Balachandran Ranee Metal Industries v. District Collector, Calicut and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938** **WP(C).No. 11937 of 2009 (J)** **---------------------------PETITIONER(S):** **-------------** **1. BALACHANDRAN RANEE METAL INDUSTRIES, CHERUVANNUR, FAROKE,, KOZHIKODE 673 631. (DIED) WIFE OF THE DECEASED PETITIONER IS IMPLEADED.** ***ADDL. P2 IMPLEADED :** **2. SMT.K.REMA DEVI** **W/O.LATE K.BALACHANDRAN, DALIYA, SNEHA RESIDENCY, EZHOOR, TIRUR-1. *LEGAL HEAR AND WIFE OF THE DECEASED PETITIONER IS IMPLEADED AS PER ORDER DT 3/7/2014 IN IA 8652/14.** **BY ADV. SRI.M.P.ASHOK KUMAR** **RESPONDENT(S):** **--------------** **1. THE DISTRICT COLLECTOR, CALICUT** **2. STATE OF KERALA, SECRETARY TO GOVT., REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** ***ADDL. R3 IMPLEADED :** ## **3. SAIRABHANU** **W/O.SUBAIR, MEENPALODI PARAMBA, KOLANGARAPEEDIKA, GURVAYOORAPPAN COLLEGE PO., KOZHIKODE - 673 014.** ***ADDL. R3 IS IMPLEADED AS PER ORDER DT 20/2/2015 IN IA 2116/2015.** **R1 & R2 BY GOVERNMENT PLEADER BY ADDL. ADVOCATE GENERAL SRI.K.A.JALEEL, ADDL.R3 BY ADV. SRI.SRINATH GIRISH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6/6/2016, THE COURT ON 05-08-2016 DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 11937 of 2009 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE REVENUE RECOVERY NOTICE DT 18/3/1999.** - **P2: COPY OF THE NOTICE DT 31/7/1999 ISSUED UNDER SECTION 36.** - **P3: COPY OF THE DISCONNECTION NOTICE DT 13/1/2005 ISSUED BY THE ASSISTANT ENGINEER, KSEB, FAROKE.** - **P4: COPY OF THE ORDER DT 27/8/2001 ISSUED BY THE GOVT.** - **P5: COPY OF THE REPRESENTATION DT 29/9/2008.** - **P6: COPY OF THE REPRESENTATION DT 22/11/2008.** - **P7: COPY OF THE REPRESENTATION DT 28/11/2008.** - **P8: COPY OF THE LETTER 18/2/2009 ISSUED BY THE GOVT.** - **P9: COPY OF THE NOTICE ISSUED BY THE DISTRICT COLLECTOR.** - **P10: COPY OF THE REPRESENTATION DT 20/10/2014 FILED BEFORE THE DISTRICT COLLECTOR.** - **P11: COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE DISTRICT COLLECTOR.** - **P12: COPY OF THE REPRESENTATION DT 20/10/2014 SUBMITTED BEFORE THE TAHASILDAR.** **RESPONDENT'S EXHIBITS :** **EXT.R1(A): COPY OF ASSIGNMENT NO.L11/11262/2013 DT 13/1/2014.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) No. 11937 of 2009 ================== Dated this, the 5[th] day of August, 2016 ## **J U D G M E N T** This writ petition is filed challenging Ext.P8 order and seeking for a direction to the respondents, State and its Officers, to return 15 cents of land in Re.Sy.No.265/2 and the machinery kept in the property and for other consequential reliefs. Ext.P8 is an order passed by the Government refusing to return the bought-in-land on the ground that the application has been submitted after nine years from the date of confirmation of sale. 2. The facts involved in the writ petition would disclose that for recovering sales tax arrears for the years 1994-95 and 1995-96, the aforesaid property was attached and put to auction. It is stated that in the meantime, petitioner approached the Government to settle the liability. Petitioner was directed to pay 40% of the total amount and the balance amount in 6 instalments as per Ext.P4 dated 27/8/2001. According to the petitioner, he paid the said amount. Thereafter, he had come to know that the property was purchased by the Government under Section 50(2) W.P(C) No.11937/09 -:2:- of the Kerala Revenue Recovery Act (hereinafter referred to as the RR Act). He had come to know about the revenue sale only in 2008 when he made enquiries with the Sub Registrar's Office. He submitted a representation dated 29/9/2008 to the Tahsildar to release the property. Since there was no reply, he made further representations. However, the same came to be rejected by Ext.P8. 3. Petitioner submits that Ext.P8 oder is illegal and is liable to be quashed. According to him, he had paid the entire amount and possession of the property was not taken by the Government. It is stated that there is a strike going on in front of the factory gate and the possession still remains with the petitioner. 4. During the pendency of the writ petition, petitioner died and his wife was impleaded as additional 2[nd] petitioner. A third party was impleaded as additional 3[rd] respondent as per order in IA No.2116/15. The additional 3[rd] respondent has stated that as per proceedings dated 10/12/2014, the District Collector had assigned 2½ cents of land in Sy.No.265/2 of Cheruvannur Village to her and when she approached the Tahsildar, Kozhikode W.P(C) No.11937/09 ## -:3:- for the purpose of handing over possession, she had come to know about the stay granted in the case. 5. Petitioner has also filed an application to amend the writ petition as IA No.6363/2016 for cancelling the said assignment in favour of the additional 3[rd] respondent. 