Jose M.L v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **WP(C).No.13231 OF 2013(D)** ## **PETITIONER:** **JOSE M.L AGED 49 YEARS S/O LOUIS, MECHERRYPADI HOUSE, ALAPPAD, THRISSUR** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF THE REVENUE, SECRETARIAT, THIRUVANANTHAPURAM 695001** - **2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM 695001** - **3 THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM 605001** - **4 THE DISTRICT COLLECTOR THRISSUR 680001** - **5 THE REVENUE DIVISIONAL OFFICER THRISSUR 680001** - **6 THE TAHSILDAR (RR) THRISSUR 680001** ## **R1 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SRI.B. VINOD, SR. G.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13231 OF 2013** **2** ## **JUDGMENT** ## **(Dated this the 12th day of March, 2020)** ``` This writ petition is filed challenging Ext.P5 order of the 5[th] respondent, which has been confirmed by Ext.P8 order of the 3[rd] respondent and again confirmed by Ext.P9 order of the Government under Section 83(2) of the Kerala Revenue Recovery Act. ``` ``` 2. Shorn of all unnecessary detail the ``` ``` brief facts are that the writ petition is an auction purchaser of land in a public auction conducted by the 6[th] respondent on 8/10/2009, for a ``` ``` sum of Rs.14 lakhs/-. The said property was brought ``` ``` to sale under the provisions of the Revenue Recovery Act for recovery of amounts due from one K.D.Suresh, who had defaulted arrears towards toddy workers welfare fund. The petitioner paid 15% of the amount on the date of sale and the balance ``` **WP(C).No.13231 OF 2013** **3** ``` amount on 3/11/2009. ``` ``` 3. It appears that the 5[th] respondent issued Ext.P5 order of 6/7/2010 cancelling the sale on the sole ground that the sale of the entire land was not necessary in view of the fact that the total outstanding on the date of the sale was only about Rs.4 lakhs. It is true that Ext.P5 order was passed without hearing the petitioner. The learned counsel for the petitioner would urge that in view of the law laid down by this Court in Captain vs. District Collector 1999(2) KLT 547, on the sole ground that Ext.P5 order was passed without hearing the petitioner, that order is liable to be set aside. ``` ``` 4. The learned Government pleader on the other hand invites my attention to Section 9 of the Revenue Recovery Act, which clearly provides that the attachment is not to be excessive meaning thereby the value of the items brought to sale the Revenue Recovery Proceedings must be commensurate ``` **WP(C).No.13231 OF 2013** **4** ``` with the amount sought to be realized. He also invites my attention to Section 54 of the Revenue Recovery Act, and says that the proviso to Section 54 makes it clear that even without any application being made for setting aside the sale, the Collector may, after recording his reasons for the same, set aside the sale. He also points out that Section 73 of the Revenue Recovery Act empowers the ``` ``` Collector to delegate his powers to any another officer and the 5[th] respondent has been so delegated with the powers of the Collector. It is in ``` ``` exercise of such power of delegation that the Revenue Divisional Officer has issued Ext.P5 order. ``` ``` 5. The facts of the case show that the ``` ``` petitioner had approached this Court earlier through writ petition No.9734 of 2011, challenging Ext.P5 order and this Court through Ext.P7 judgment ``` ``` directed that the petitioner shall approach the ``` ``` revisional authority under Section 83 (1) of the Revenue Recovery Act to redresses his grievances. ``` **WP(C).No.13231 OF 2013** **5** ``` The petitioner had filed such revision petition before the Commissioner for Land Revenue. After considering the grievance of the petitioner the Commissioner for Land Revenue issued Ext.P8 order on 9/6/2012. The petitioner challenged Ext.P8 ``` ``` before the Government, in further revision and Ext.P9 order dated 27/4/2013 was issued. It must be noticed that both the Commissioner for Land ``` ``` Revenue and the Government have heard the petitioner and considered his grievances before confirming Ext.P5 order. ``` ``` 6. The learned counsel for the petitioner ``` ``` would strenuously urge that this Court should set aside Ext.P5 order and consequential orders confirming the same on the sole ground that Ext.P5 was issued without affording an opportunity of being heard. I am not inclined to do so. It is ``` ``` settled law that there is no such thing as a ``` ``` technical violation of the rules of natural justice and unless this Court were to find that ``` **WP(C).No.13231 OF 2013** **6** ``` substantial prejudice has been caused to the petitioner, this Court need not exercise its jurisdiction to set aside Ext.P5. I draw sustenance ``` ``` for the view I have taken from the judgment of the Supreme Court in Aligarh Muslim University & Ors. ``` ## _**`v. Mansoor Ali Khan`**_ `-` **`(2000) VII SCC 529`** `.` `7. Further in view of the fact that, Exts.P8` ``` and P9 have been issued after hearing the petitioner, I do not think that the petitioner can make out a case that he has been prejudiced by the original order having been passed without hearing him. The learned Government Pleader also alertly points out that the property that was sold is a property having an extent of about 66.75 cents of land to together with the building thereon. Thus it is clear that the view taken by the Revenue Divisional Officer in Ext.P5 is substantially correct and fairness demanded that he takes the view that he did in Ext.P5. While declining relief I also notice that the petitioner does not ``` **WP(C).No.13231 OF 2013** **7** ``` dispute the fact that the entire amount he had deposited was returned to him immediately after Ext.P5 order was passed. In view of the above this writ petition fails it is accordingly dismissed. ``` **Sd/-** ## **GOPINATH P.** **JUDGE** AJM **WP(C).No.13231 OF 2013** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF RR NOTICE DATED 12-08-2009 ISSUED BY THE 6TH RRESPONDENT** **EXHIBIT P2 TRUE COPY OF RE-AUCTION NOTICE DATED 2609-2009** **EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 12-102009** **EXHIBIT P4 TRUE COPY OF RECEIPT DATED 03-11-2009** - **EXHIBIT P5 TRUE COPY OF PROCEDDINGS DATED 06-072010 OF 5TH RESPONDNET** - **EXHIBIT P6 TRUE COPY OF REPRESENTATION MADE BEFORE THE 4TH RESPONDNET DATED 11-08-2010** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 30-03-2011 IN WPC NO 9734/11 OF THIS HON'BLE COURT** - **EXHIBIT P8 TRUE COPY OF ORDER DATED 09-06-2012 OF 3RD RESPONDNET** - **EXHIBIT P9 TRUE COPY OF ORDER DATED 27-04-2013 OF 2ND RESPONDNET** **RESPONDENTS' EXHIBITS: NIL.** **AJM //TRUE COPY// PA TO JUDGE**