Shanmugha Gounder and others v. District Collector, Palakkad and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 04TH DAY OF MAY 2021 / 14TH VAISAKHA, 1943** ## **WP(C).No.30924 OF 2016(M)** ## **PETITIONERS:** * **1 SHANMUGHA GOUNDER, S/O VELLAYA GOUNDER, AGED 86 YEARS, KULLARAYANPALAYAM, PAZHANIYARPALAYAM POST-678 555, KOZHINJAMBARA, PALAKKAD. (DIED) 2 BAGHAYALAKSHMI, AGED 75 YEARS, W/O. LATE SHANMUGHA GOUNDER, KULLARAYANPALAYAM, PAZHANIYARPALAYAM POST-678 555, KOZHINJAMBARA, PALAKKAD. 3 VIVEKANDAN S, AGED 54 YEARS S/O. LATE SHANMUGHA GOUNDER ------DO---4 VELLINGIRI S, AGED 47 YEARS S/O. LATE SHANMUGHA GOUNDER, -------DO------(LEGAL HEIRS OF THE DECEASED PETITIONER ARE IMPLEADED AS ADDITIONAL PETITIONERS 2 TO 4 AS PER ORDER DATED 12-02-2018 IN I.A. NO. 2458/2018)** **BY ADVS. SRI.P.C.THOMAS SMT.BLOSSOM MATHEW SRI.ROJO J.THURUTHIPARA** W.P.(C) No.30924/2016 : 2 : ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, COLLECTORATE, PALAKKAD - 678 001.** - **2 THE REVENUE DIVISIONAL OFFICER PALAKKAD -678 001.** - **3 THE TAHASILDAR, REVENUE RECOVERY CHITTOOR, PALAKKAD -678 552.** - **4 THE DEPUTY TAHSILDAR REVENUE RECOVERY, CHITTOOR, PALAKKAD -678 552.** - **5 THE VILLAGE OFFICER KOZHINJAMBARA VILLAGE,PALAKKAD -678 555.** - **6 THE BRANCH MANAGER, INDIAN BANK VADAKARAPATHY BRANCH,PALAKKAD - 678 555.** - **7 THE EXECUTIVE ENGINEER, ELECTRICAL SECTION KERALA STATE ELECTRICITY BOARD,CHITTUR, PALAKKAD -678 552.** - **8 THE BRANCH MANAGER, STATE BANK OF TRAVANCORE KOZHINJAMPARA, PALAKKAD - 678 555.** - **9 THE BRANCH MANAGER, STATE BANK OF TRAVANCORE CHITTUR BRANCH, PALAKKAD -678 552.** - **10 SRI. SUNDARA GOUNDER, SO.VELLAYA GOUNDER KULLARAYANPALAYAM, PAZHANIYARPALAYAM-678555, KOZHINJAMPARA, PALAKKAD.** - **11 DEVI @ NANJUNDESWARY,AGED 49 YEARS D/O. LATE SHANMUGHA GOUNDER, KULLARAYANPALAYAM, PAZHANJIYARPALAYAM POST678 555, KOZHINJAMBRA, PALAKKAD** **(LEGAL HEIR OF THE DECEASED PETITIONER IS IMPLEADED AS ADDITIONAL R11 PER ORDER DATED 12-02-2018 IN I.A. NO. 2458/2018)** W.P.(C) No.30924/2016 : 3 : **R1-5 BY G.P. SMT. DEEPA NARAYANAN R10 BY ADV. SRI.JACOB SEBASTIAN R10 BY ADV. SRI.G.S.REGHUNATH R7 BY ADV. SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BO R6 BY SRI.S.EASWARAN, SC, INDIAN BANK R8-9 BY ADV. SRI.K.JAYESH MOHANKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-05-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.30924/2016 : 4 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.30924 of 2016 ````````````````````````````````````````````````````````````` _Dated this the 4[th] day of May, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ In this writ petition, the 1[st] petitioner, an Agriculturist, challenged Ext.P3(14) notice of demand and Ext.P5 notice of sale of immovable property. He also sought to quash Exts.P1, P2, P13, P14 and P16. 2. During the pendency of the writ petition, the 1[st] petitioner passed away. Petitioners 2 to 4 were thereafter impleaded as additional petitioners. Another legal heirs of the deceased was impleaded as additional 11[th] respondent. 3. The 1[st] petitioner stated that he is the absolute owner of 13.29 Acres of land in Survey Nos.132/2, 133/2, 133/3, 133/4, 133/5, 134/1, 134/2, 134/3 and 134/12 of Kozhinjampara Village of Chittur Taluk, Palakkad. On W.P.(C) No.30924/2016 : 5 : 16.05.2005, the 1[st] petitioner availed an agricultural loan of ₹50,000/- from the 6[th] respondent-Bank. Repayment, which had to be made within one year, was not made. On 07.07.2012, Ext.P1 demand notice was issued to him under the Revenue Recovery Act for an amount of ₹94,390/-. The requisition for the said revenue recovery was made 6 years after the date on which the amount fell due and hence the recovery is bad for limitation, contended the 1[st] petitioner. 