6. In the counter affidavit filed by the 1[st] respondent, it is stated that revenue recovery proceedings were taken for recovering sales tax arrears of `1,19,915/-. Notices were issued under Sections 7 and 34 of the RR Act to the petitioner and the same were published by affixture on 26/3/1999 by the Village Officer, Cheruvannur. None turned up for clearing the arrears of sales tax and 10 cents of land in R.S No.265/2 of Cheruvannur Village, Kozhikode Taluk was attached on 3/7/1999. The property was put to sale after complying all procedures on 8/11/2000, 28/12/2000 and 8/2/2001. There were no bidders in the auction and therefore the Government purchased the same for `1/- on 8/2/2001 invoking Section 50(2) of the RR Act. Sale was confirmed on 8/6/2001. It is subsequent to the confirmation of sale that the Revenue Minister allowed instalment facility on condition that 40% of the amount due has to be paid on or before W.P(C) No.11937/09 -:4:- 29/9/2001 and the balance in 6 equal monthly instalments. According to the 1[st] respondent, the defaulter had paid certain amounts before the sale and after the sale totalling `1,22,000/-. The interest and collection charges were not paid. It is further stated that other demands towards sales tax arrears were also pending against the petitioner. `1,02,742/- as per RRC No.43/2003-04 dated 2/7/2003, `35,850/- as per RRC No.19/200203, `39,066/- as per RRC No.156/01-02 and `1,29,403/- as per RRC No.8/05-06 with interest and collection charges. It is further submitted that the request for reconveyance of land was made after a period of nine years from the date of confirmation of sale. As per the existing Government Orders, reconveyance of boughtin-land to the original land owner or legal heirs is applicable only if the owner remits the full amount and applies for reconveyance within two years from the date of confirmation of sale. 7. Respondents submit that the sale was conducted after complying with all necessary formalities and even a Gazette notification was made proposing to conduct sale. Further, in addition to the above liability, the petitioner is liable to pay further amounts to Government as well. Reference is also made W.P(C) No.11937/09 ## -:5:- to Government Order dated 22/3/1996 wherein it is stated that in cases where the date of sale confirmation of bought-in-land is on or after 1/11/1983, the request for reconveyance from the original owner of his undisputed heirs will be allowed on payment of the current market value of the land. In the affidavit filed as IA No.3534/2016, the Special Deputy Tahsildar (LR), the 1[st] respondent, had stated that out of the aforesaid land, 2.5 cents in R.S.No. 265/2 was assigned to Smt.Khadeeja as per order dated 13/1/2014 and patta has also been issued to her. It is further stated that under the Zero Landless Scheme, the aforesaid 10 cents were included and apportioned to four plots of 2.5 cents each as plot Nos.36 to 39. Plot No.37 was assigned to Smt.Saira Banu as per order of assignment dated 15/12/2014. 8. Having regard to the aforesaid factual situation, the question is whether the bought-in-land can be reconveyed to the petitioner on the petitioner remitting the amount subsequent to the date of confirmation of sale. 9. Heard the learned counsel for the petitioner Sri.M.P.Ashok Kumar and the learned Special Government Pleader Sri.Joe Kalliath. W.P(C) No.11937/09 -:6:- 10. The petitioner had not pointed out any illegality or irregularity in the conduct of sale. The only contention is that once the payment had been made as per the directions issued in Ext.P4, there is no reason why the land should not be reconveyed. Section 50(2) of the RR Act is a special procedure by which the officer conducting the sale purchases the property on behalf of the Government for an amount of 10 paise. The Government purchases the property when there are no bidders or if the highest bid is insufficient to cover the arrears as referred to in sub section (1) of Section 50. Section 50 reads as under; ## _“_ _**50. Bidding on behalf of Government**_ _(1) When an immovable property is put up for sale at the time and place specified in the notice under clause (2) of Section 49 for the recovery of arrears of public revenue due on land, if there be no bid or if the highest