Najeeb v. Secretary, Revenue Department, Government of Kerala, Thiruvananthapuram, and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, ``` ## **`1943`** ## **`WP(C) NO. 8513 OF 2015`** ## **`PETITIONER:`** ``` NAJEEB AGED 38 YEARS KAIPPAKKETTY PADINJATTATHIL, ``` ## **`AMBALATHUM BHAGAM MURI, PORUVAZHI VILLAGE,`** ``` KOLLAM - 690 520. ``` ``` BY ADVS. ``` ``` SRI.SUKUL KHADER SRI.PEARSON S.FERNANDEZ ``` ## **`RESPONDENTS:`** - **`1 THE SECRETARY, REVENUE DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.`** - **`2 THE COMMISSIONER OF LAND REVENUE THIRUVANANTHAPURAM.`** - **`3 THE REVENUE DIVISIONAL OFFICER KOLLAM.`** - **`4 THE TAHSILDAR REVENUE RECOVERY KUNNATHOOR, KOLLAM.`** - **`5 THE VILLAGE OFFICER PORUVAZHI VILLAGE, KOLLAM.`** WP(C) NO. 8513 OF 2015 ``` 2 ``` ``` ADDL R6SRI.K.V.NOUSHAD ``` ``` S/O.VAVAKANNU RAVUTHAR, KIZHEKKE VILAVADATHIL, THEKKEMURI, SHOORANADU VADAKKU VILLAGE, KUNNATHOOR TALUK, SHOORANADU PO., ``` ``` KOLLAM - 690 522. ``` ``` IS IMPLEADED AS PER ORDER DATED 22.07.2015 IN I.A.NO.10242 OF 2015 ``` ``` SRI.APPU P S, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 8513 OF 2015 ``` 3 ``` ## **JUDGMENT** Dated this the 24[th] day of February, 2022 The petitioner, a resident of Poruvazhy Village in Kollam District, has approached this Court seeking to quash Exts.P5 and P6 orders passed by the 2[nd] and 1[st] respondents respectively and to direct the 3[rd] respondent to confirm the auction sale bid by the petitioner. 2. The petitioner states that he was the successful bidder in the auction of 19.12 Ares of land conducted by the respondents for realisation of sale tax arrears due from a third party. The respondents fixed the Upset Price for 19.12 Ares of land as `1,33,840/-. The auction was conducted on 28.02.2008. The petitioner made a bid for `1,60,000/-. The petitioner turned out to be the highest bidder. The petitioner deposited the entire amount by 18.03.2008. WP(C) NO. 8513 OF 2015 ``` 4 ``` 3. However, the respondents issued orders cancelling the auction sale on 27.04.2009. Ext.P1 order cancelling the sale indicated that the Upset Price and the sale amount did not match with the market value of the land. 4. Aggrieved by Ext.P1 order, the petitioner invoked his revisional remedy under Section 83(1) of the Revenue Recovery Act, 1890. The Revisional Authority allowed the Revision Petition filed by the petitioner on 11.06.2012 and directed that the matter be heard again. By Ext.P3 order dated 24.12.2012, the Revenue Divisional Officer, however, upheld the cancellation of the sale, again. 5. Aggrieved by Ext.P3 order of the Revenue Divisional Officer, the petitioner filed a Revision Petition before the 2[nd] respondent-Commissioner of Land Revenue. The Commissioner of Land Revenue directed the Village Officer to submit a report on the valuation of the land. According to the petitioner, the Village Officer submitted Ext.P4 report stating WP(C) NO. 8513 OF 2015 ``` 5 ``` that the sale of the property was in perfect consonance with the notification for sale. In spite of Ext.P4 report, the 2[nd] respondent upheld the cancellation of sale and passed Ext.P5 order dated 12.03.2014. The petitioner preferred a further revision invoking Section 83(2) of the Revenue Recovery Act. The 1[st] respondent, without appreciating the arguments and contentions of the petitioner, rejected the said Revision Petition by Ext.P6 order dated 06.01.2015. 6. The learned counsel for the petitioner submitted that the 5[th] respondent had arrived at the value of `7,874/- per Are, only after considering a number of Sale Deeds registered during the period of auction. Those registered Sale Deeds dealt with land in the same area. Still, the 2[nd] respondent dismissed the Revision Petition filed by the petitioner arbitrarily. The 2[nd] respondent has taken a stand that the land value fixed by the Village Officer was lesser than the prevailing fair value of the land fixed. It is evident that Ext.P5 Dismissal WP(C) NO. 8513 OF 2015 ``` 6 ``` Order was passed without considering the actual valuation undertook by the 5[th] respondent. Ext.P5 is therefore liable to be set aside. 7. The learned counsel for the petitioner further urged that Ext.P4 would show that Exts.P1 and P3 were passed by the 3[rd] respondent without properly conducting valuation of the property. 8. The learned counsel for the petitioner relied on a judgment of this Court in _**Senthil Kalidas M. v. Revenue Divisional Officer, Palakkad and others** [2016 KHC 285],_ wherein this Court held that a Sale Deed can be set aside only in three contingencies. These contingencies are: (1) on deposit of the amount under Section 52; (2) on a sale being held to be vitiated by material irregularity, or mistake or fraud in publishing or conducting it, provided, the applicant has sustained substantial injury thereof under Section 53; and (3) the Collector has reason to think that the sale ought to be set WP(C) NO. 8513 OF 2015 ``` 7 ``` aside under the proviso to Section 54 and in the last case the ingredients contemplated under Section 53, namely, material irregularity, mistake or fraud in publishing or conducting the sale, do not have any relevance. In view of the law thus laid down by this Court, the respondents could not have cancelled the concluded sale in favour of the petitioner, contended the learned counsel for the petitioner. 