4. Later, Ext.P2 demand notice dated 22.05.2014 was served on the 1[st] petitioner by the 4[th] respondent-Deputy Tahsildar (Revenue Recovery) demanding ₹29,833/- towards electricity dues. In Ext.P2, it was stated that the arrears fell due on 01.08.2006. The said demand was also barred by limitation as the demand was made after eight years. The 3[rd] respondent issued further demand notices in respect of the loans taken by the 1[st] petitioner from respondents 8 and 9. 5. Finally, the 2[nd] respondent-Revenue Divisional Officer issued a notice dated 04.08.2014 for sale of the immovable property of the 1[st] petitioner to recover arrears W.P.(C) No.30924/2016 : 6 : due to respondents 6 to 9, which was ₹23,45,962/-. The 1[st] petitioner filed W.P.(C) No.23104/2014 challenging the said notice. In the said writ petition, this Court passed an interim order permitting the 3[rd] respondent to proceed with the sale procedure on condition that confirmation of the sale would be subject to the result of the writ petition. 6. The 3[rd] respondent again issued Ext.P5 notice dated 16.09.2014 intimating the petitioner that auction of petitioner's property would be conducted on 29.09.2014, for recovering an amount of ₹23,75,795/- including cost and interest. However, in the same notice, it was also stated that the revenue assessed is ₹23,75,795/- plus interest. Ext.P5 did not indicate the interest amount due and hence is vague. 7. The 9[th] respondent-Bank, in the meantime, filed OA No.77/2012 before the Debt Recovery Tribunal and the Tribunal granted an _ex-parte_ order. The 1[st] petitioner filed IA No.3484/2012 for setting aside the _ex-parte_ order. The said IA is pending. The 6[th] respondent-Bank filed OS No.35/2014 in the Munsiff's Court, Chittur. The 1[st] petitioner has filed a W.P.(C) No.30924/2016 : 7 : written statement therein. 8. W.P.(C) No.23104/2014 filed by the 1[st] petitioner was disposed of on 08.06.2015 permitting the 1[st] petitioner to raise his objections in the revenue recovery proceedings. The 1[st] petitioner submitted Ext.P8 objection dated 16.07.2015. The 3[rd] respondent-Tahsildar held a hearing on 30.07.2015. However, the 3[rd] respondent passed Ext.P9 order on 06.08.2015 rejecting the arguments of the 1[st] petitioner. 9. The 1[st] petitioner hence filed W.P.(C) No.25023/2015 challenging Ext.P9. This Court, as per Ext.P10 judgment dated 19.08.2015, directed the 1[st] petitioner to move the 1[st] respondent-District Collector under Section 53 of the Revenue Recovery Act. The 1[st] petitioner thereupon filed Ext.P11 appeal dated 24.08.2015. An interim stay order was given by the 1[st] respondent-District Collector initially, against the confirmation of the sale. The Deputy Collector heard the appeal. The 1[st] petitioner was not communicated with the decision in appeal. W.P.(C) No.30924/2016 : 8 : 10. On 27.02.2016, the Village Officer served on the 1[st] petitioner Ext.P12 confirmation of sale of 1[st] petitioner’s immovable property comprised in Re-Survey No.85/2 in Block No.36 of the Kozhinjampara Village. A copy of Ext.P13 proceedings of the RDO confirming the sale was also served on the 1[st] petitioner. The petitioner was expecting an order of the District Collector in the appeal filed by him. On 01.03.2016, when the 1[st] petitioner went to the office of the District Collector, the 1[st] petitioner was informed that the Collector has already rejected the petitioner's appeal on 13.11.2015, as per Ext.P14. The 1[st] petitioner challenged Ext.P14 by filing W.P.(C) No.8175/2016 and this Court set aside Ext.P14 and directed the 1[st] respondent to pass fresh orders. The District Collector, however, rejected the 1[st] petitioner's appeal as per Ext.P16. 11. The learned counsel for the petitioners argued that Ext.P3(13) sale notice dated 04.08.2014 and the subsequent notice dated 16.09.2014 did not give 30 days notice as required under Section 49(2) of the Revenue Recovery Act, W.P.