TaxTMI 
TaxTMI 
2024 (7) TMI 539
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....For the convenience of exposition, this judgment is divided into the following parts: INDEX A. FACTUAL MATRIX ....3 B. SUBMISSIONS ON BEHALF OF THE APPELLANT ....13 C. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 6/Asset Reconstruction Co. (India) Ltd. (ARCIL) ....16 D. ISSUES FOR DETERMINATION ....21 E. RELEVANT STATUTORY PROVISIONS OF THE REVENUE CODE ....21 F. ANALYSIS ....26 i. Whether the provisions of Order XXI Rule 90 of the Code of Civil Procedure would apply to the writ proceedings under Article 226 of the Constitution? ....26 a. Difference between the auction sale conducted by the court in the execution proceedings initiated by the decree holder and the auction proceedings conducted by the State through its revenue authorities like Tahsildar, etc. ....36 ii. Whether the Additional Commissioner, Konkan Division, Maharashtra had the jurisdiction to decide the two appeals filed by the respondent nos. 1 and 6 respectively under Section 247 of the Maharashtra Land Revenue Code, 1966? ....52 G. CONCLUSION ....55 1. Leave granted. 2. Since the issues raised in both the captioned appeals are the same; the subject-matter also being the same; t....
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....ction of Financial Assets and Enforcement Of Security Interest Act, 2002 (hereinafter referred to as the "SARFAESI Act, 2002"). It is the case of the respondent no. 6 that accordingly it became legally entitled to recover the debt due and payable from the respondent no. 1 by way of the sale of the property subject to the pre-existing mortgage in favour of the respondent no. 6. b. Two demand notices dated 15.10.2007 and 20.11.2007 respectively of Rs. 29,52,000/- were issued as per Form No. 1 under Section 178 of the Revenue Code and Rule 5(1) of the Maharashtra Realisation of Land Revenue Rules, 1967 (hereinafter referred to as "the Rules") to the respondent no.1 by the office of the Tahsildar. The notices were pasted on the main door of the respondent no. 1 and also on the office board of the Gram panchayat. c. The Office of the Circle Officer, Talasari issued a letter dated 27.11.2007 to the Tahsildar, Talasari stating that the demand notices were sent to the respondent no. 1 as it was in arrears of land revenue to the tune of Rs. 29,52,000/-. It also noted that since the company was closed, the notices were affixed on the gate of respondent no.....
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....4 in the newspaper viz. Dahanu Times for public auction furnishing details of the suit property with the upset price, auction date and time.The notice specified that if the dues towards the arrears of revenue would not be cleared on or before 03.12.2008, the Property, free from encumbrances would be put to auction at the Tahsildar's office. m. The Board Officer, Talasari issued a letter dated 19.11.2008 to the respondent No. 4 informing that they had pasted the copy of the notice on the gate of the property of the respondent no. 1 as per Namuna 5, Rule 12(2)A of the Rules. n. Respondent no. 4 issued a letter dated 20.11.2008 to the Assistant Director, Director of Enforcement requesting to keep one representative present on their behalf on 03.12.2008 at 11 AM. o. On 21.11.2008, respondent no. 4 issued a letter addressed to the Collector, Thane; Additional Collector, Thane H.Q. Jawar; Sub-Divisional Officer, Dahanu Division; Group Development Officer, Talsari; Gram Panchayat Vadavli-Bhavane and Talathi Saja, Vadavli requesting them to display the public notice on their office notice boards and to provide a publicity report regarding the public advertisement....
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....07 of 2009) directed Union of India, the respondent therein, to provide photocopies of the relevant documents and to allow inspection. cc. The Additional Collector, Head Office, Jawar issued a letter dated 07.10.2009 to respondent no. 4, directing him to submit a detailed report on whether all the conditions as stipulated under Section 208 of the Revenue Code had been fulfilled. dd. Respondent no. 4, vide its letter dated 12.01.2009 addressed to the Additional Collector, Head Office Jawar, informed that except for the writ petition pending before the High Court of Bombay, no objections were received. Thereby all requirements under Section 208 of the Revenue Code had been fulfilled (despite IFCI raising its objections). ee. On 15.01.2009, the office of the District Collector, Thane informed the respondent no. 4 that the auction sale had been approved and the appellant had been declared and confirmed as the auction purchaser of the suit property as per the Section 208 of the Revenue Code. ff. Respondent no. 4 issued a letter dated 16.01.2009 to the appellant informing that the auction sale was approved and the appellant was declared and confirmed a....
