Sujir Dinesh Nayak and others v. District Collector, Kollam and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 34242 of 2008(B) -------------------------- ## PETITIONER(S): - --------------- 1. SUJIR DINESH NAYAK, - S/O. LATE SUJIR KESAV NAYAK,AGED 56 YEARS, - KASTHOORI BUILDING, MUMBAI-400020 2. SUJIR ANANTH NAYAK, S/O.LATE SUJIR KESAV NAYAK, AGED 48 YEARS,KASTHOORI BUILDING, MUMBAI - 400020 3. SUJIR SAROJINI NAYAK, W/O.LATE SUJIR KESAV NAYAK, AGED 75 YEARS,KASTHOORI BUILDING, MUMBAI-400020. 4. SUJIR SURESH NAYAK, S/O.LATE SUJIR KESAV NAYAK, AGED 56 YEARS, KASTHOORI BUILDING MUMBAI - 400020. (ALL THE PETITIONERS ARE REPRESENTED BY THEIR CONSTITUTED POWER OF ATTORNEY, N.RAMANKUTTY NAIR, AGED 56, S/O. NARAYANAN NAIR, SHYLAM, NO.30, ARADHANA NAGAR, KOLLAM-19) BY ADV. SRI.T.M.CHANDRAN - SRI.S.SUJITH - SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY ## RESPONDENT(S): - --------------- 1. THE DISTRICT COLLECTOR, KOLLAM. 2. THE REVENUE DIVISIONAL OFFICER, KOLLAM. 3. THE TAHSILDAR (R.R),KOLLAM. 4. VINOD,S/O.UNNIKRISHNAN, - KULANGARA HOUSE, ASRAMAM, KOLLAM. (..2) WP(C).34242/08 -2- 5. GEETHANJALI PAI,SUJIR VILLA, MUNDAKKAL, KOLLAM NOW STAYING AT 18 FORDS ROAD, RANDOLDH NEW JERSEY - 07869,U.S.A.REP.BY HER POWER OF ATTORNEY P.K.GOPALAKRISHNA PILLAI, PULIMOOTTU PUTHENVEEDU, KANNIMEL CHERRY, KILIKOLLUR, KOLLAM. ADV. SRI.S.ABDUL RAZZAK FOR R4 SRI.VIPIN MOHAN FOR R4 GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2009, THE COURT ON 23/02/2010 DELIVERED THE FOLLOWING: WP(C).34242/08 ## APPENDIX ## PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF APPLICATION DT.24.10.2006 FILED BEFORE THE R1 EXT.P2:- TRUE COPY OF NOTICE DT.25.6.07 ISSUED BY R1 EXT.P3:- TRUE COPY OF JUDGMENT DT.7.8.08 IN WP(C).21684/08 OF THIS COURT EXT.P4:- TRUE COPY OF LETTER DT.11.11.08 EXT.P5:- TRUE COPY OF ORDER DT.21.10.08 PASSED BY R1 EXT.P6:- TRUE COPY OF CONFIRMATION ORDER DT.13.12.09 PASSED BY R2 ## RESPONDENT'S EXHIBITS:NIL _OKB_ //TRUE COPY// P.A. TO JUDGE W.P.C.34242/08 ## ORDER ON I.A.12240 OF 2009 IN W.P(C). 34242OF 2008 DISMISSED. SD/- C.K. ABDUL REHIM, JUDGE. 23.2.2010 _okb_ /True copy/ P.A. to Judge ## **C.K.ABDUL REHIM, J.** **-----------------------------W.P.(C).No.34242 OF 2008** **------------------------------** ## **Dated this the 23[rd] day of February, 2010** ## **J U D G M E N T ----------------------** 1. Auction sale conducted on 4.10.2006 with respect to immovable property having an extent of 5.22 Ares comprised in Sy.No:6 in Block No.58 of Kollam East village in a proceedings initiated under the Kerala Revenue Recovery Act, which was sought to be set aside under Section 53 of the said Act, is the subject matter of this writ petition. The revenue recovery proceedings was initiated against a firm, M/s. Sujir Ganesh Naik & Co., Kollam, for realisation of an amount of Rs.2,26,15,742/- and Rs.17,15,988/-, being arrears of sales tax and gratuity dues defaulted by the said firm. The 4[th] respondent herein is the auction purchaser in favour of whom sale of the above said property was confirmed. Petitioners 1 to 4 herein are the legal heirs of one Sri.Sujir Kesav Naik, who was one of the partners of the defaulter firm. According to the petitioners, Sri.Sujir Kesav Naik filed Ext.P1 application seeking to set aside the sale, through his power of attorney holder, who is none other than the 4[th] petitioner herein (son of _W.P.(C).34242/2008-B_ 2 late Sri.Sujir Kesav Naik). Ext.P1 application is dated 24.10.2006. Ext.P7 postal receipt is produced in order to prove that Ext.P1 was sent by registered post to the 1[st] respondent, on 27.10.2006. From Ext.P2 notice of hearing issued by the 1[st] respondent in the name of one Sri.N. Ramankutty Nair it is revealed that a subsequent power of attorney of Sri.Sujir Kesav Naik was produced before the 1[st] respondent and Sri.N. Ramankutty Nair claimed that he is the duly authorised power of attorney holder of Sri.Sujir Kesav Naik. It is an admitted case that a hearing was conducted on Ext.P1 application by the 1[st] respondent on 31.8.2007, on which date the matter was argued by a counsel appeared on behalf of Sri.N. Ramankutty Nair. Since no orders was issued on Ext.P1, the petitioners herein approached this court in WP(C).No.21684/2008, represented through the very same power of attorney holder, Sri.Ramankutty Nair. In Ext.P3 judgment this court directed the 1[st] respondent to pass orders on Ext.P1 petition within three weeks, if no orders had already been issued. If order has already been issued, the 1[st] respondent was directed to serve a copy of the same to the petitioners. Ext.P5 order dt.21.10.2008 was issued in compliance with Ext.P3 judgment. According to _W.P.