(C) No.30924/2016 : 9 : which is a material irregularity. The learned counsel for the petitioners relied on the judgment of this Court in _**Srinivasan v. Agricultural Income Tax Officer** [1988 (1) KLT SN1 Case No.2]_ to urge that lack of proper notice amounts to material irregularity. When a statute confers power to do an act and lays down the method to exercise that power, the power should be exercised in that manner alone, contended the learned counsel, relying on the judgment in _**Babu Varghese and others v. Bar Council of Kerala and others**_ _[(1999) 3 SCC 422]._ No person can be deprived of his property save by authority of law, argued the counsel, placing reliance on the judgment in _**Prabin Ram Phukan v. State of Assam** [2015 (1) KLT Suppl. 91 (SC)]._ 12. The learned counsel for the petitioners further pointed out that the amount of revenue assessed on the land should be specific. Amount of revenue due on land can only mean amount due to the Government, in view of Section 2(b) of the Revenue Recovery Act. Amounts due to institutions notified under Section 71 cannot be included in Column No.5 W.P.(C) No.30924/2016 : 10 : of Ext.P3(13) and P(5) notices. Similarly, Column No.6 should show the whole amount due and to be recovered. The amount has not been specified. Amounts of interest and cost are also not specified in the notice. 13. Exts.P1 and P2 demand notices are barred by limitation as they were issued more than three years after the date when the amount fell due. The revenue recovery proceedings have been initiated ignoring the law laid down in _**State of Kerala v. Y.R. Kallianikutty** [1999 (2) KLT 146 (SC)]_ and _**Raveendran Nair v. State of Kerala** [2014 (4) KLT 625 (FB)],_ urged the counsel for the petitioners. 14. The learned counsel for the petitioners further argued that since the demand notices were issued under Section 7 of the Revenue Recovery Act, attachment of immovable properties is bad in law. The market value of the property would be above ₹50 lakhs and 4 Acres of land is sold for ₹40 lakhs, which has caused substantial injury to the 1[st] petitioner. For that reason also, the sale is liable to be set aside. W.P.(C) No.30924/2016 : 11 : 15. The 1[st] respondent-District Collector filed counter affidavit. The 1[st] respondent stated that revenue recovery proceedings were initiated on the basis of requisitions made by various requisitioning authorities. In spite of repeated demands, the 1[st] petitioner did not settle the dues. The 1[st] petitioner was deliberately delaying payment and the proceedings. The property has been auctioned on 29.09.2014 and sale was confirmed on 15.02.2016. Sale Certificate was issued on 27.02.2016. 16. The 6[th] respondent opposed the writ petition filing statement. The 6[th] respondent stated that the petitioner has acknowledged the debt on 07.01.2011 as per Ext.R6(a). Therefore, there is no question of limitation and the writ petition is liable to be dismissed. 17. The 10[th] respondent, who is the auction purchaser, filed counter affidavit and additional counter affidavit. The 10[th] respondent pointed out that the remedy of the petitioners against the auction sale of their property is under Section 53 of the Revenue Recovery Act. The writ W.P.(C) No.30924/2016 : 12 : petition has been filed without availing alternate remedy. The 10[th] respondent is a _bona fide_ purchaser under a revenue recovery sale, for valuable consideration. The right of a _bona fide_ purchaser in a revenue recovery sale cannot be affected even if sale is set aside. 18. As regards dues to the KSEB, the 10[th] respondent contended that electricity dues are statutory charge and hence the period of limitation is 12 years. Therefore, the revenue recovery sale was for a liability which was legally due. Furthermore, after Exts.P7 and P8 judgments, the only issue open to challenge is irregularity, if any, in sale. The appellate authority was justified in dismissing the appeal filed by the 1[st] petitioner, contended the 10[th] respondent. 