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.... appellant herein, i.e., Writ Petition (C) No. 415 of 2011 with Writ Petition No. 418 of 2011 ultimately came to be adjudicated by the High Court and vide its impugned judgment & order dated 9.12.2014 were rejected. The relevant observations made by the High Court while rejecting both the writ petitions are as under: "33. Heard the learned counsel for the parties at length. Considering the submissions made by both the counsel and after going through the pleadings, the issue involved in the petitions is "whether the Petitioner has made out a case for setting aside the common order dated 18/02/2010 passed by the Additional Commissioner, Konkan Division in appeal No.195/2009 and 288/2009". 34. As per section 192 of the code, for holding an auction, the Collector, has to issue a proclamation in a prescribed form with its translation in Marathi of the intended sale specifying its time and place, along with description of the immovable property. Such proclamation is required to be made by beat of drum at the headquarters of Taluka and in the village in which the immovable property is situated. As per section 193 of the Code, a written notice of the intended sale of immo....
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....ollowed strictly, the auction sale is required to be set aside. These facts are considered by the Additional Commissioner at the time of passing the impugned order. The Additional Commissioner categorically held that the orders passed by the Tahasildar as well as the Additional Collector were contrary to the provisions of the Code. Hence, the Additional Commissioner Konkan Division set aside both the orders and the matter was remanded to the Additional Collector to decide on its own merits. 39. It is to be noted that, allowing the petition amounts to revival of illegal order and same is not permitted in view of the Apex Court judgment in the matter of Maharaja Chintamani (supra). 40. Considering the above mentioned facts that the Tahasildar as well as the Additional Collector, without following due process of law as required under the said Code, passed the order dated 3/12/2008 and 15/01/2009 and handed over possession of the suit property to the Petitioner and in view of the law declared by the Apex Court as stated herein above, I am of the opinion that the Petitioner failed to make out any case for interference with the well reasoned impugned common order dated ....
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....such circumstances referred to above, the appellant is here before this Court with the present appeals. B. SUBMISSIONS ON BEHALF OF THE APPELLANT 12. Mr. P.S. Patwalia, the learned Senior Counsel appearing for the appellant, vehemently submitted that the High Court committed an egregious error in holding that the auction proceeding conducted by the Tahsildar was a sham and much contrary to the statutory provisions of the Revenue Code more particularly Sections 193 and 194 respectively of the Revenue Code. 13. The learned Senior Counsel submitted that a written notice of the intended sale of the suit property with the time and place thereof was affixed strictly in accordance with the conditions as stipulated under Section 193 of the Revenue Code. In this regard, our attention was drawn to the findings recorded by the High court as contained in para 37 of the impugned judgment of the High Court. The learned Senior Counsel further submitted that the original owner (respondent no. 1) on his own free will and volition had given his consent on 20.10.2008 to proceed with the auction sale of the suit property. 14. The learned Senior Counsel further submitted that the appellant ....
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....n such circumstances referred to above, Mr. Patwalia, the learned Senior Counsel submitted that if the appellant is asked to hand over the possession of the entire suit property at this point of time, he would incur irreparable injury, which cannot be compensated in terms of money. 21. It was submitted that ordinarily the court should not disturb the sale by auction unless it is an evident case of mala fide or a result of fraud. According to Mr. Patwalia, sometime back his client had also offered to pay to the lenders the market value of the suit property. However, such proposal was not entertained by the bankers. 22. In such circumstances referred to above, the learned senior counsel prayed that there being merit in his appeals, those may be allowed and an appropriate order may be passed protecting the interests of all the parties to this litigation. C. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 6/Asset Reconstruction Co. (India) Ltd. (ARCIL) 23. Mr. Amar Dave, the learned Senior Counsel appearing for the respondent No. 6 made the following submissions: a. The entire transaction on the basis of which the suit property was taken over by the appellant was nothi....