(C).34242/2008-B_ 3 the petitioner the said order was served on the power of attorney holder by the 1[st] respondent, on 11.11.2008, when he had approached the 1[st] respondent. Through Ext.P5 order, the application to set aside sale (Ext.P1) was rejected. It is stated in the writ petition that in the meanwhile the petitioners came to know that the 2[nd] respondent had confirmed the sale through Ext.P6 proceedings as early as on 13.12.2006. Hence the petitioner is challenging Ext.P5 and P6 and also seeks direction for a reconsideration of Ext.P1 application. 2. From the counter affidavits of respondents 1 to 3 and the 4[th] respondent, it is revealed that, subsequent to the sale conducted on 4.10.2006 the 2[nd] respondent had confirmed the sale under Section 54 on 13.12.2006 as per Ext.P6 proceedings. Thereafter proclamation under Section 57(1) for the purpose of issuing sales certificate was made on 19.12.2006 and since no objection was received sale certificate as contemplated under Section 56(1) was issued on 11.1.2007. It is noticed that the sale was conducted for an amount of Rs.19,00,100/- and the sale certificate was executed in the stamp paper worth Rs.1,61,510/-. Ext.R4(b) and R4(c) are the copies of the proclamation and sale certificate issued in this regard. It is also _W.P.(C).34242/2008-B_ 4 stated that possession of the property was handed over to the 4[th] respondent pursuant to the above said proceedings and that the 4[th] respondent is enjoying the property under his possession. 3. Sri.S.A.Razzak, learned counsel for the 4[th] respondent vehemently contended that the writ petition is not maintainable in view of availability of effective alternate remedy provided under the statute. The impugned order Ext.P5 is a proceedings by which a petition to set aside sale of immovable property, filed under Section 53 of the Act, was rejected. Going by Section 83(1) & (2) of the Kerala Revenue Recovery Act it is noticed that the petitioner has got an effective remedy of revision against such order before the Commissioner of Land Revenue and a further revision therefrom to the State Government. Hence it is contended that the writ petition is not maintainable. 4. Sri.T.M.Chandran, learned counsel for the petitioner raised strenuous contentions before me to substantiate that, availability of alternate remedy is not an absolute bar for considering correctness of Ext.P5, especially because Ext.P1 application was not disposed on merits and the alleged _W.P.(C).34242/2008-B_ 5 illegalities and irregularities which had vitiated the auction sale, has not been looked into by the 1[st] respondent. It is contended that rejection of Ext.P1 application had resulted in infringement of fundamental rights of the petitioner and therefore sustainability of Ext.P5 order can be looked into in a writ petition filed under Article 226. It was also contended that there is clear violation of natural justice in issuing Ext.P5 order, to the extent that, the order was issued not by a District Collector who heard the matter. In support of the above contentions Sri.T.M. Chandran had drawn my attention to the decisions of the Hon'ble Supreme Court in **Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others ((1998) 8 SCC 1)** and the decision of this court in **Thressiamma v. Union of India (1999 (2) KLT 683)** . 5. At the first instance I may consider the grounds raised regarding violation of natural justice. It is the admitted case by both sides that, a hearing was conducted on 31.8.2007 before the 1[st] respondent and counsel appearing on behalf of the power of attorney holder of the applicant had argued the matter. Contention of the petitioner is that Ext.P5 was issued after a period of more than one year on 21.10.2008 by a District _W.P.