LT.CDR.JOSEPH VILANGADAN (RTD) v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2022-02-11
Court Decision / Holding: Writ petition disposed of directing the competent respondents to deliver possession of the property to the petitioner by preparing a Mahazar and demarcating the boundary within two months.
Final Disposition: Writ petition disposed of; delivery of possession to be effected within two months with Mahazar and boundary demarcation.

Parties to the Case

Appellants / Petitioners

LT.CDR.JOSEPH VILANGADAN (RTD)

Respondents

State of Kerala
District Collector, Ernakulam
Revenue Divisional Officer, Fort Kochi
Tahsildar (RR), Kanayannur Taluk, Ernakulam
Tahsildar (LR), Kanayannur Taluk, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• K.T. Thomas Mathew
• B. Kurian

Counsels for Respondents

• SMT. PARVATHY KOTTOL, Government Pleader

Case Synopsis & Summary

This writ petition (WP(C) No. 23300/2021) before the Kerala High Court, Ernakulam, seeks delivery of possession of a property auctioned in 2015 for recovery of sales tax arrears. The petitioner, a retired Lieutenant Commander of the Indian Navy, bid for 4.72 acres in Survey No.1410/2 at Nadama Village, Kanayannur Taluk, in an auction conducted by the 4th respondent on 17.04.2015 and paid ₹60,03,000 on 12.05.2015. Initially, the sale was not confirmed due to an owner’s appeal; the appeal was later dismissed, the sale was confirmed in the petitioner’s name, and a Certificate of Sale was issued. The Revision Petition filed by the original owner was dismissed by the Land Revenue Commissioner. Despite sale confirmation and mutation in the petitioner’s favor, delivery of possession has not been effected. A communication (Ext.P12) by the Tahsildar (LR) directs the petitioner to approach the Civil Court for boundary disputes. The petitioner’s counsel contends that once the property is auctioned and the purchaser has paid, the respondents must deliver possession with proper demarcation and a Mahazar. Reliance is placed on Elizabeth Jacob v. District Collector and on Section 58 of the Kerala Revenue Recovery Act, 1968 to compel delivery as if decreed by a Civil Court. The Government Pleader argues Elizabeth Jacob is distinguishable and Section 58 may not apply where there is no boundary dispute. After hearing, the court held that the respondents have a duty to deliver possession and directed them to prepare a Mahazar and demarcate the boundary within two months.

Provisions of Law Cited

Kerala Revenue Recovery Act, 1968 - Section 58

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that after a valid auction, payment of sale consideration, issuance of a Certificate of Sale, and mutation, the respondents are obliged to deliver possession of the property with proper demarcation and a Mahazar. He relies on Elizabeth Jacob v. District Collector and on Section 58 of the Kerala Revenue Recovery Act, 1968, to compel possession in the manner of a Civil Court decree.