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....cative of the fraudulent and collusive nature of the proceedings in question. e. That the so-called reliance on the letter of 'No Objection' being the entire basis of the starting of the final auction proceeding is clearly indicative of the fraud perpetuated more particularly when the respondent No. 1 company, i.e., Prestige H.M. Polycontainers Ltd. clearly declared that no such 'No Objection' letter was ever signed by it. Even otherwise the sequence of events including the newspaper advertisements clearly indicate that such a plea of taking "no objection" from the owner and then subsequently asking the owner to make payment before the due date is indicative of the nature of fraud perpetuated in the present proceedings. f. The record reveals that the entire valuation of the immovable as well as the movable properties were done in a self-serving manner, and the same was done only to benefit the appellant. In this regard, the pleadings clearly reflect that the movable properties itself were almost having a market value of around Rs. 3 Crore (if not around Rs. 1 crore as per depreciated value reflected in the books). In spite of such valuation, the valuer had assigne....
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....tions as stipulated under Section 208 of the Revenue Code. However, vide its letter dated 12.01.2009 addressed to the Additional Collector, Head Office Jawar, respondent no. 4 informed that except for the WP in the High Court of Bombay, no other objection was received and thereby all requirements under Section 208 of the Revenue Code had been fulfilled, despite IFCI having raised its objections vide a letter dated 10.12.2008. 24. As regards the offer put forward by the appellant to deposit the requisite amount as per the market value of the property, Mr. Dave fairly submitted that sometime back, the appellant had offered to pay to the lenders but as the lenders found the offered amount to be very meagre the said proposal was not accepted. According to Mr. Dave, the market value of the suit property as on date could be around Rs. 6 to 7 crores. 25. In such circumstances referred to above, the learned Senior Counsel prayed that there being no merit in the appeals those may be dismissed with costs. D. ISSUES FOR DETERMINATION 26. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions of law fall f....
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.... of section 72 or 73 and credit the proceeds, if any, to the defaulter's accounts : Provided that, the Collector shall not declare any such occupancy or alienated holding to be forfeited- (a) unless previously thereto he shall have issued a proclamation and written notices of the intended declaration in the manner provided by sections 192 and 193 for sales of immovable property, and (b) until after the expiration of at least fifteen days from the latest date on which any of the said notices shall have been affixed as required by section 193. xxx xxx xxx S. 192. Procedure in effecting sales.-(1) When any sale of either movable or immovable property is ordered under the provisions of this Chapter, the Collector shall issue a proclamation in the prescribed form with its translation in Marathi of the intended sale, specifying the time and place of sale, and in the case of movable property whether the sale is subject to confirmation or, not and when land paying revenue to the State Government is to be sold, the revenue assessed upon it, together with any other particulars he may think necessary. (2) Such proclamation shall be made by....
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....195 applies to the sale of perishable articles. Such articles shall be sold by auction with the least possible delay, in accordance with such orders as may from time to time be made by the Collector either generally or especially in that behalf. S. 197. When sale may be stayed.-If the defaulter or any person on his behalf, pays the arrear in respect of which the property is to be sold and all other charges legally due by him at any time before the property is knocked down, to the person prescribed under section 170 to receive payment of the land revenue due, or to the officer appointed to conduct the sale or if furnishes security under section 191, the sale shall be stayed. xxx xxx xxx S. 200. Mode of payment when sale is subject to confirmation.-(1) When sale is subject to confirmation, the party who is declared to be the purchaser shall be required to deposit immediately twenty-five per centum of the amount of his bid, and in default of such deposit, the property shall forthwith be again put up and sold. (2) The full amount of purchase money shall be paid by the purchaser before the sunset of the third day after he is informed of the sale havin....