9. The learned Government Pleader contested the writ petition. The 1[st] respondent-Secretary to Revenue Department filed a counter affidavit. The Government Pleader pointed out that the revenue recovery sale was necessitated for realising an amount of `15 lakhs towards Sales Tax dues of the original owner of the land. The Upset Value of the land was fixed as `7,000/- per Are. Actually, the market value of the land there was about `22,500/- per Are. 10. The Land Revenue Commissioner had directed to conduct resale of the property after giving due publicity. The WP(C) NO. 8513 OF 2015 ``` 8 ``` Valuation Report of the Village Officer submitted on 24.08.2013 did not reflect the market value of the land. For auction sale in Revenue Recovery cases, the market value is assessed after local enquiry and considering the fair value. In the Report filed by the Village Officer itself, it was stated that the fair value of the land is `22,500/-. 11. The Government Pleader pointed out that the Revision Petitions filed by the petitioner before the Revisional Authorities were examined with reference to the records of auction sale. The petitioner was given opportunity of hearing and the principles of natural justice were complied with. The authority for fixing the market value for auction sale in revenue recovery case is Tahsildar. Village Officer is not competent to fix market value. The contentions raised by the petitioner are therefore unsustainable. The Government Pleader further submitted that there was obviously a mistake in the notification of auction and therefore judgment of this Court reported in WP(C) NO. 8513 OF 2015 ``` 9 ``` _**Senthil Kalidas** (supra)_ would not apply. 12. I have heard the counsel for the petitioner and the Government Pleader representing the respondents. 13. The contention of the petitioner is that the Village Officer had fixed the Upset Value as `1,33,840/-, taking into consideration Sale Deeds in respect of identical properties in the same area. There is no illegality or irregularity in fixing the Upset Value, taking into consideration the land value of nearby land. The auction took place on 28.02.2008. The petitioner was the successful bidder and he deposited the amount of `1,60,000/-. 14. The sale of the land was cancelled on 27.04.2009. The cancellation was on the ground that the Upset Value fixed and the consideration for which the land was auctioned is low. The Revisional Authorities before whom the issue was raised also came to a conclusion that the Upset Value is much low in comparison with the market value. WP(C) NO. 8513 OF 2015 ``` 10 ``` 15. It is discernible from Ext.P4 Report submitted by the Village Officer on 24.08.2013 that the Fair Value Register in respect of the area in question showed that the fair value of the property is `22,500/- per Are. When the fair value was `22,500/- per Are and the market value also revolved around the fair value, fixation of an Upset Price as `7,000/- was obviously a mistake. 16. This Court found in _**Senthil Kalidas** (supra)_ that an auction sale under the Revenue Recovery Act can be cancelled only under certain circumstances. This Court held that if a sale being held is vitiated by material irregularity or mistake or fraud in publishing or conducting the auction, then the sale can be cancelled. The notification for auction of the property stated the Off set of price as `1,33,840/-. The said amount was arrived at treating `7,000/- per Are as the value of the property. When the fair value in the area was `22,500/per Are, the respondents could not have fixed Upset Value WP(C) NO. 8513 OF 2015 ``` 11 ``` substantially below the Fair Value. In the circumstances, this Court finds that the orders impugned by the petitioner are legally justifiable. This Court find no reason to interfere in the cancellation of the auction sale, on the grounds urged by the petitioner. The writ petition fails and it is accordingly dismissed. sd/- **N.NAGARESH JUDGE** hmh WP(C) NO. 8513 OF 2015 ``` 12 ``` ## **`APPENDIX OF WP(C) 8513/2015`** ``` PETITIONER EXHIBITS ``` ``` EXT.P1: TRUE COPY OF THE ORDER, K.DIS.3299/08, DT.27/4/2009 PASSED BY THE THIRD RESPONDENT. ``` ``` EXT.P2: TRUE COPY OF THE ORDER IN LR (B)-4- 52024/09 DT.11/6/2012 PASSED BY THE SECOND RESPONDENT. ``` ``` EXT.P3:TRUE COPY OF THE ORDER NO.F/361/10 DT.24/12/2012 PASSED BY THE THIRD RESPONDENT. ``` ``` EXT.P4TRUE COPY OF THE REPORT OF THE FIFTH RESPONDENT, DT.24/8/2013 ENCLOSING THE VALUATION STATEMENT. ``` ``` EXT.P5 ``` ``` TRUE COPY OF THE ORDER IN LR B4-4601/13 DT.12/3/2014 PASSED BY THE SECOND RESPONDENT. ``` ``` EXT.P6TRUE COPY OF THE ORDER IN G.O.(MS) NO.04/2015/RD DT.6/1/2015 PASSED BY THE FIRST RESPONDENT. ``` ``` RESPONDENT’S EXHIBITS NIL ```