Sruthi v. The District Collector, Thrissur & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944`** ## **`WP(C) NO. 5641 OF 2011`** ## **`PETITIONER:`** ``` SRUTHI KODAIKATTIL HOUSE, P.O.AYYANTHOLE, AYYANTHOLE VILLAGE, THRISSUR DISTRICT. BY ADVS. SRI.T.A.SHAJI SRI.P.R.BANERJI ``` ## **`RESPONDENTS:`** ``` 1THE DISTRICT COLLECTOR, THRISSUR-680001 2THE REVENUE DIVISIONAL OFFICER, THRISSUR- 680001. 3THE TAHSILDAR R.R, THRISSUR-680001. 4COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM- 695001. 5STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM- 695001. ``` ``` ADV K G SAROJINI -GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.5641/2011 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.5641 of 2011 ---------------------------------------------Dated this the 17[th] day of November, 2022** ## **JUDGMENT** Petitioner participated in an auction conducted by the 3[rd] respondent which was held on 09.04.2007. The petitioner had bid in auction the properties comprised in Survey No.258/1 of Pallipuram Village, Thrissur Taluk having an extent of 2.52 Acres of land. The petitioner bid the properties for an amount of Rs.15,20,000/-. The petitioner was the highest bidder. She duly remitted an amount of Rs.2,28,000/- on 09.04.2007 being the 15% of the bid amount as provided in Section 49(3) of the Revenue Recovery Act (for short, the RR Act). Thereafter the sale was provisionally confirmed. The balance amount was paid by the petitioner as early as on 07.05.2007. Hence the petitioner remitted the entire purchase money WP(C).No.5641/2011 **3** within the time prescribed. The 3[rd] respondent, as per letter dated 25.06.2007 and 01.03.2008, submitted a proposal for confirmation of sale. Though the entire amount was paid as early as on 07.05.2007, it is the case of the petitioner that the sale certificate has not been issued and the property has not been registered in the name of the petitioner after handing over possession. Under Section 54 of the RR Act, on expiration of 30 days from the date of sale, an order shall be passed confirming the sale. There was no petition to set aside the sale and hence it is submitted that it is the duty of the competent authority to confirm the sale. But it is the case of the petitioner that Ext.P1 order is passed by the 2[nd] respondent setting aside the sale all on a sudden stating mainly that the Solvency Certificate given to the said land is Rs.32,00,000/- and the sale proceed is only Rs.15,20,000/- which is not a justifiable amount. It is also found that the auction bidder is the nearest kith and kin of WP(C).No.5641/2011 **4** the defaulter. The petitioner disputes all these findings. Aggrieved by Ext.P1, the petitioner filed a revision petition before the 4[th] respondent under Section 83 (1) of the RR Act. Ext.P2 is the revision petition. Pending the same, reauction of the property was announced as per Ext.P3 and as per Ext.P4 judgment, this Court directed the 4[th] respondent to consider and pass orders in Ext.P2 revision and the re-auction proceedings were stayed in the meanwhile. Thereafter the petitioner was invited for a hearing by the 4[th] respondent. The petitioner submitted Ext.P5 argument notes. However, the 4[th] respondent, by proceedings dated 03.02.2011, has chosen to disallow the revision petition as per Ext.P6 order. Aggrieved by Exts.P1 and P6, this writ petition is filed. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The counsel for the petitioner submitted that Ext.P1 order is unsustainable in the light of the decision of WP(C).No.5641/2011 **5** this Court in **Subaida Sulaiman v. Hamsa [1992 (2) KLT 158]** . The counsel also submitted that there was no petition to set aside the sale by anybody and Ext.P1 order is passed invoking the powers under the proviso to Section 54 of the RR Act. The counsel further submitted that by invoking the powers under the proviso to Section 54 of the RR Act, a sale can be set aside only if the authority concerned has reason to think that the sale ought to be set aside for the reasons mentioned in Section 53 of the RR Act. It is the submission of the petitioner that the reasons mentioned in Ext.P1 is unsustainable and the District Collector has no jurisdiction either under Section 53 or under the proviso to Section 54 to set aside the sale for the reasons mentioned in Ext.P1. Therefore Ext.P1 is unsustainable and consequently Ext.P6 also is the submission. 4. The Government Pleader, on the other hand, submitted that in **Reetha Wilson v. State of Kerala and** WP(C).No.5641/2011 **6** **Others [2020 (4) KHC 411]** , this Court held that if the authority satisfied that the price fetched by property in the auction is inadequate, said authority is vested with powers to record his reasons and set aside the sale. The said finding of the authority is a factual finding. It is also submitted that there is no statutory requirement to hear a person whose bid was not confirmed. The counsel for the petitioner replied that **Reetha Wilson’s case** (supra) is without considering the dictum laid down in **Subaida Sulaiman’s Case** (supra). The counsel submitted that the same Division Bench which delivered as **Reetha Wilson’s Case** (Supra) took a different stand in the judgment dated 11.03.2020 in W.A. No.352/2020. 5. This Court considered the contentions of the petitioner and the respondents. The contention of the petitioner is that, in the light of the dictum laid down by this Court in **Subaida Sulaiman’s Case** (Supra), the mere irregularity in conducting the sale cannot lead to WP(C).No.5641/2011 **7** setting aside the sale. It is also argued that inadequacy of the price fetched at the sale is not a sufficient ground to set aside the sale. It will be better to extract the relevant portion of the judgment in **Subaida Sulaiman’s Case** (Supra); “ 6. According to learned counsel for the appellant, there are three contingencies, where a sale can be set aside. They are (1) on deposit of the amount under S.