(C).34242/2008-B_ 6 Collector who took charge later. Hence it is contended that there is clear violation of the principle that “he who decide must hear and he who hear must decide”. But Sri.Razzak has pointed out a Full Bench decision of this court in **Sudheer v. Susheela (2009 (4) KLT 29)** in which it is clearly held that such a principle does not apply to statutory appeals and revisions before the Government, because such decisions are taken in accordance with 'Rules of business' under which the Government is functioning. Considering the above dictum I am not much impressed upon the argument of the petitioner that there is violation of natural justice which had caused prejudice to the petitioner and such violation is a ground which warrants interference of this court under Article 226, inspite of availability of effective alternate remedy, which the petitioner had failed to avail. 6. However, Sri.T.M. Chandran had drawn my attention to the contents of Ext.P5, and emphasized his arguments that, the 1[st] respondent had totally failed to advert to the contention in Ext.P1 and that the rejection is made on pure technicalities, which according to him is totally unsustainable. On a perusal of Ext.P5 it is noticed that the 1[st] respondent had rejected Ext.P1 _W.P.(C).34242/2008-B_ 7 mainly on the ground that the application was filed only by one among the partners of the defaulter firm. It is stated that one among the two partners of the firm had expired as early as on 9.3.2006 and therefore the partnership had ceased to exist. It is alleged in Ext.P5 that the remaining partner had executed power of attorney without knowledge of the legal heir of the deceased partner and therefore the power of attorney could not be accepted. It is also pointed out that the power of attorney executed by late Sri.Sujir Kesav Naik in favour of two persons are only notarized and not registered and that in the second power of attorney there is no mention about cancellation of the first one. Further it is stated that the copy of the partnership deed was not produced. 7. On an analysis the various reasons stated for rejection of Ext.P1, I am not at all impressed. The admitted fact that the applicant in Ext.P1 was one among the partners of the defaulter firm and that he is a co-sharer of the property which is sold in public auction, it could not be said that late Sri.Sujir Kesav Naik is a person not entitled to file a petition seeking to set aside the sale. Further the defects noted regarding the power of attorney, if any existed, at the best it will amount only _W.P.(C).34242/2008-B_ 8 to curable defects, which ought to have been pointed out to the applicant and opportunity for curing such defects could have been afforded with. Having not resorted to such a course, rejection of a statutory application filed under Section 53 is not sustainable. 8. As stated above, considering unsustainability of the reasons mentioned for rejection of the petition filed under Section 53, and considering the fact that no decision on merits has been taken by the 1[st] respondent, there is justification for this court to have interfered with Ext.P5, despite availability of alternate statutory remedy. But it is noticed that the impugned sale had already been confirmed as early as on 13.12.2006 and consequential procedures regarding issue of sale certificate and delivery of possession of the property stands completed long back. 9. In this regard a crucial question arises as to whether the petitioners or their predecessor in interest was vigilant in pursuing the matter before the 1[st] respondent. From Ext.P1 it is evident that the said application was signed only by the 4[th] petitioner herein, on behalf of late Sri.Sujir Kesav Naik. As stated above, from Ext.P7 postal receipt it is evident that the _W.P.