bid be insufficient to cover the said arrears and those subsequently accruing due. upto the date of sale, together with interest and cost of process, the officer conducting the sale shall postpone the sale to another date which shall not be later than sixty days from the date of the first sale and give notice of the subsequent sale as required under clause (4) of Section 49._ W.P(C) No.11937/09 -:7:- _(2) When the property is put up for sale on the date to which it was postponed under subsection (1) at the time and place specified in the notice,-_ _(i) if there be no bid, the officer conducting the sale may purchase the property on behalf of the Government for an amount of ten paise;_ _(ii) if the highest bid be insufficient to cover the arrears referred to in sub-section (1) and those subsequently accruing due upto the date of the sale and interest and cost of process, such officer may bid on behalf of the Government for an amount higher than such bid by ten paise, and in either case the Government shall acquire the property subject to the provisions of this Act. (3) The provisions of clause (3) of Section 49 and Section 84 shall not apply to cases where immovable property is purchased on behalf of the Government under this section._ _(4) Notwithstanding anything contained in this Act, after the confirmation of the sale, all the right, title and interest of the defaulter, purchased on behalf of the Government, shall be deemed to have vested in the Government from the date of purchase and if the defaulter is in actual possession of the property or if he is entitled to possession, the Collector or the authorised officer shall, immediately after the confirmation of the sale, take possession of the_ W.P(C) No.11937/09 ## -:8:- _property. If the Collector or the authorised officer is opposed or impeded in taking possession, he shall, if a Magistrate, enforce the surrender of the land to himself and, if not a Magistrate, he shall apply to a Magistrate, and such Magistrate shall enforce the surrender of the land to the Collector or the authorised officer as the case may be.”_ Section 50(4) further indicates that after confirmation of the sale, all the right, title and interest of the defaulter, purchased on behalf of the Government, shall be deemed to have vested with the Government from the date of purchase and if the defaulter is in actual possession of the property, the Collector or the authorized officer shall take possession of the property. 11. It is the settled law that once the sale is confirmed, the right, title and interest in the land vest with the Government. There is no specific procedure prescribed under the RR Act for reconveyance of the said land. However, as per certain Government Orders, reconveyance is possible on certain conditions. Petitioner apparently does not make any claim on that basis. In fact, the RR Act contains appropriate measures to avoid the sale by filing an application under Section 52 or 53. W.P(C) No.11937/09 ## -:9:- Apparently, no such application is filed in the present case and hence, the sale is confirmed in terms of Section 54 of the RR Act. 12. The fact that the petitioner had remitted the amount subsequently in terms with Ext.P4 by itself will not enable the petitioner to seek for reconveyance in so far as no such provision is available under the statute. Further, it is relevant to note that the property was purchased by the Government only for `1/-. But, the liability of the defaulter in respect of the balance amount continues to remain and he continues to be a defaulter liable to pay the amount to the Government. Therefore, subsequent payment by the defaulter after confirmation of sale will not enable the defaulter to seek reconveyance as a matter of right. The position of law has been laid down by a Division Bench of this Court in _**State of Kerala v. George Jacob**_ (2010 (3) KLT 483), wherein it is held as under; _“3. The Amnesty Scheme admittedly entitles the respondent for settlement of liability and it was in fact granted to him by waiving accrued interest of around Rs.58 lakhs and on collection of the principal amount of Rs.27,61,131/-. So far as revenue recovery proceedings are concerned, Ext.P2 Amnesty Scheme states as follows:_ -:10:- ## W.P(C) No.11937/09 _“Revenue recovery action initiated if any will be withdrawn in these cases and collection charges shall be waived.”