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 S.53, and, (3) the Collector has reason to think that the sale ought to be set aside under the proviso to S 54 and in the last case the ingredients contemplated under S 53, namely, material irregularity, mistake or fraud in publishing or conducting the sale, do not have any relevance. We are afraid we are unable to agree with this sweeping contentions. S.52 to 54 constitute a scheme to enable a sale to be set aside for valid and proper grounds. S.52 can be invoked where any person owning or claiming an interest in immovable property sold is ready to deposit the amount contemplated therein. S.53 can be invoked WP(C).No.5641/2011 **8** on the ground of material irregularity or mistake or fraud in publishing or conducting the sale, if such an irregularity or mistake or fraud has been brought to the notice of the Collector by way of an application. Even if a person interested in the property fails to file an application under s.52 or S.53 to set aside the sale, it is open to the Collector to set aside the sale, if he has reason to think that the sale ought to be set aside. Even in a case, where application has been filed, but the grounds urged in the application have not been proved, but some other ground emerges from the records, and that ground is sufficient to set aside the sale, it is open to the Collector to set aside the sale by virtue of the proviso to S.54. The proviso to S.54 does not indicate for what reasons or on what ground or under what circumstances the Collector can set aside the sale. 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 guidelines in the matter of exercise of power conferred on the Collector under the proviso to S.54. Reading S.53 & 54 together, and it appears to us that the provision being a part of the scheme in the matter of setting aside the sale, they have to be read together, the picture becomes clear and the Collector can set aside the sale under the WP(C).No.5641/2011 **9** proviso to S.54, only if he has reason to think that the sale ought to be set aside for the reasons mentioned in S.53. De hors the reasons mentioned in S.53, the Collector has no jurisdiction either under S.53 or under the proviso to S.54. The observations, we have quoted from the decision in Joseph's case, with respect, do not lay down the correct law. 7. There is no contention before us that apart from the mere inadequacy of the price fetched at the sale, the second respondent had established before the Board of Revenue that there was any material irregularity, or mistake or fraud in publishing or conducting the sale. Therefore the second respondent cannot successfully invoke the provisions of Section 53 and the proviso to Section 54 of the Act.” (Underline supplied) 6. It is true that in the above decision, the Division Bench of this Court observed that, a reading of Sections 53 and 54 of the RR Act together, its clear that the provision being a part of the scheme in the matter of setting aside the sale, they have to be read together and the Collector can set aside the sale under the proviso to WP(C).No.5641/2011 **10** Section 54, only if he has reason to think that the sale ought to be set aside for the reasons mentioned in Section 53. This Court also observed that de hors the reasons mentioned in Section 53, the Collector has no jurisdiction either under Section 53 or under the proviso to Section 54. It is also observed that the inadequacy of the price alone is not a reason to set aside the sale. 7. But it is true that a different view is taken by the Division Bench in **Reetha Wilson’s Case** (Supra). It will be better to extract the relevant portion of the ## judgment in **Reetha Wilson’s Case** (Supra); “ 15. It is an admitted fact that there was no application either under S.52 or under S.53 of the Act, 1968 by any interested persons. However, by virtue of the proviso to S.54 of the Act, 1968, if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, the Collector is vested with ample powers after recording in writing the reasons, to set aside the sale. So much so, on a deeper analysis of S.52 and S.53 of the Act it is unequivocal that there is no statutory requirement for providing any hearing to a person whose bid was not confirmed, and further independent of the applications WP(C).No.5641/2011 **11** under the said provisions, the authority is vested with powers under S.54 of the Act 1968 to set aside any sale. Therefore, we are of the considered opinion that the setting aside of the sale by the Revenue Divisional Officer was by virtue of the powers conferred on him under S.54 of the Act, 1968, since the authority was satisfied that the price fetched by the property in the auction was inadequate, which thus, also means irrespective of any kind of material irregularity or mistake, the revenue authority was vested with powers to record his reasons and set aside the sale by virtue of the proviso to S.54 of the Act, 1968, which is a factual. finding. Moreover, we are of the opinion that the authority was justified in doing so having realised that the sale if confirmed would seriously prejudice a farmer, also leading to any irreparable injury and loses.” 