19. I have heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 to 5, the learned Standing Counsel for the 6[th] respondent, learned Standing Counsel for the 7[th] respondent, learned Standing Counsel for respondents 8 and 9 and the learned counsel appearing for the 10[th] respondent. W.P.(C) No.30924/2016 : 13 : 20. The revenue recovery proceedings were initiated at the instance of requisitioning authorities who are scheduled Banks and Officers of the KSEB. The recoveries were sought for five different dues, three to scheduled Banks and two to the KSEB. The arrears fell due on 29.09.2011 (₹21,63,300/-) to SBT, Chittoor; on 30.09.2011 (₹12,312/-) to SBT, Kozhinjampara; on 16.05.2006 (₹94,390/-) to Indian Bank, Vadakarappathy and on 01.08.2006 to the KSEB for ₹75,960/- and ₹29,833/-. The revenue recovery requisitions were sent by the authorities and demand notices were sent to the 1[st] petitioner. Ext.P3(14) would indicate that Revovery Certificate in respect of ₹22,85,577/- due to SBT, Chittoor was dated 01.10.2012, which is within about one year from the date on which arrears fell due. Ext.P3(20) would show that in respect of ₹12,312/- due to SBT, Kozhinjampara, the requisition was issued in 2012 and Demand notice was issued on 07.07.2012, within one year. As far as the amount due to the 6[th] respondent-Branch Manager, Indian Bank, the 6[th] respondent has produced Ext.R6(a) an Acknowledgment W.P.(C) No.30924/2016 : 14 : of Debt-cum-Security dated 07.01.2011 signed by the 1[st] petitioner. Though the 1[st] petitioner questioned the reliability of Ext.R6(a) due to certain overwritings made therein, the 1[st] petitioner has not refuted his signature contained in Ext.R6(a). Hence, this Court do not find any reason to disbelieve that Ext.R6(a) is an acknowledgment of debt made by the 1[st] petitioner. Therefore, the 1[st] petitioner cannot be heard to contend that the revenue recovery proceedings at the instance of Banks are barred by limitation. 21. In so far as the liability towards the KSEB is concerned, Ext.P3(18) demand prior to attachment of land under Section 34 of the Revenue Recovery Act was issued on 24.08.2009 and Ext.P3(19) demand was issued on 22.05.2014. On default of payment of electricity dues, a statutory charge is created and consequently, Article 62 of the Limitation Act, 1963 will apply, as per which the period of limitation is 12 years. Therefore, the petitioners cannot be heard to contend that the revenue recovery proceedings are barred by limitation. W.P.(C) No.30924/2016 : 15 : 22. The further contention of the petitioners is that respondents 1 to 5 have not given 30 days notice of auction sale as required under Section 49(2) of the Revenue Recovery Act. In the appeal preferred by the 1[st] petitioner, the 1[st] respondent-District Collector found that the property of the 1[st] petitioner was put to auction for seven times from 29.03.2012 to 23.07.2014 and no one turned up to purchase the property. On 04.08.2014, the Tahsildar (RR) issued auction notice with auction date 02.09.2014. Thereupon, the 1[st] petitioner submitted an application to the Tahsildar requesting to exclude his residential plot and family temple from being auctioned. Following the request, the auction was adjourned to 29.09.2014 on which date the auction was held and the property was sold. 23. Under the circumstances, it is evident that the 1[st] petitioner had more than 30 days notice of the auction. By making a request to the Tahsildar to exclude his residential plot and family temple, the 1[st] petitioner has acquiesced in the proceedings. Thereafter, the 1[st] petitioner cannot turn W.P.(C) No.30924/2016 : 16 : around and contend that he had no 30 days notice. In the facts of the case, the judgments in _**Srinivasan**_ (supra) and **Babu Varghese** (supra) would not be of any help to the 1[st] petitioner. As the property was auctioned under a statutory process, there is no question of violation of Article 300A and the judgment in _**Prabin Ram Phukan**_ (supra) will not apply. 