High Court of KeralaSingle Judge2013-09-05Writ petition allowed; sale set aside; possessi...

Abdul Khani v. State of Kerala and Others

Case / Petition Number:WP(C).No. 33704 of 2011 (K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V. Chitambaresh
Judgment Date: 2013-09-05
Court Decision / Holding: The writ petition is allowed. No costs. The sale intimated by Ext.P6 and confirmed by Ext.P8 is set aside for reasons including improper naming of the sale in the State’s name rather than in the three requisitioning authorities, unexplained delay in confirmation, and lack of proper notice under Ext.P3. Ext.P15 (order declining to set aside) and Ext.P12 (Amnesty denial) are quashed. The petitioner is entitled to restoration of possession on deposit of Rs.20 lakhs within two months. The respondents may initiate revenue recovery for any residual dues. The petitioner shall be free to file a fresh application under the Amnesty Scheme, in the required proforma, to settle the dues of the three authorities.
Final Disposition: Writ petition allowed; sale set aside; possession to be restored on deposit; fresh Amnesty application permitted; no costs.

Parties to the Case

Appellants / Petitioners

Abdul Khani

Respondents

State of Kerala
Commissioner of Land Revenue
District Collector
Revenue Divisional Officer, Thiruvananthapuram
Tahasildar (Revenue Recovery), Neyyattinkara
Additional Sales Tax Officer, Neyyattinkara
Assistant Excise Commissioner, Thiruvananthapuram
Welfare Fund Inspector, Toddy Welfare Fund
Deputy Tahsildar (Revenue Recovery), Neyyattinkara
A. Sadasivan
Chandrika Sadasivan
Village Officer, Parassala

Legal Representation & Advocates

Counsels for Petitioners

• Sri L. Rajesh Narayan
• Renjith B. Marrar

Counsels for Respondents

• Sri B. Krishna Mani
• Smt. Anitha Ravindran
• Renil Anto

Case Synopsis & Summary

Abdul Khani’s WP(C) 33704/2011 challenges a public auction held under Section 49(2) of the Kerala Revenue Recovery Act to recover dues under the Sales Tax Act and two welfare funds. The petitioner contends Ext.P3 notice, mandatorily required under Section 49(4), was not properly issued and that the sale on 20 December 1999—of about 1 acre 80 cents in Parassala—was not rightly conducted or in the name of the requisitioning authorities. The sale was confirmed only on 18 August 2007, despite pre-sale payments by the eleventh respondent (the wife of the tenth respondent), which were not reflected in the process. It is argued that, per settled decisions, the property should be bid in the name of the three requisitioning authorities, not in the State’s name, and that the Amnesty Scheme remained available to settle the dues if the sale were set aside. The court held that (i) the property should have been bought for all three authorities; (ii) there was an unexplained seven-year delay in confirming the sale and failure to reflect subsequent payments; (iii) there is no satisfactory evidence of proper notice under Ext.P3. Consequently, Ext.P15 and Ext.P12 are set aside; possession should be restored on deposit of Rs.20 lakhs; fresh Amnesty applications are allowed; the petition is allowed with no costs.

Provisions of Law Cited

Kerala Revenue Recovery Act, Section 49(2)Kerala Revenue Recovery Act, Section 49(4)Sales Tax ActAbkari Workers Welfare Fund ActToddy Workers Welfare Fund Act

Legal Doctrines & Maxims

Property should be bid in the name of the requisitioning authorities and not in the State’s name
Mandatory compliance with notice under Section 49(4) of the Act
Amnesty Scheme relief can be considered to settle dues where sale has not conclusively discharged liability.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the sale was irregular: Ext.P3 notice was not properly issued, the property should have been bid in the name of all three requisitioning authorities (Sales Tax, Abkari Workers Welfare Fund, Toddy Welfare Fund) and not solely in the State’s name; there was an unexplained seven-year delay in confirmation of sale, and the preliminary payments made by the eleventh respondent were not adequately considered. The Amnesty Scheme offers relief to settle dues provided the sale is set aside, and the petitioner is prepared to settle the dues in full (including other funds) if permitted relief is granted; the court should ensure that due process and notices were properly observed before upholding the sale.

