiate the sale. The petitioner has not adduced any material to indicate that the non-affixture of the sale notice in the sale land has resulted in any substantial injury. The petitioner, in all her representations before the authorities and in the affidavit filed in support of the writ petition has not alleged that the non-affixture of the sale notice has led to any substantial injury. There is also no material to indicate that the price fetched in the revenue sale is low compared to the actual market value of the land. Though the petitioner has alleged in the affidavit in support of the writ petition that the price fetched is inadequate, she has not attributed that alleged inadequacy of price to the non-affixture of the sale notice in the sale land. Inadequacy of price may be susceptible of other explanations such as the apprehension on the part of the bidders that the purchaser will probably be involved in litigation. It cannot therefore be inferred that inadequacy of the price if any is a direct result of the said non-affixture of the sale notice in the sale land.
7. Section 38 of the Revenue Recovery Act 1864, in Sub-section (1) thereof provides that at any time within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity, of mistake or fraud, in publishing or conducting it, but, except as otherwise is hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. It may be noticed that this section deals with only material irregularity or mistake or fraud in publishing or conducting the sale. This section does not say anything about illegality in the conduct of the sale itself. It is admitted that the Act itself does not bring out the distinction between an illegality and an irregularity. On the other hand the decision in Bommayya Naidu v. Chidambaram Chettiar I.L.R. (1899) Mad. 440, referred to by Ramanujam, J., deals with only Section 38 of the Revenue Recovery Act already referred to. In that case also, after the Collector dismissed the application filed under Section 38 of the Act, the matter was taken to the civil Court and the District Judge held that the notice of sale was not put up in the Collector's office, that this was an irregularity, but that did not furnish sufficient ground for setting aside the sale and he also decided that he had no jurisdiction to entertain the suit. It was that decision which w as taken up by way of appeal to this Court in the decision referred to above. Consequently, the learned Judges were concerned with the scope of Section 38 of the Act as to what constituted material irregularity and under what circumstances the appellant therein would be entitled to the relief of setting aside the sale. Therefore, this decision will be of assistance only for the purpose of ascertaining the scope of the power of the Collector under Section 38 and will not be of any assistance to find out what can be said to be an illegality in the conduct of sale and what can be said to be a material irregularity in the publishing or the conduct of sale. Even Mr. Peter Francis. the learned Counsel for the fourth respondent had to rely only on the decisions of this Court under Order 21. Rule 54 and Order 21, Rule 90, Civil Procedure Code as to the circumstances under which an attachment or a sale can be set aside. He was not able to draw our attention to any direct decision holding what would constitute an illegality and what would constitute only an irregularity in the conduct of sale under the Revenue Recovery Act, 1864 if a particular statutory requirement has not been complied with.
8. It is relevant in this context to refer to Appendix III to Board's Standing Order 41 Standing Order, 41 deals with the general procedure under the Tamil Nadu Revenue Recovery Act II of 1864 with which we are concerned. There is Appendix III to paragraph 26 of this Standing Order 41, and the significance of this appendix is that it enumerates what may be said to be illegalities and what may be said to be irregularities. The said Board's Standing Order would appear to have been issued with reference to an order of the Government in G O Ms No. 686, Revenue, dated 20th March, 1936. The preamble to this Standing Order itself gives the necessity for the Board pointing out the distinction between an illegality and irregularity under the provisions of Act II of 1964 and enumerates the same. The preamble to the Board's proceedings states:
In its Proceedings No 32, Press, dated 5th May, 1923, the Board issued instructions to subordinate officers to avoid certain irregularities frequently noticed in sales under the Madras Revenue Recovery Act II of 1864. As it has been found in practice that subordinate revenue officers find it difficult to distinguish between illegalities which contravene express provision of law and thereby vitiate the sale proceedings and irregularities which are merely infringements of executive instructions issued from time to time, the Board has drawn up a list showing such illegalities and irregularities separately. The list as approved by Government is appended to these proceedings.
2. Officers committing any of these irregularities will render themselves liable to disciplinary action.
After this preamble, occurs two headings, heading (a) enumerating the illegalities and heading (b) enumerating the irregularities. (a) (7) reads as follows:
(a). The following are illegalities, as they contravene the express provisions of law and thereby vitiate the sale proceedings:
(7) Failure to affix the sale notice No. 7 on the sale land (section 36 second of the Act).
