Abdul Jaleel V.P and Selina vs The District Collector, Palakkad and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945`** ## **`WP(C) NO. 28667 OF 2023`** ## **`PETITIONERS:`** - `1 ABDUL JALEEL V.P AGED 50 YEARS S/O. MUHAMMEDKUTTY,VENGATTUPARAMBIL HOUSE, KIZHAYUR P.O, PATTAMBI, PALAKKAD DT., PIN - 679303` - `2 SELINA AGED 41 YEARS W/O. ABDUL JALEEL, SAROJINI, VENGATTUPARAMBIL HOUSE, KIZHAYUR P.O, PATTAMBI, PALAKKAD DT., PIN - 679303 BY ADV A.HAROON RASHEED` ## **`RESPONDENTS:`** - `1 THE DISTRICT COLLECTOR, PALAKKAD THE DISTRICT COLLECTOR, PALAKKAD CIVIL STATION, PALAKKAD-, PIN - 678001` - `2 THE TAHSILDAR (LAND RECORD) THE TAHSILDAR (LAND RECORD) PATTAMBI TALUK, PATTAMBI, PALAKKAD DT., PIN - 679303` - `3 THE VILLAGE OFFICER THE VILLAGE OFFICER, PATTAMBI VILLAGE OFFICE, PATTAMBI P.O, PALAKKAD DT., PIN - 679303` - `4 THE SUB REGISTRAR THE SUB REGISTRAR, SUB REGTRAR OFFICE, PATTAMBI, PALAKKAD DT., PIN - 679303` - `5 STATE OF KERALA STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001` ``` SRI. RIYAL DEVASSY - GP ``` - `THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON` - `19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` WP(C) NO. 28667 OF 2023 ``` 2 ``` ## **JUDGMENT** The petitioners who are husband and wife purchased the property covered by Ext. P1 from Mr. Melangadi Ummer and his wife Sainaba. After the purchase of the property, when the petitioners attempted to remit the land tax, the same was refused to be accepted on the ground that there is an attachment in respect of the property as per the order of the Additional Sessions Court, Palakkad in connection with SC No. 180/2006 against the previous owner Ummer. Though the petitioners tried to get the details of the attachment, they could not get any information either from the revenue authorities or from the Additional Sessions Court, Palakkad. The petitioners submit that they are manual labourers and WP(C) NO. 28667 OF 2023 ``` 3 ``` because of the attachment, they are not in a position to avail any loan from financial institutions to carry out maintenance of their house. It is also submitted that, to their information, the aforesaid Ummer is no more as evident from Ext. P6 FIR. 2. Heard the learned counsel for the petitioners and the learned Government Pleader. 3. When this writ petition came up for consideration on 05.09.2023, this Court directed the Registry to get a report as to the status of SC No. 180/2006 on the files of the Additional Sessions Court, Palakkad. The learned District and Sessions Judge has submitted a report which reads as follows: - _“I am submitting the following for the kind_ - _information of the Hon’ble High Court of Kerala._ _The accused Kumaran in SC. 180/2006, (Crime No. 200/2004 of Kollengode Police Station) had been charge sheeted under Section_ WP(C) NO. 28667 OF 2023 ``` 4 ``` _450 and 376 of IPC by the Circle Inspector of Police, Kollengode and the case has already been disposed of by the Additional Sessions Judge-IV (Adhoc Court No.II), Palakkad, convicting the accused for the said offences, as per Judgment dated 11.05.2009._ _An appeal had been preferred by the convict against this verdict as Criminal Appeal No. 910/2009 before the Hon’ble High Court of Kerala and the Hon’ble High Court after hearing the appeal acquitted him for the said offences vide Judgment in Crl.A.No. 910/2009 dated 31.07.2013. No proceedings are pending in the said Sessions case._ _The above facts are submitted for favour of information.”_ 4. The order of attachment of the Additional Sessions Court, Palakkad is seen issued on 30.07.2007. The petitioners have purchased the property on 18.09.2007. Even if there is an attachment by the Sessions Court, that comes to an end when the accused surrenders before the Court. As seen from the report of the learned District and WP(C) NO. 28667 OF 2023 ``` 5 ``` Sessions Judge, the accused was convicted by the Additional Sessions Judge-IV (Adhoc Court No.II), Palakkad, as per judgment dated 11.05.2009. When the accused surrenders before the Court pursuant to the proceedings initiated under Section 82 of the Code of Criminal Procedure, the purpose of attachment is achieved and the attachment stands withdrawn. 