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.... and the Collector shall, after due enquiry, pass such order on such application as he deems fit. S. 210. Application to set aside sale by person owning to holding interest in property.-(1) Where immoveable property has been sold under this code, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may, at any time within thirty days from the date of sale, apply to the Collector to have the sale set aside on his depositing- (a) for payment to the purchaser a sum equal to five per cent of the purchase money; (b) for payment on account of the arrear, the amounts specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may have been paid since the date of sale on that account ; and (c) the cost of the sale : [Provided that, such application may be made by any such person belonging to a Scheduled Tribe within one hundred and eighty days from the date of sale.] (2) If such deposit is made within thirty days, 2[or as the case may be, one hundred and eighty days] from the date of sale, the Collector shall pass an o....
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....side. We start with the decision of this Court in the case of Chilamkurti (supra) as strong reliance has been placed on the same on behalf of the appellant. This judgment has been relied upon to make good the contention that the provisions of Order XXI Rule 90 of the Code of Civil Procedure (hereinafter, "CPC") should be made applicable to the present litigation or in other words even in the writ proceedings under Article 226 of the Constitution. This decision is relied upon to fortify the submission that merely establishing a material irregularity or fraud is not sufficient to set aside the auction sale. It is necessary for the party aggrieved to go further and establish to the satisfaction of the court that the material irregularity or fraud in the conduct of the auction has resulted in substantial injury to the said party. Conversely, even if the party aggrieved has suffered substantial injury by reason of the sale, the same would not be sufficient to set aside the auction sale unless substantial injury has been shown to have been caused by a material irregularity or fraud in publishing or conducting the sale. 29. In Chilamkurti (supra), the respondent no. 2 before this Court....
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....stain the reasoning of the High Court. Order 21 Rule 90 of the Code of Civil Procedure allows, inter alia, any person whose interests are affected by the sale to apply to the court to set aside a sale of immovable property sold in execution of a decree on the ground of "a material irregularity or fraud in publishing or conducting" the sale. Sub-rule (2) of Order 21 Rule 90 however places a further condition on the setting aside of a court sale in the following language: '90. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.' 13. Therefore before the sale can be set aside merely establishing a material irregularity or fraud will not do. The applicant must go further and establish to the satisfaction of the court that the material irregularity or fraud has resulted in substantial injury to the applicant. Conversely even if the applicant has suffered substantial injury by reason of the sale, this would not be sufficient to set the sale aside unless substantial injury has b....
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....lusion arrived at by the executing court deserves to be restored as against that of the High Court in the impugned order. In other words, no case was made out by the judgment-debtor for setting aside of the sale of the property in question on the ground of committing any material irregularity or fraud in publishing or in conducting the sale so as to enable the Court to invoke its powers under Order 21 Rule 90(2) of the Code. 16. It is noticed that Respondent 1, in her application for setting aside the sale, had mainly raised four objections. Firstly, clear 15 days' notice was not given for sale of the properties as required under the Rules. Secondly, the valuation of the property was not properly mentioned in the documents concerned so as to enable the parties to know its proper valuation prevailing on the date of sale. Thirdly, the market value of the property on the date of auction was more than the price actually fetched in the auction, and fourthly, no proper publication including beating of drum was made before the date of auction due to which there was less participation of the bidders in the auction-sale. 17. The executing court dealt with all the four ....
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....f irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which could have been taken on or before the date on which the proclamation of sale was drawn up. Explanation.-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule." 34. Legislative changes: By the Code of Civil Procedure (Amendment) Act, 1976, the following changes have been effected in Rule 90: (i) In sub-rule (1), the words "or the purchaser" and "other" were inserted after the words "the decree-holder" and "or any" respectively; (ii) The proviso to old sub-rule has been renumbered as sub-rule (2) with necessary changes in phraseology and with addition of the words "in publishing or conducting it" after the words "irregularity or fraud"; (iii) Sub-rule (3) has been inserted; (iv) Explanation to the rule has been added. 35. Object of Amendment: ....
