Rajan Thomas Kallumgal v. Tahsildar, Devikulam; District Collector, Idukki; Revenue Divisional Officer, Devikulam; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940 WP(C).No.13162 of 2014** ## **PETITIONER:** **RAJAN THOMAS KALLUMGAL HOUSE, PULIMTHANAM.P.O., POTHANICADU, KOTHAMANGALAM.** **BY ADVS. SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS** ## **RESPONDENTS:** - **1 TAHSILDAR, DEVIKULAM, IDUKKI DISTRICT PIN-685001.** - **2 DISTRICT COLLECTOR IDUKKI-685001.** - **3 REVENUE DIVISIONAL OFFICER DEVIKULAM, IDUKKI DISTRICT-685007.** - **4 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY GOVERNMENT PLEADER SRI.MOHAMMED ANZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13162 of 2014** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The writ petitioner seeks to quash Ext.P11 issued by the 2[nd] respondent-District Collector and to direct the respondents to confirm the sale. 2. According to the petitioner, he is a School Teacher. On 23.10.2001, the petitioner purchased 89.65 Ares of land in survey Nos.1303/2002, 1381/2003, 1381/2004, 1383, 1379/3-1 in T.P. No.115 of Mannamkandam village from one A.M.Chacko. In spite of the purchase by the petitioner, the said property was put to auction under the Revenue Recovery Act on 28.02.2003, for alleged dues payable by the seller A.M. Chacko to the Government. The petitioner participated in the auction and offered ₹1,96,000/-. The petitioner's bid was accepted by the respondents. The petitioner paid the entire bid amount within the stipulated time under the Revenue Recovery Act. 3. According to the petitioner, the property is situated **WP(C).No.13162 of 2014** **3** in a very dangerous area where human habitation is not safe. The land is an area which is prone to landsliding. In view of the earlier instances of landsliding, the land in question is not in demand. Consequently, the price of the land is far low. It is due to the peculiar nature of the land that nobody came forward to offer a higher amount and the petitioner's bid for ₹1,96,000/- was accepted. 4. The petitioner had already purchased the property from the aforesaid A.M. Chacko. It is only to save the property that the petitioner again participated in the bid and paid the value of the property to the Government. After paying the price, the petitioner approached the auction officer a number of times and requested to confirm the sale. But, respondents 1 and 2 did not take any steps to confirm the sale on one excuse or the other. The petitioner thereupon filed Ext.P2 representation dated 17.10.2003 before the 1[st] respondent-Tahsildar. The petitioner was assured that the sale will be confirmed soon. **WP(C).No.13162 of 2014** **4** 5. While so, the 1[st] respondent issued Ext.P3 letter dated 26.11.2003 directing the petitioner to collect refund of the amount deposited by him stating that they have no intention to confirm the sale. Aggrieved, the petitioner filed a representation to the RDO seeking to reconsider the decision. Without considering the request of the petitioner, the property was again put for sale. 6. Thereupon, the petitioner approached this Court filing W.P.(C) No.1150/2004. This Court allowed the writ petition and directed the respondents to pass orders regarding confirmation of sale in respect of the property in favour of the petitioner within one month, as per Ext.P6 judgment. In Ext.P6 judgment, this Court has specifically found that mere inadequacy of the price fetched at the sale, would not by itself be a sufficient ground to set aside the sale. 7. The petitioner states that the respondents filed review petition against Ext.P6 judgment. The review petition was, however, dismissed as per Ext.P7 order. Thereafter, the **WP(C).No.13162 of 2014** **5** respondents filed W.A. No.1877/2010. The said writ appeal was disposed of as per Ext.P8 judgment. In Ext.P8 judgment also, this Court found that sale cannot be set aside on the ground of inadequacy of price. 8. Thereafter, the 2[nd] respondent-District Collector issued a notice to the petitioner and held a personal hearing. The petitioner filed objections also. But, without properly considering the contentions of the petitioner and the objections raised by him, the 2[nd] respondent upheld the decision to set aside the sale on the very same ground of inadequacy of price, as per Ext.P11 dated 04.03.2014. The petitioner challenges Ext.P11 order on various grounds. 9. The respondents defended the writ petition filing counter affidavit sworn on behalf of the 2[nd] respondent-District Collector. It has been stated in the counter affidavit that the property was put for sale in public auction and sold on 28.02.2003 to the petitioner for an amount of ₹1,96,000/-. The petitioner was the highest bidder. The petitioner remitted **WP(C).No.13162 of 2014** **6** the bid amount also and completed all other formalities. At this stage, the 3[rd] respondent-RDO found that the purchase price was too low and accordingly decided to set aside the sale. A notice was sent to the petitioner in this regard. 