Under the heading (b) are enumerated what according to the Board constituted mere irregularities and it states:
The following are irregularities that contravene the executive instructions issued from time to time by the Board and the Government; Officers committing such irregularities will render themselves liable to disciplinary action.
We are not stating that this enumeration of illegalities and irregularities by the Government and the Board of Revenue is the final word in this matter; nor are we saying that they are exhaustive and no other case of illegality or irregularity can be conceived nor are we observing that such an enumeration and distinction are binding on a civil Court. What, we are interested in pointing out is that these instructions of the Board of Revenue are at least binding on the Government Officers woo are exercising the statutory powers under the Act and that is the reason why the Government have rightly requested the Government Pleader to represent to the Court that the writ petition filed by the appellant herein may be allowed and the sale may be set aside and the matter remitted to the Collector for fresh disposal. But one thing is clear that there is a distinction between illegality and irregularity with regard to a sale conducted under the Act of 1864. Consequently, the question that will arise for consideration is whether the failure on the part of the officers concerned to affix a copy of the sale notice on a conspicuous part of the land to be sold will constitute an illegality or merely a material irregularity.
9. There is no gainsaying the importance of complying with this requirement. A mere survey number given in the sale notice may not be sufficient for the intending purchaser to identify the land so that he can make up his mind as to what price he should offer. It is only the fixing up of a copy of the notice on some conspicuous part of the land that will enable an intending purchaser to identify and localise the land and also assess its value so that he will be in a position to offer a proper price for the land. Under these circumstances, the conclusion is irresistible that the requirement that a copy of the sale notice should be affixed on some conspicuous part of the land sought to be sold is a basic and inescapable obligation imposed on the revenue authorities conduct ing the sale. If so, the question for consideration is whether the failure to observe this statutory requirement would vitiate the sale so as to enable the Court to set aside the sale itself. We are of the opinion that the failure to observe such a requirement, which is basic having regard to the necessities of the situation to which we have drawn attention, will constitute an illegality which is not covered by Section 38 of the Act If such an illegality is established, it is certainly open to the owner of the land, whose land has been sold away, to approach a civil Court or this Court in exercise of jurisdiction under Article 226 of the Constitution to ask for relief by way of setting aside the sale. Differing from Ramanujam, J., we take the view that the failure on the part of the Collector to affix a copy of the sale notice on the land in question has vitiated the sale and therefore it will be legitimate for this Court in exercise of jurisdiction under Article 226 of the Constitution to set aside the sale. We may point out in this context that no direct decision of any Court dealing with this question on the failure to comply with the statutory requirement has been brought to our notice and therefore we have come to our own conclusion on the basis of the nature of the requirement and the effect it will have on the right of the owner of the land.
10. Assuming that this conclusion of ours is not correct, still we are of the opinion that there is a further illegality that has occurred in the present case which will vitiate the sale of the land. That has been dealt with by Ramanujam, J, himself. It would appear that before the learned Judge it was contended on behalf of the appellant that there has been a violation of Section 44 of the Act of 1864. That section reads as follows:
It shall be lawful for the Collector or other officer empowered by the Collector in that behalf, to sell the whole or any portion of the land of a defaulter in discharge of arrear of revenue; provided always that so far as may be practicable, no larger section of the land shall be sold than may be sufficient to discharge the arrears with interest, and expenses of attachment, management, and sale.
It is not in dispute that the amount due to the Government by the appellant on the loan account on the date of sale was only Rs. 2,518. Notices in form Nos. 5 and 7 refer to only this amount. Based upon this, a contention was urged before the learned Judge that the Collector was under an obligation to sell only a fraction of the land which will be sufficient to get this sum of Rs. 2,518 which was due to the Government, and contrary to the statutory safeguard provided in the proviso to Section 44 of the Act extracted above, the entire land of 3.40 acres has been sold by the authorities functioning under the Act, Dealing with this contention, Ramanujam. J., has stated as follows:
As regards the alleged violation of Section 44, it is seen that though the amount of loan due by the petitioner was only Rs. 2,518 with subsequent interest, as is clear from the sale notice, since the sale has been ordered free from the mortgage amount of Rs. 4,000 due to one Shanmugam Pillai the total amount due for recovery of which the property was sold amounts to Rs. 6,541. The revenue sale has fetched only a sum of Rs. 8,100. As the amount fetched by the revenue sale is not so disproportionate to the amount sought to be recovered by the revenue sale, it is not possible to say that there has been a violation of Section 44 of the Act which directs that only such portion of the land which will satisfy the debt due by the defaulter should be sold. Apart from this, Appendix III to Board's Standing Order 41, paragraph 26 does not make the revenue sale invalid when the land sold is slightly in excess of the sufficient portion from which the amount due from the defaulter could be realised.