24. Yet another argument of the petitioners is that the amounts mentioned in the demand notices are not specific and it is a material irregularity. In Ext.P3(13), the amounts due to the KSEB and Banks have been distinctly mentioned. Though in notice portion the amount due is written as ₹23,45,962/- including costs and interest and in the schedule, it is written as ₹23,45,962/- plus interest, this cannot be treated as a material irregularity warranting interference and setting aside of sale already confirmed. 25. The further argument is that the value of the property would exceed ₹50 lakhs and hence the property should not have been sold in auction for ₹40 lakhs. Ext.P16 order would reveal that the property was put to auction seven W.P.(C) No.30924/2016 : 17 : times between 29.03.2012 and 23.07.2014 and there were no takers. Again on 02.09.2014, the auction was fixed and on that day also, there were no bidders to purchase the property. The property was finally auctioned on 29.09.2014. Twenty one bidders participated in the auction on 29.09.2014 and the highest eligible bid was for ₹40 lakhs. In such circumstances, the argument of the petitioners that the property would have fetched more than ₹50 lakhs cannot be accepted. In Ext.P16, the appellate authority has also noted that there is no such requirement under law that landed property should not be sold for value which is less than fair value of the land. For all the facts stated above, this Court do not find any reason to interfere with the revenue recovery proceedings against the petitioners or with the sale of the property. The writ petition therefore fails and consequently, it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/26.04.2021 W.P.(C) No.30924/2016 : 18 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE DATED 07.07.2012 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED 22.05.2014 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE WPC NO.23104/14 EXHIBIT P4 TRUE COPY OF THE COUNTER FILED BY THE 3RD RESPONDENT IN WPC NO.23104/14. EXHIBIT P5 TRUE COPY OF THE SALE NOTICE DATED 16.09.2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT FILED IN OS NO.35/14. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 08.06.2015 IN WPC NO.23104/14. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 16.07.2015 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 06.08.2015 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 19.08.2015 IN WPC NO.25023/15. EXHIBIT P11 TRUE COPY OF THE APPEAL DATED 24.08.2015 FILED BEFORE THE 1ST RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 15.02.2016 OF CONFIRMATION OF THE SALE OF IMMOVABLE PROPERTY ISSUED BY RDO. EXHIBIT P13 TRUE COPY OF THE ANOTHER ORDER DATED 15.02.2016 OF CONFIRMATION OF THE SALE OF IMMOVABLE PROPERTY ISSUED BY RDO.** W.P.(C) No.30924/2016 : 19 : **EXHIBIT P14 TRUE COPY OF THE ORDER/COMMUNICATION DATED 13.11.2015 OF 1ST RESPONDENT, DISMISSING THE APPEAL.** - **EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 04.03.2016 IN WPC NO.8175/2016.** - **EXHIBIT P16 TRUE COPY OF THE ORDER DATED 03.09.2016 PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P17 TRUE COPY OF THE DEATH CERTIFICATE DATED 25-8-2017 REGARDING THE DEATH OF THE PETITIONER ISSUED BY THE GRAMA PANCHAYAT, KOZHINJAMPARA.** - **EXHIBIT P18 TRUE COPY OF THE CERTIFICATE OF RELATIONSHIP DATED 20-09-2017** ## **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R6(a) COPY OF THE LETTER OF ACKNOWLEDGMENT OF LIABILITY DATED 7-1-2011 EXECUTED BY THE PETITIONER.** **EXHIBIT R10(a) TRUE COPY OF THE SALE CERTIFICATE ISSUED TO THIS RESPONDENT ON PAYMENT OF THE AFORESAID AMOUNT OF RS. 40 LAKHS BY THE 2ND RESPONDENT. EXHIBIT R10(b) TRUE COPY OF THE ORDER DATED 3/9/2016 PASSED BY THE 1ST RESPONDENT.**