5. The Hon’ble Supreme Court in **Vimalaben Ajitbhai Patel v. Vatslaben ashokbhai Patel and Others [2008 (2) KHC 396]** , while considering the scope of Section 82 of the Code of Criminal Procedure, held as follows:- "32. _The provisions contained in S.82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the_ WP(C) NO. 28667 OF 2023 ``` 6 ``` _accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under S.85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon."_ Referring to the decision in **Vimalaben** (Supra), and the statutory provisions, this Court in **Abdul Khadar V. State of Kerala [2015 (5) KHC 361]** held that, once the person, against whom the proclamation was issued and whose property was attached, surrenders before the Court and the standing warrants are WP(C) NO. 28667 OF 2023 ``` 7 ``` cancelled, he is no longer an absconder and therefore, the purpose of attachment of the property comes to an end. In paragraph 13, this Court held as follows:- _"13. S.85(3) of the Code does not say that a formal application is required to be filed for getting the attachment lifted or getting the property or the sale proceeds, as the case may be, delivered. Any application is not contemplated for the said purpose and therefore, the petitioner could not have been found fault with in not filing an application for the same. The said position is made clear in Babu M. C. v. State of Kerala and Another, 2011 (3) KHC : 2011 (3) KLT 383 : 2011 (2) KLD 109 : ILR 2011 (3) Ker. 561 : 2011 (3) KLJ 616. In such circumstances, it is the duty of the Court to take note of the fact whether there were sufficient grounds for believing that the said accused did not abscond or conceal himself for the purpose of avoiding execution of the warrant. Otherwise, a formal application would have been specified by the Statute. In the absence of any such application, in case of the surrender of such_ WP(C) NO. 28667 OF 2023 ``` 8 ``` _an accused or arrest and production before Court within the period mentioned in S.85(3) CrPC, the Court has to consider whether there are materials to show that he had absconded or deliberately concealed himself for avoiding the execution of the warrant."_ 6. Since the purpose of attachment has come to an end on the accused surrendering before the Court, the attachment stands lifted. It is also pertinent to note that there is no sale of attached property in this case by the Government under Section 85 of CrPC. Accordingly, following the dictum laid down in **Vimalaben** (supra), it is declared that there is no attachment in-force in respect of the property covered by Ext. P1 and the revenue authorities are directed to accept the land tax and issue possession certificate to the petitioners. Necessary entries may be made by WP(C) NO. 28667 OF 2023 ``` 9 ``` the 4[th] respondent in Book No. 1 maintained under Section 51 of the Registration Act. The writ petition is disposed of. **Sd/-** # **MURALI PURUSHOTHAMAN JUDGE** bnu WP(C) NO. 28667 OF 2023 ``` 10 ``` ## **`APPENDIX`** ## `PETITIONERS EXHIBITS` ``` Exhibit P1TRUE COPY OF SALE DEED NO. 2523/20007 OF S.R.O PATTAMBI Exhibit P2TRUE COPY OF ENCUMBRANCE CERTIFICATE OF PETITIONER'S PROPERTY ISSUED BY THE 4TH RESPONDENT Exhibit P3TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST PETITIONER TO THE VILLAGE OFFICER DATED 13/11/2019 Exhibit P4TRUE COPY OF HEARING NOTICE ISSUED BY THE 2ND RESPONDENT DATED 22/2/2022 Exhibit P5TRUE COPY OF THE NOTICE SENT BY THE 2ND RESPONDENT TO ADDITIONAL DISTRICT COURT, PALAKKAD DATED 15/3/2022 Exhibit P6TRUE COPY OF F.I.R IN CRIME NO. 740/2022 OF PATTAMBI POLICE STATION REGISTERED IN CONNECTION WITH UNNATURAL DEATH OF UMMER (PREVIOUS OWNER) Exhibit P7TRUE COPY OF REPLY DATED 5/6/2023 ISSUED BY THE 2ND RESPONDENT ```