(C).34242/2008-B_ 9 said application was sent by registered post on 27.10.2006. But the petition was not accompanied by any power of attorney executed by late Sri.Sujir Kesav Naik in favour of the 4[th] petitioner. It is only after about 8 months Sri. Ramankutty Nair had raised a claim before the 1[st] respondent to the effect that he is the duly authorised power of attorney holder. This fact is evident from the letter under reference (2) mentioned in Ext.P2. It is pertinent to note that there was no prayer put forth along with Ext.P1 application, seeking stay of any further proceedings pursuant to the sale. Nor there is any evidence to the effect that the 1[st] respondent was ever approached with such a request. Ext.P6 is the confirmation of sale issued by the 2[nd] respondent, which is dt. 13.12.2006. According to the petitioners the matter was heard by 1[st] respondent on 31.8.2007, i.e: much after confirmation of sale, subsequent proceedings of proclamation made under Section 57(1), and issuance of sale certificate under Section 56. It is stated that the applicant in Ext.P1, Sri.Sujir Kesav Naik expired on 6.10.2007. The crucial question arises for consideration is as to when the petitioners came to know about Ext.P6, the confirmation of sale. In the reply affidavit dt.14.1.2009 the _W.P.(C).34242/2008-B_ 10 petitioners have admitted that Sri.N. Ramankutty Nair had obtained Ext.P6 order on 5.11.2007. But it is pertinent to note that even thereafter the petitioners have approached this court complaining about non-issuance of orders on Ext.P1 application. The writ petition, WP(C).No.21684/08, copy of which is produced as Ext.R4(d), was seen filed on 17.7.2008, i.e: long after receipt of Ext.P6. It is further noticed that the said writ petition was filed on behalf of the petitioners herein by none other than Sri.N. Ramankutty Nair, as power of attorney holder of the petitioners. But there is clear suppression in that writ petition about passing of any proceedings confirming the sale. Hence it is clear and evident that knowing very well about confirmation of sale and the subsequent proceedings issued, the petitioners ventured to prosecute the matter further on the pretext that they are entitled to get an order on Ext.P1 petition. In the WP(C).No.21684/08, which is the writ petition filed at the first instance, the petitioners have not chosen to challenge Ext.P6 or the further proceedings. On the other hand they attempted to suppress all such further developments, which were within their knowledge. Therefore it is evident that the petitioners have not approached this court at that time with _W.P.(C).34242/2008-B_ 11 clean hands. Further it is evident that they have failed in taking grounds against the confirmation of sale and further proceedings effected thereafter, in the former writ petition. In this regard it is pointed out by Sri.S.A. Razzak, learned counsel for the 4[th] respondent, that the rule of 'res judicata' will apply even for proceedings under Article 226. In support of such contention he has placed reliance on the decision of this court in **Narayanan v. Dhanalakshmi Bank Ltd. (1995 (1) KLT 679)** . 10. From the above mentioned facts and circumstances it is evident that the petitioners as well as their predecessor in interest had miserably failed to challenge the auction sale conducted by invoking appropriate statutory remedies or by vigilantly prosecuting remedies invoked before the 1[st] respondent. Further the petitioners have failed to resort statutory remedies available for assailing Ext.P5 order. Apart from all, with full knowledge of the subsequent developments of confirmation and issuance of sale certificate the petitioners have not cared to seek appropriate relieves against such steps from the 1[st] respondent or from this court at the first instance when a writ petition was filed on the subject matter. _W.P.(C).34242/2008-B_ 12 Suppression of material facts is evident from the documents produced and it is clear that the petitioners were not approaching this court with clean hands. It has come out in evidence that the sale conducted in favour of the 4[th] respondent on 4.10.2006 was confirmed as early as on 13.12.2006 and sale certificate was issued to him on 11.1.2007. The property was delivered to him at that time and he is enjoying the property thereafter. Unless substantial ground for setting aside the sale is established it will be highly prejudicial for the 4[th] respondent to upset all the above factual situations. 11. Under such circumstances eventhough I am convinced that the technicalities upon which Ext.P1 application was rejected are not sustainable, I am not persuaded to interfere with the matter, invoking discretionary jurisdiction vested under Article 226. Accordingly the writ petition fails and the same is dismissed. ## **C.K.ABDUL REHIM, JUDGE.** okb