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.... in the attachment or want thereof, but if it causes "substantial injury", it can be set aside under Rule 90. The last view seems to be the correct one. The object of attachment is to bring the property under the control of the court, and in the case of immovable property one of the requirements is that the order of attachment should be publicly proclaimed. The main object of the proclamation is to give publicity to the fact that the sale of the proclaimed property is in contemplation. The publication of the attachment is thus a step leading up to the proclamation of the sale. The question whether it is necessary to insert a provision to clarify the position on the subject, has been considered. In the draft Report which had been circulated, an Explanation had been proposed to Rule 90 to the effect that absence of or defect in attachment shall be regarded as an irregularity under this rule. After some consideration, it has been decided that no such provision need be inserted." In its Fifty-fourth Report, the Law Commission ordered: "The Commission noted that the question whether the absence of, or irregularity in, attachment is, a defect in the "publication or c....
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....n to Rule 90 clarifies that mere absence of or defect in, attachment of property sold would be no ground for setting aside sale. 37. Order XXI of the CPC is exhaustive and in the nature of a complete code as to how the execution proceedings should take place. This is the second stage after the success of the party in the civil proceedings. This Court in many of its decisions has said that this is the second stage after the success of the party in the civil proceedings. It is often said in our country that another legal battle, more prolonged, starts in execution proceedings defeating the right of the party which has succeeded in establishing its claim in civil proceedings. This is the reason why Order XXI Rule 90 provides that both the conditions enumerated therein should be fulfilled. (See: M/s Jagan Singh & Co. v. Ludhiana Improvement Trust & Ors. reported in (2024) 3 SCC 308) a. Difference between the auction sale conducted by the court in the execution proceedings initiated by the decree holder and the auction proceedings conducted by the State through its revenue authorities like Tahsildar, etc. 38. There is a fine distinction between the auction sale conducted ....
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....141 and the provisions of the Code were not applicable to writ petitions. 42. In State of U.P. v. Vijay Anand reported in AIR 1963 SC 946, drawing the distinction between ordinary civil jurisdiction and extraordinary civil jurisdiction, a Constitution Bench of this Court stated:- "It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction." ( Emphasis supplied ) 43. Again, in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot reported in (1974) 2 SCC 706, construing the words 'as far as it can be made applicable' in Section 141 of the CPC (prior to Amendment of 1976), this Court observed: ....
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....141 does not apply to proceedings under Article 226 of the Constitution." 46. In view of the Explanation to Section 141 of the CPC, now it can no longer be contended that the provisions of CPC would apply to the proceedings under Article 226 of the Constitution. 47. This Court in Puran Singh & Ors. v. State of Punjab & Ors. reported in (1996) 2 SCC 205, in paras 9, 10 and 11 respectively has held as under:- "9. In the case of Ram Kala v. Asstt. Director, Consolidation of Holdings [AIR 1977 P&H 87 : 79 Punj LR 100] , a Full Bench of three Judges held that Article 137 of the Schedule to the Limitation Act does not apply to an application for adding or substituting a party to a petition under Article 226 of the Constitution. It was also held that Section 141 of the Code cannot be pressed into service for applying the provisions including Order 22 of the Code in a petition under Article 226 of the Constitution. Later a Full Bench of five Judges of the same Court in the case of Teja Singh v. Union Territory of Chandigarh [AIR 1982 P&H 169; (1981) 1 SLR 274 : 84 Punj LR 160] held that in view of Rule 32 of the Writ Rules framed by the High Court under Article 225 of the Co....
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....h those rules. In the case of Rokyayabi v. Ismail Khan [AIR 1984 Kant 234 : (1984) 2 Kant LC 114] in view of Rule 39 of the writ proceedings rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals. 11. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to writ proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures pres....
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....different manner which does not disclose any discernible principle which is reasonable itself is liable to be labelled as arbitrary. The State action must be informed by reason and it follows that the action uninformed by reason is per se arbitrary. The basic requirement of Article 14 is fairness in action by the State and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review not only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. The public authorities are governed by the "rule of law". Such authorities are constitutionally obliged in law to maintain absolute fairness and transparency during the conduct of the auction sale right from the initiation of the same till its completion. Judicial audit and scrutiny play a key role in ensuring that the public authorities do not act in an unreasonable manner. 52. The dictum as laid by this Court in Tata Cellular v. Union of India reported in (1994) 6 SCC 651 is that the judicial power of review is exercised to rein in any unbridled executive functioning. It was observed that the restraint has two co....