_ _The question to be considered is whether withdrawal of revenue recovery action involves automatic cancellation of revenue sale made in recovery proceedings. Government Pleader submitted that once sale is made under S.50 of the Act whereunder Government purchased the property for rupee one and when the sale is confirmed, it is like a sale made to a stranger which cannot be interfered through executive orders issued by the Government under Amnesty Scheme. Counsel for the respondent contended that the very purpose of settling liability under the Amnesty Scheme is to regain the lost property and so long as the purchaser is Government, Ext.P2 scheme entitles the respondent for reconveyance of the property after settlement of liability under Amnesty Scheme. We are unable to accept this contention of the respondent because Ext.P2 scheme does not provide for cancellation of sale effected under the Revenue Recovery Act. Withdrawal of revenue recovery action contemplated under Ext.P2 order can only mean that there will be no further revenue recovery proceedings and it does not invalidate revenue recovery proceedings that have culminated in sale and confirmation of sale of property. It is to be noted that for recovery of the very same arrears, the co-licencee's property was sold to a stranger_ ## W.P(C) No.11937/09 ## -:11:- _and such stranger has obtained title over the property which is not sought to be unsettled by it's owner based on the amnesty benefit availed by the respondent. So far as sale of property is concerned, it makes no difference whether purchaser is the Government under S.50 or whether the sale is to a stranger because title in both cases pass on to the purchaser. Therefore, unless the Amnesty Scheme provides for reconveyance of property retained by the Government as bought in land, the court cannot order reconveyance to the defaulter who has settled the liability under Amnesty Scheme.Long before Ext.P2, Government had issued several orders on the subject, two of which are produced as Exts.R1(a) dated 9.2.1968 and Ext.R1(b) dated 22.3.1996. In these two Government orders what is stated is that property purchased by the Government and retained as bought-in-land could be reconveyed only if application is made within two years from such sale and only if defaulter clears arrears with interest or in the alternative, the market value of the land. The latest decision of the Government which is a Cabinet decision produced in court shows that even under Amnesty Scheme, bought-in-land has to be dealt with by the Revenue Department or atleast in consultation with the Revenue Department. Government certainly has the authority to reconvey land purchased by it in revenue sale and retained as bought-in-land on the defaulter satisfying_ W.P(C) No.11937/09 ## -:12:- _Government Orders in regard to reconveyance. However, in this case we do not find any specific provision in Ext.P2 Amnesty Scheme for concellation of sale of property in recovery proceedings by Government to itself under S.50 of the Act or a provision for reconveyance of such property to the defaulter on settlement of liability under Amnesty Scheme. We are, therefore, not in a position to uphold the finding of the learned Single Judge declaring respondent's entitlement for reconveyance of the bought in land under Ext.P2.”_ That was a case in which by virtue of an Amnesty Scheme, the petitioner remitted the entire amount payable to the revenue. Thereafter, he sought for reconveyance of the land. It was held that in the absence of any specific provision in the Amnesty Scheme for cancellation of sale of property purchased by the Government under Section 50(2), petitioner cannot seek such relief. The same proposition applies to the present facts also. Once the property is purchased by the Government, it becomes vested in the Government absolutely, which right can be taken away only by a statute or by a contract between the parties. 13. As already indicated in the counter affidavit, certain Government Orders are referred which permitted reconveyance if W.P(C) No.11937/09 **==> picture [27 x 9] intentionally omitted <==** the application was filed within two years. In certain Government Orders, the application will be considered only on payment of entire market value. No such case had been brought up in the present _lis_ and therefore such a situation does not arise. 14. In the above circumstances, I do no think that petitioner is entitled for any relief as sought for in the writ petition and accordingly, the same is dismissed. Since the petitioner is not entitled for any relief in the writ petition, the application seeking amendment of the writ petition, IA No.6363/2016, is also dismissed. **Sd/-** ## **A.M. SHAFFIQUE, JUDGE** Rp