Contentions of Respondents

The respondents argue that the sale was conducted under statutory provisions and that the Amnesty Scheme cannot rescue a sale already concluded. They rely on existing jurisprudence authorizing sale in the State’s name in certain circumstances and contend that the remedy of setting aside the sale should be sparingly used. The respondents contend that there is no fundamental defect in the sale process that warrants reversal, and they urge that the Amnesty Scheme relief should be denied on grounds of finality and orderly revenue recovery.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
District Collector, Alleppey and others v. Subeida Beevi and another	2010 (1) KLT 913	Positive	Cited as authority that the property should be bid for the requisitioning authorities rather than the Government.
Thirumalaiswamy. M v. State of Kerala and others	2012(2) KHC 402	Positive	Apposite authority supporting the required form of bidding and related procedure.
W.P.C. No. 9523/2009	W.P.C. No. 9523/2009	Mentioned Only	Judgment cited (Ext.P13) for background background reference; not treated as controlling precedent in this context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935** ## **WP(C).No. 33704 of 2011 (K)** **----------------------------** ## **PETITIONER** ## **--------------------------** **ABDUL KHANI, AGED 75 YEARS, S/O. MOHAMMED MUSTAFA, APSARA MANZIL, INCHIVILA PARASSALA P.O., PARASSALA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.L.RAJESH NARAYAN RENJITH B.MARRAR** **RESPONDENT(S):** - **----------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. COMMISSIONER OF LAND REVENUE PUBLIC OFFICE, THIRUVANANTHAPURAM-695 001.** **3. DISTRICT COLLECTOR COLLECTORATE, KODAPPANAKUNNU P.O. THIRUVANANTHAPURAM-695 001.** **4. REVENUE DIVISIONAL OFFICER THIRUVANANTHAPURAM-695 001.** **5. TAHASILDAR (REVENUE RECOVERY) NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121.** **6. ADDITIONAL SALES TAX OFFICER** - **NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121.** **7. ASSISTANT EXCISE COMMISSIONER THIRUVANANTHAPURAM-695 001.** **8. WELFARE FUND INSPECTOR TODDY WELFARE FUND, WELFARE FUND INSPECTOR'S OFFICE THIRUVANANTHAPURAM-695 001.** **9. DEPUTY TAHSILDAR (REVENUE RECOVERY) NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121. WP(C).No. 33704 of 2011 (K)** ## **10. A.SADASIVAN** **A.S.NIVAS, THACHANCODE, KUNNATHUKAL KARAKONAM POST, NEYYATTINKARA P.O. THIRUVANANTHAPURAM-695 121.** ## **11. CHANDRIKA SADASIVAN** **A.S.NIVAS, THACHANCODE, KUNNATHUKAL KARAKONAM POST, NEYYATTINKARA P.O. THIRUVANANTHAPURAM-695 504.** ## **12. VILLAGE OFFICER** **PARASSALA, PARASSALA P.O., THIRUVANANTHAPURAM.** **R10 AND 11 BY ADV. SRI.B.KRISHNA MANI R BY ADV. GOVERNMENT PLEADER SMT. ANITHA RAVINDRAN R BY SRI.RENIL ANTO,SC,KTWWF BOARD (TODDY WO** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-092013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 33704 of 2011 (K)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT-P1 TRUE COPY OF THE SALE NOTICE DATED 15.5.1999 EXT2-P2 TRUE COPY OF THE NOTICE DATED 5.10.1999 UNDER SECTION 49(2) OF THE ACT. EXT-P3 TRUE COPY OF the NOTICE RECEIVED BY THE PETITIONER UNDER SECTION 49(2) OF THE REVENUE RECOVERY ACT. EXT-P4 TRUE COPY OF THE RECEIPT FOR RS.6,38,375/- ON 30.12.2009 ISSUED IN THE NAME OF 11TH RESPONDENT. EXT-P5 TRUE COPY OF THE RECEIPT FOR RS.1,72,700/-ON 20.3.2009 ISSUED IN THE NAME OF 11TH RESPONDENT. EXT-P6 TRUE COPY OF THE LETTER COMMUNICATED TO THE PETITIONER BY THE 5TH RESPONDENT ON 4.1.2000. EXTP7 TRUE COPY OF THE MAHAZAR WHICH IS OBTAINED UNDER THE RIGHT TO INFORMATION ACT. EXT-P8 TRUE COPY OF THE ORDER DATED 9.8.207 RECEIVED ON 18.8.2007 PASSED BY THE 4TH RESPONDENT EXT-P9 TRUE COPY OF THE DEED NO.4158/68 DATED 5.11.2008. EXT-P9(A) TRUE COPY OF THE DEED NO.4159/68 DATED 5.11.1968. EXT-P9(B) TRUE COPY OF the DEED NO.1389/76 DATED 14.5.1976. EXT-P10 TRUE COPY OF the APPEAL FILED BEFORE THE 3RD RESPONDENT ON 10.12.2007 BY THE PETITIONER. EXT-P11 TRUE COPY OF THE LETTER SUBMITTED BY PETITIONER BEFORE THE 7TH RESPONDENT PRAYING FOR THE BENEFITS UNDER THE AMNESTY SCHEME ON 18.7.2008 EXT-P12 TRUE COPY OF THE REPLY LETTER DATED 22.07.2008 SENT BY THE 7TH RESPONDENT EXT-P13 TRUE COPY OF THE JUDGMENT DATED 27.3.2009 IN W.PC. NO.9523/2009 OF this HONOURABLE COURT EXT-P14 TRUE COPY OF THE APPEAL FILED BY PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P15 COPY OF THE ORDER DATED 17-9-2011 OF THE 2ND RESPONDENT WHICH WAS COMMUNICATED TO THE PETITIONER ON 18-9-2011** **WP(C).No. 33704 of 2011 (K)** **--2--** **EXT.P16 COPY OF THE ARGUMENT NOTE SUBMITTED BY PETITIONER BEFORE THE 2ND RESPONDENT ON 9-8-2011** **RESPONDENTS' EXHIBITS NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **V.CHITAMBARESH,J.** = = = = = = = = = = = **W.P.