10. According to the respondents, the Government will be suffering huge loss if the auction for the price of ₹1,96,000/- is confirmed. It was for that reason that steps were taken to cancel the sale and the Tahsildar initiated steps to refund the bid amount to the petitioner. According to the respondents, the contention of the petitioner that he had earlier purchased the property in question, is incorrect. If the petitioner has purchased the property knowing about the revenue recovery proceedings initiated against the said property, the conduct of the petitioner is against the provisions of the Revenue Recovery Act and intended to defeat the revenue recovery proceedings. According to the respondents, the requisition submitted by the Excise Commissioner in respect of the dues from A.M. Chacko is for **WP(C).No.13162 of 2014** **7** an amount of ₹1,07,91,586/-. The sale price received is too negligible taking into account the revenue dues to the Government. According to the respondents, the property has not fetched market value. Therefore, the sale was not confirmed. The non-confirmation of the sale is in public interest. The petitioner has an efficacious alternate remedy by way of filing an appeal against Ext.P11. Therefore, this writ petition has to be dismissed relegating the petitioner to the appellate remedy, contended the learned Special Government Pleader. 11. I have considered the pleadings in the case and the arguments raised on either side. The respondents have not found any irregularity in the process of auction. The auction was conducted strictly following the procedure under the Revenue Recovery Act. It is not in dispute that the petitioner's bid for ₹1,96,000/- is the highest bid. Obviously, the said bid amount must be above the upset price. It is evident from Ext.P10 that the petitioner had produced fair **WP(C).No.13162 of 2014** **8** value certificate in respect of the property before the Idukki District Collector. The price quoted by the petitioner is above the fair value. 12. This Court has held in the judgment in _**Subaida Sulaiman v. Hamsa** [1991 (2) KLT 158]_ that a plain reading of the provisions of the Revenue Recovery Act would indicate that a sale can be set aside only on satisfaction of the Collector that there are some material irregularity or mistake or fraud in publishing or conducting the sale, and on account of such material irregularity, or mistake or fraud, the applicant has sustained substantial injury. This Court held that going by Section 53 of the Act, it would not be correct to say that mere inadequacy of the price fetched at the sale by itself would be a sufficient ground to set aside the sale. The Division Bench specifically noted that it cannot be said that the Legislature intended that the Collector can set aside the sale for no reason, or for any irrelevant reason. It is difficult to accept that the Legislature did not intend to prescribe any **WP(C).No.13162 of 2014** **9** guidelines in the matter under the proviso to Section 54. This Court held that reading Sections 53 and 54 together, the picture becomes clear that the Collector can set aside the sale under the proviso to Section 54, only if he has reason to think that the sale ought to be set aside for the reasons mentioned in Section 53. Dehors the reasons mentioned in Section 53, the Collector has no jurisdiction either under Section 53 or under the proviso to Section 54. 13. In the case on hand, the respondents have no case that there is any irregularity in the conduct of auction. All statutory steps were complied with. The auction price quoted by the petitioner was the highest. The said price offered by the petitioner is more than the fair value fixed in respect of the land. In the circumstances, I find no justification on the part of the respondents not to confirm the sale. The auction in question was held in the year 2003. More than 15 years have elapsed. It will be unjust and unnecessary to drive the petitioner to invoke appellate **WP(C).No.13162 of 2014** **10** remedy under the Revenue Recovery Act, when the action of the respondents in not confirming the sale goes clearly against the statute and a Division Bench judgment of this Court. In the circumstances, I allow this writ petition and set aside Ext.P11. The respondents are directed to confirm the sale in question in favour of the petitioner, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **N. NAGARESH, JUDGE** aks/20.02.2019 **WP(C).No.13162 of 2014** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1. TRUE COPY OF THE SALE DEED IN FAVOUR OF THE PETITIONER DATED 23-10-2001.** **P2. TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 17-10-2003.** **P3. TRUE COPY OF THE LETTER DATED 26-11-2003 SENT BY THE 1ST RESPONDENT TO THE PETITIONER.** **P4. TRUE COPY OF THE REPRESENTATION DATED 20-12-2003 FILED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, DEVIKULAM.** **P5.TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT FOR THE AUCTION OF THE PROPERTY ON 26-11-2003.** **P6. TRUE COPY OF THE JUDGMENT IN WPC NO. 1150/2004 DATED 26-11-2007 PASSED BY THIS HON'BLE COURT.** **P7. TRUE COPY OF THE JUDGMENT DATED 28-6-2010 IN R.P. NO. 421/2008 IN WPC NO. 1150/2004 PASSED BY THIS HON'BLE COURT.** **P8. TRUE COPY OF THE JUDGMENT DATED 22-11-13 IN W.A. NO. 1877/2010 IN WPC NO. 1150/2004 PASSED BY THIS HON'BLE COURT.** **P9. TRUE COPY OF THE OBJECTION DATED 6-2-2014 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **P10. TRUE COPY OF THE ADDITIONAL OBJECTION DATED 12-22014 FILED BY THE PETITIONER.** **P11. TRUE COPY OF THE ORDER DATED 4-3-2014 PASSED BY THE 2ND RESPONDENT.**