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.... State of Orissa and Others reported in (2007) 14 SCC 517, this Court observed as under: "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by ....
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....of the matter so far as a writ court is concerned. The first and the foremost aspect that the writ court should look into is fairness and transparency on the part of the State in conducting the auction sale so as to be in conformity with Article 14 of the Constitution. 56. The litigation at hand is one of gross violation of the mandatory provisions of the Revenue Code in so far as conduct of the auction sale is concerned. In terms of Section 194 of the Revenue Code, no sale shall take place until after the expiration of at least 30 days from the latest date on which any of the notice shall have been affixed as required by Section 193 of the Revenue Code. The materials on record reveal that the auction of the property was conducted before the expiry of 30 days' time as prescribed under Section 194 of the Revenue Code. At the cost of repetition, Section 194 of the Revenue Code is reproduced hereunder:- "Section 194: (1) Sale shall be made by auction by such persons as the Collector may direct. (2) No such sale shall take place on a Sunday or other general holiday recognised by the State Government¸ nor until after the expiration of at least thirty days in t....
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....to be entered in the land records as occupant or holder in lieu of that of the defaulter and shall grant him a certificate to the effect that he has purchased the land to which the certificate refers." 60. Indisputably, although a specific objection was raised by the IFCI on 10.12.2008, as recorded by the Tahsildar in its letter dated 19.12.2008, yet the objection was suppressed from the Additional Collector. 61. On 07.01.2009, the Additional Collector, Head Office Jawar directed the respondent no. 4 to submit a detailed report on whether it had fulfilled all the conditions as stipulated under Section 208 of the Revenue Code. At the cost of repetition, Section 208 of the Revenue Code is reproduced hereunder:- "Section 208: Order confirming or setting aside sale.-On the expiration of thirty days or, as the case may be, one hundred and eighty days from the date of the sale, if no such application as is mentioned in section 207 has been made, or if such application has been made and rejected, the Collector shall make an order confirming the sale:" 62. However, respondent no. 4, vide its letter dated 12.01.2009 addressed to the Additional Collector, Head Office Jawar,....
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....the distinction between 'nullity' and 'irregularity', Mookerjee, J. stated; "No hard and fast line can be drawn before a nullity and irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation of authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated". 66. Whether a provision falls under one category or other is not of easy discernment, and in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test, however, has been laid down in Holmes v. Russel (1841) 9 Dowl 487, wherein it was held thus: "It is difficult sometimes to distinguish between an irregularity and a nullity, but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity." [see Dhirendra Nath v. Sudhir Chandra] (Emphasis ....
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.... the appellant that the Additional Commissioner, Konkan Division, State of Maharashtra had no jurisdiction to adjudicate the two appeals filed by the respondent no. 1 and respondent no. 6 herein respectively. It was argued that the appeals filed before the Additional Commissioner under Section 247 of the Revenue Code were not maintainable as there was a remedy available under Section 210 of the same code. 69. Application before the Collector to get the Sale set aside has to be made within a period of 30 days. It is after considering the objections that the sale is to be confirmed. Section 210 of the Revenue Code reads: "Section 210. Application to set aside sale by person owning to holding interest in property.- (1) Where immovable property has been sold under this Code, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may, at any time within thirty days from the date of sale, apply to the Collector to have the sale set aside on his holding depositing- (a) For payment to the purchaser a sum equal to five per cent of the purchase money (b) For payment on account of the arrear, the amoun....
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....ny express provisions of the Code, 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 or survey officer specified in column 1 of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not such decision or order may itself have been passed on appeal from the decision or order of the officer specified in column 1 of the said Schedule: Provided that, in no case the number of appeals shall exceed two. (2) When on account of promotion or change of designation an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code." 73. Assuming for the moment that the Additional Commissioner had no jurisdiction to adjudicate and decide the two appeals filed by the respondent No. 1 and respondent No. 6 respectively, yet the common order passed by the Additional Commissioner allowing the appeals and remanding....