(C) No. 33704 of 2011** = = = = = = = = = = = == = = = = Dated this the 5[th] day of September, 2013 ## **J U D G M E N T** An extent of about 1 acre 80 cents of land in Parassala Village of Neyyattinkara Taluk belonging to the petitioner was sold in public auction on 20-12-1999 and bid by the government for Re.1. The sale was preceded by three notices (Exts.P1,P2 and P3) purportedly issued under Section 49 (2) of the Kerala Revenue Recovery Act ('the Act' for short). Exts.P1 and P2 notices bear the dates 15-5-1999 and 5-10-1999 whereas Ext.P3 notice pursuant to which the sale was conducted is undated. The petitioner has a case that he did not receive Ext.P3 notice which was mandatory in accordance with Section 49(4) of the Act. 2. The sale was conducted for realisation of the dues under the Sales Tax Act, Abkari Workers Welfare Fund Act and Toddy Workers Welfare Fund Act. Whether the demand made by the three requisitioning authorities could be clubbed into one by the District Collector is a moot question. There are decisions to the effect that the property should be bid in auction in the name **W.P.(C) No. 33704 of 2011** 2 of the requisitioning authority only and not in the name of the government. The dictum in **District Collector, Alleppey and others vs Subeida Beevi and another (2010 (1) KLT 913) and Thirumalaiswamy. M vs. State of Kerala and others ) 2012(2)KHC 402)** are apposite. 3. The property in the instant case has not been bid in the name of the three requisitioning authorities as was warranted. What is more surprising is the fact that the sale conducted on 2012-1999 for Re.1 was confirmed about seven years after on 18-82007 only. The eleventh respondent had in the meanwhile remitted a sum of 6,38,375/- (Rupees six lakhs thirty eight₹ thousand three hundred and seventy five only) on 30-12-1999 and 1,72,700/- (Rupees one lakh seventy two thousand seven₹ hundred only) on 20-3-2000 toward the dues. The eleventh respondent is the wife of the tenth respondent who was a co-licencee of the Toddy Shops for which the dues have arisen. The payment as above has not been noticed by the District Collector before proceeding to confirm the sale without notice to the petitioner. 4. The application for availing the benefit of the Amnesty Scheme to settle the sales tax dues has been rejected for the mere reason that the sale has already taken place. The Amnesty **W.P.(C) No. 33704 of 2011** 3 Scheme has been extended till 31-12-2013 and there is no reason as to why the petitioner cannot avail of the benefits if the sale is set aside. The petitioner has also a case that there is excess attachment in terms of Section 9 of the Act and consequent sale of the entire extent of 1 acre 80 cents. The petitioner is now eager and willing to pay the entire amount due to all the three requisitioning authorities provided maximum concession is granted under the Amnesty Scheme. 5. I set aside the sale intimated under Exts.P6 communication and confirmed by Ext.P8 order for the following reasons. i) The property should have been purchased in favour of all the three requisitioning authorities and not in favour of the State alone in view of the settled decisions of this Court. ii) There is an unexplained delay of about seven years in confirming the sale and that too without noticing the subsequent payments effected. iii) There is no satisfactory evidence to hold that there was prior notice of sale as per Ext.P3 notice in accordance with Section 49 of the Act. 6. It necessarily follows that Ext.P15 order of the Commissioner of Land Revenue declining to set aside the sale deserves to be set at naught. I also quash Ext.P12 order denying **W.P.(C) No. 33704 of 2011** 4 the benefit of the Amnesty Scheme passed for the sole reason that the sale has already been conducted. The petitioner shall file a fresh application for extending the benefit of the Amnesty Scheme in the required proforma to settle the sales tax dues. The balance amount due towards the Abkari Workers Welfare Fund Act and the Toddy Workers Welfare Fund Act shall also be remitted by the petitioner. 7. The petitioner contends that the principal amount due under the three heads mentioned above even without availing the benefit of the Amnesty Scheme would come to about ₹ 19,46,274/- (Rupees nineteen lakhs forty six thousand two hundred and seventy four only). I therefore direct the government and the District Collector to restore possession of the property to the petitioner on his deposit of Rs.20 lakhs towards the dues within a period of two months. The respondents are not in any way disabled to initiate revenue recovery proceedings afresh if any dues remain unpaid by the petitioner. The writ petition is allowed. No costs. ## **V.CHITAMBARESH JUDGE** smm # **W.P.(C) No. 33704 of 2011** 5