Contentions of Respondents

Respondents contend that delivery and demarcation require appropriate steps and that boundary disputes may require Civil Court intervention; they argue Elizabeth Jacob is distinguishable and Section 58 may not apply where there is no boundary dispute. They submitted that possession has not been delivered yet and that demarcation can be done with consent and proper process.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Elizabeth Jacob v. District Collector	2008 (3) KLT 957 SC	Mentioned Only	Petitioner relied on this Apex Court decision to support a purchaser's right to possession; Government Pleader argued it is distinguishable; the judgment does not form the sole basis for the court's order in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943** **WP(C) NO. 23300 OF 2021** **PETITIONER: LT.CDR.JOSEPH VILANGADAN (RTD), AGED 38 YEARS, VILANGADAN HOUSE, LBS ROAD, AIMS P.O, ERNAKULAM, KOCHI-682014. BY ADVS. K.T.THOMAS MATHEW B. KURIAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**COLLECTORATE, KAKKANAD,**| ||**ERNAKULAM, KOCHI-682030.**| |**3**|**THE REVENUE DIVISIONAL OFFICER,**| ||**OFFICE OF REVENUE DIVISIONAL OFFICER,**| ||**FORT KOCHI, KOCHI-682001.**| |**4**|**THE TAHSILDAR (RR),**| ||**TALUK OFFICE, KANAYANNUR,**| ||**ERNAKULAM, KOCHI-682011.**| |**5**|**THE TAHSILDAR (LR),**| ||**TALUK OFFICE, KANAYANNUR,**| ||**ERNAKULAM, KOCHI-682011.**| ||**SMT.PARVATHY KOTTOL, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)No.23300/2021** **2** ## **JUDGMENT** **Dated this the 11[th] day of February, 2022** The petitioner, who is a retired Lieutenant Commander from the Indian Navy, is before this Court seeking to direct the respondents to effect delivery of possession of the property covered by Ext.P9 Certificate of Sale to the petitioner. The petitioner also seeks to quash Ext.P12 communication issued by the 5[th] respondent. 2. The petitioner states that he bid in auction an extent of 4.72 Ares of property in Survey No.1410/2 of Nadama Village, Kanayannur Taluk, in an auction conducted by the 4[th] respondent on 17.04.2015 for recovery of sales tax arrears. The petitioner remitted the sale consideration of ₹60,03,000/on 12.05.2015. **WP(C)No.23300/2021** **3** 3. However, the sale was not confirmed, owning to an appeal filed by the owner of the property. The appeal was later dismissed and the sale confirmed in the name of the petitioner. A Certificate of Sale was also issued. The Revision Petition filed by the original owner of the property was dismissed by the Land Revenue Commissioner. 4. The petitioner submits that the respondents have not cared to effect delivery of possession of the property. Though the petitioner remitted the sales consideration six years ago, he is not in a position to enjoy the property. By Ext.P12 communication, the Tahsildhar (LR) has directed the petitioner to approach the Civil Court, if there is any dispute regarding the boundary. The learned counsel for the petitioner submits that when the property has been auctioned by the respondents and the petitioner has purchased the property, the respondents are bound to effect delivery of possession of the property with proper demarcation and Mahazar to the petitioner. **WP(C)No.23300/2021** **4** 5. The learned counsel for the petitioner relied on the judgment of the Apex Court in _**Elizabeth Jacob v. District Collector** [2008 (3) KLT 957 SC]_ and urged that an auction purchaser has a right to be put in possession of the property as per the Rules. The learned counsel for the petitioner also relied on Section 58 of the Kerala Revenue Recovery Act, 1968, which provides that the Collector, on application and production of a Certificate of Sale, shall cause proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the immovable property had been decreed to the purchaser by a decision of a Civil Court. In the circumstances, the respondents are compellable to effect delivery of possession of the property purchased by the petitioner in accordance with law. 6. The learned Government Pleader resisted the writ petition. The learned Government Pleader submitted that the petitioner is the successful auction purchaser. The sale consideration was paid. Mutation was effected in Revenue **WP(C)No.23300/2021** **5** Records. The officials of the respondents went to the property purchased by the petitioner for demarcating the same. The petitioner objected to the demarcation demanding that survey stones have to be put in the boundaries. In such circumstances, the Tahsildhar required the petitioner to approach Civil Court, if there is any dispute regarding the boundaries. The respondents have received the purchase money, issued Purchase Certificate and mutation has been effected in favour of the petitioner. Therefore, no more action is required from the side of the respondents. The respondents are ready to demarcate the property but the petitioner insists that the survey stones have to be installed. 7. The learned Government Pleader submitted that the judgment of the Apex Court in _**Elizabeth Jacob**_ (Supra) was delivered in a different context and it would not apply to the facts of the case. The learned Government Pleader further submitted that Section 58 of the Revenue Recovery Act may not also apply in the case because Section 58 will apply only **WP(C)No.23300/2021** **6** when there is a dispute regarding the boundary or ownership of the property. 8. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 9. It is an admitted fact that the petitioner was the successful bidder and has purchased the property paying the sale consideration. The Certificate of Purchase has also been issued to the petitioner. Mutation is effected in respect of the property, in favour of the petitioner. However, the petitioner demands that a former delivery of possession should be effected. 10. When the respondents effect a sale of the property in favour of the petitioner, it is the duty of the respondents to effect delivery of possession to the petitioner. For a delivery of possession of the property, inspection of the property, preparation of Mahazar and demarcation of boundary of the property are necessary. At a later date, disputes should not arise in respect of the lawful possession of the property **WP(C)No.23300/2021** **7** purchased by the petitioner. The respondents have no case that they have effected delivery of property to the petitioner. In the circumstances, the writ petition is disposed of directing the competent among the respondents to effect delivery of possession of the property sold to the petitioner by preparing a Mahazar and demarcating the boundary of the property. It shall be done within a period of two months. Sd/- **N. NAGARESH JUDGE** SR **WP(C)No.23300/2021** **8** ## **APPENDIX OF WP(C) 23300/2021** ## **PETITIONER'S EXHIBITS:** **Exhibit P1 TRUE COPY OF MAHAZAR DATED 22.07.2014 PREPARED BY VILLAGE OFFICER, NADAMA. Exhibit P2 TRUE COPY OF THE ORDER DATED 18.11.2016 PASSED BY 2ND RESPONDENT.** **Exhibit P3 TRUE COPY OF JUDGMENT DATED 14.03.2017 IN WPC NO.2333/2017.** **Exhibit P4 TRUE COPY OF ORDER DATED 08.05.2017 ISSUED BY REVENUE DIVISIONAL OFFICER, FORT KOCHI.** **Exhibit P5 TRUE COPY OF CERTIFICATE OF SALE DATED 04.08.2017 ISSUED BY REVENUE DIVISIONAL OFFICER, FORT KOCHI.** **Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 02.04.2018 IN W A NO.641/2018. Exhibit P7 TRUE COPY OF THE ORDER DATED 31.07.2018 ISSUED BY LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM.** **Exhibit P8 TRUE COPY OF THE ORDER DATED 28/02/2019 ISSUED BY 3RD RESPONDENT.** **Exhibit P9 TRUE COPY OF THE REGISTERED CERTIFICATE OF SALE DATED 04.09.2020 IN FAVOUR OF PETITIONER.** **Exhibit P10 TRUE COPY OF THE BASIC TAX RECEIPT DATED 16.12.2020 ISSUED BY VILLAGE OFFICER.** **Exhibit P11 TRUE COPY OF REPRESENTATION DATED 24.07.2020 SUBMITTED BY PETITIONER. Exhibit P12 TRUE COPY OF LETTER DATED 24.08.2021 ISSUED BY 5TH RESPONDENT.** **Exhibit P13 TRUE COPY OF APPLICATION DATED 06.10.2021 SUBMITTED BY PETITIONER.**