With great respect to the learned Judge, we are of the opinion that the learned Judge is neither correct nor consistent in this behalf. We ate saying that the learned Judge is not correct because it is admitted before us that the learned Judge committed an error in stating that the sale has been ordered free from the mortgage amount of Rs. 4,000 and by the sale of the property a sum of Rs. 6, 541 was sought to be recovered while in fact the sale was free of encumbrances. The amount due to the Government was only Rs. 2,518 and any revenue sale under the Act of 1864 can be effected only for recovery of the amount due to the Government and certainly no sale can be effected for recovery of the amount due to a mortgagee. Therefore, the learned Judge was not right in stating that the property was sold for recovery of a sum of Rs. 6,541 and consequently the amount fetched by the revenue sale was not so disproportionate to the amount sought to be recovered by the revenue sale.
11. Secondly, the learned Judge has referred to Appendix III to Board's Standing Order 41 to which we have referred. If the learned Judge is willing to be guided by that Appendix, the learned Judge would have found that under (a) (7) of that appendix, failure to affix the sale notice No. 7 on the sale land was declared to be an illegality and therefore the sale was vitiated. We have examined both headings (a) and (b) under Appendix III to Board's Standing Order 41, and neither (a) nor (b) includes in its enumeration a violation of Section 44 of the Act. Therefore, Appendix III as such is not of any assistance for construing the scope of the proviso to Section 44 or for assessing the effect of the failure to comply with the requirements of the proviso. Therefore, we have to consider this position independently of Appendix III. If so considered, we have no hesitation whatever in holding that there has been a violation of the proviso to Section 44 of the Act in the present case and such violation constitutes an illegality vitiating the sale itself. We have already referred to the fact that the amount due to the Government was only Rs. 2,318 and therefore when the property was sold, subject to encumbrance or free of encumbrance, the Collector should have sold only such portion of the property as would be sufficient to get the amount due to the Government. This aspect was not borne in mind by the authorities who conducted the sale and as a matter of fact, without applying their mind to this aspect of the matter, the entire property of 3.40 acres was directed to be sold and has been actually sold. Such a sale in our opinion violates the proviso to Section 44 which proviso was introduced by the legislature in order to safeguard the interest of the owner of the property, as the sale is a summary sale for the purpose of recovering the amounts due to the Government.
12. We have already referred to the fact that Mr. Peter Francis appearing for the fourth respondent herein was not able to bring to our notice any direct decision dealing with the distinction between illegality and irregularity in the conduct of sale under the Act of 1864. However, the learned Counsel made a general statement that whenever there is a violation of the provision imposing an obligation on a Government Officer to do a particular thing in a particular manner, the failure to do the same in that manner would constitute an irregularity. If, on the other hand, when there is a provision prohibiting a Govern-meat Officer from doing a thing and if the officer does anything contrary to the prohibition, that will constitute illegality. Even on the application of this test, it must be held that the action of the authorities in selling the property in its entirety, more than what is necessary for recovering the amount due to the Government, is one against the prohibition imposed by the proviso to Section 44 of the Act and therefore that will certainly constitute an illegality vitiating the sale as a whole. In view of this conclusion of ours, we have no hesitation in holding that the sale conducted by the authorities of the Government under Act II of 1864 in the present case is illegal and the appellant herein is entitled to the relief of setting aside the sale.
13. The result is that the appeal is allowed and the judgment of Ramanujam, J., is set aside and the writ petition filed by the appellant herein, namely, W.P. No. 2956 of 1972 will stand allowed. There will be no order as to costs in this appeal.
14. As soon as we pronounced the judgment, Mr. Peter Francis, the learned Counsel for the fourth respondent herein orally requested us to grant a certificate of fitness to appeal to the Supreme Court of India -under Article 133 of the Constitution. Having regard to our conclusion on the admitted facts with reference to Section 36 as well as Section 44 of the Revenue Recovery Act, 1864, though we have considered a substantial question of law of general importance, we are not satisfied that, having regard to the facts admitted to which we have applied Sections 36 and 44 of the Act, this is a case which in our opinion needs to be decided by the Supreme Court and we accordingly reject the request.