8. The counsel for the petitioner submitted that the very same Division Bench which delivered **Reetha Wilson’s Case** (Supra) took a different stand in the judgment dated 11.03.2020 in W.A. No.352/2020. After going through that judgment, I am of the considered opinion that, that was a judgment delivered by the Division Bench based on the facts in that case. It cannot be said that the judgment in W.A.No.352/2020 is contradictory to the dictum laid down in **Reetha Wilson’s** WP(C).No.5641/2011 **12** **Case** (Supra) because no dictum is laid down in the judgment in W.A.No. 352/2020 and the judgment was delivered based on the factual situation in that case. It is true that there is some conflict in the decisions in **Reetha Wilson’s Case** and **Subaida Sulaiman’s Case** _**.**_ But, since these two judgments are delivered by a Division Bench, proprietary disallow this court to make any observation about the same. 9. According to me, the point can be considered in a different angle. A perusal of Ext.P1 will show that the 2[nd] respondent passed such an order based on the report of the 3[rd] respondent. The main facts reported by the 2[nd] respondent in his report is extracted in Ext.P1 itself and the same is extracted hereunder; - “ 1. That it is not known to him that publication of auction was not completed as contemplated under section 49 of the RR Act. Therefore, the sale is not in order. 2. The Solvency Certificate given to the said land is Rs.32,00,000/- and the sale proceed is only Rs. 15,20,000/- which is not all a justifiable amount WP(C).No.5641/2011 **13** fetched. There is a vast difference between the two amounts determined. 3. The auction bidder is the nearest kith and kin of the defaulter.” 10. Based on the same, the 2[nd] respondent observed that the sale is not conducted as per the provisions of the RR Act. The 2[nd] respondent also ordered re-auction. Sections 52, 53 and 54 of the RR Act are extracted here; “52. Application to set aside sale of immovable property on deposit.-(1) Any person owning or claiming an interest in immovable property sold under this Act may, at any time within thirty days from the date of the sale, deposit in the treasury of the taluk in which the immovable property is situate or if there be no treasury in the taluk, in the nearest treasury- a) a sum equal to five per cent of the purchase money; and b) a sum equal to the arrears of public revenue due on land for which the immovable property was sold together with interest thereon and cost of process,and may apply to the Collector to set aside the sale. (2) If such deposit and application are made within thirty days from the date of the sale, the Collector shall pass an order setting aside the sale, and shall repay to the purchaser the purchase money so far as it has been deposited, together with the five per cent deposited by the applicant. WP(C).No.5641/2011 **14** Provided that if more persons than one have made deposit and application under this section, the application of the first depositor shall be accepted. (3) If a person applies under section 53 to set aside the sale of immovable property, he shall not, unless he withdrawn such application, be entitled to make an application under this section. 53. Application to set aside sale on ground of material irregularity, mistake, etc.-- (1) At any time within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake or fraud in publishing or conducting it; but, except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake, unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. (2) If the application is allowed, the Collector shall set aside the sale and may direct a fresh sale. 54. Order confirming or setting aside sale .- On the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under section 52 or section 53 or if any such application has been made and rejected, the Collector shall make an order confirming the sale: Provided that if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale.” 11. As per the proviso to Section 54, if the Collector WP(C).No.5641/2011 **15** has reason to think that sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reason in writing, set aside the sale. Each case has to be taken based on the facts of that case. In this case the 3[rd] respondent reported to the 2[nd] respondent that, it is not known to him that publication of auction was not completed as contemplated under Section 49 of the RR Act and therefore, the sale is not in order. It is also reported by the 3[rd] respondent to the 2[nd] respondent that, the solvency certificate given to the said land is for Rs.32,00,000/- and the sale proceed is only Rs.15,20,000/-, which is not at all a justifiable amount fetched. It is also reported that, there is a vast difference between the two amounts determined. It is also reported by the 3[rd] respondent to the 2[nd] respondent that the auction bidder is the nearest kith and kin of the defaulter. WP(C).No.5641/2011 **16** Based on these grounds the 2[nd] respondent set aside the sale invoking the powers under the proviso to Section 54 of the RR Act. 12. After going through Ext.P1 order and the order passed by the 4[th] respondent as evident by Ext.P6, I am of the considered opinion that there is nothing to interfere with those orders invoking the powers under Article 226 of the Constitution of India. There is no merit in this writ petition and hence it is dismissed. Sd/- **P.V.KUNHIKRISHNAN** JV/LU **JUDGE** WP(C).No.5641/2011 **17** ## **APPENDIX** PETITIONERS EXTS: EXT P1: COPY OF THE ORDER NO.B1-5112/08/08 DTD 16.8.2010 EXT P2: COPY OF REVISION DTD 10.11.2010 SUBMITTED BY THE PETITIONER BEFORE R4 EXT P3: COPY OF THE NOTICE DTD 22.10.2010 ISSUED BY R3. EXT P4: COPY OF JUDGMENT DTD 24.11.2010 IN WP© NO.34269/10 OF THIS COURT EXT P5: COPY OF THE ARGUMENT NOTE DTD 5.1.2011 SUBMITTED BY THE PETITIONER EXT P6: COPY OF THE PROCEEDINGS DTD 3.2.2011 ISSUED BY R4. ## RESPONDENTS EXTS: NIL ## _TRUE COPY_ ## P.A.TO JUDGE