V. Deepak and Muraleedharan v. Government of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933** ## **WPC.No. 34420 of 2009 (V)** ## **--------------------------------** ## **PETITIONER(S):** ## **-------------------** **1. V. DEEPAK, S/O.V.P. RAVEENDRANATHAN, SRUTHI, VIJAYAKKURISSI POST, MANNARKKAD PALAKKAD.** **2. MURALEEDHARAN, S/O. KESAVAN,** **KAMBAMKOTTIL, HOUSE NO. 3/152, PAYYANEDAM.P.O PIN - 678 583, PAYYANEDAM DESOM, PAYYANEDAM VILLAGE MANNARKKAD TALUK.** ## **BY ADV. SRI.RAJESH VIJAYENDRAN** **RESPONDENT(S): ---------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF CO-OPERATION SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES (GENERAL), MANNARKKAD, PALAKKAD TALUK.** **3. THE KUMARAMPUTHUR SERVICE CO-OPERATIVE BANK LTD. NO. P 373 MANNARKKAD COLLEGE.P.O, PALAKKAD DISTRICT REPRESENTED BY ITS SECRETARY.** ## **4. K.J. GEORGE,KUDILIL HOUSE, CHETTIKAD.P.O, PALLIKKUNNU KUMARAMPUTHUR, MANNARKKAD.** **R1 & R2 BY GOVT. PLEADER SMT.M.G.LISHA R3 BY ADVS. SRI.V.M.KURIAN SRI.K.T.THOMAS SRI.MATHEW B. KURIAN R4 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/01/20112, THE COURT ON 01-02-2012 DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 34420/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE CERTIFICATE OF CONFIRMATION OF SALE ISSUED BY THE 2ND RESPONDENT DATED 02/08/2008.** - **P2: COPY OF THE REGISTERED SALE CERTIFICATE NO.1/5454/08 DATED 04/08/2008 EXECUTED BY 2ND RESPONDENT IN FAVOUR OF THE PETITIONEDR REGISTERED BEFORE THE SUB REGISTRY OFFICE,MANNARKKAD.** - **P3: COPY OF THE SALE DEED NO.1222/2009 DATED 21/02/2009 OF THE MANNARKKAD SUB REGISTRY.** - **P4: COPY OF THE NOTICE DATED 23/03/2009 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P5: COPY OF THE ORDER DATED 10/02/2009 ISSUED BY THE 1ST RESPONDENT.** - **P6: COPY OF THE JUDGMENT DATED 16/07/2009 IN WPC. NO.13766/2009.** - **P7: COPY OF the JUDGMENT DATED 07/08/2009 IN W.A. NO.1751/2009.** - **P8: COPY OF THE OBJECTION DATED 25/09/2009 SUBMITTED BY PETITIONERS BEFORE THE 1ST RESPONDENT.** - **P9: COPY OF THE OBJECTION FILED BY 3RD RESPONDENT SOCIETY DATED 25/09/2009.** - **P10: COPY OF THE ORDER DATED 14/10/2009 PASSED BY THE 1ST RESPONDENT.** - **P11: COPY OF POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 26/11/2009 IN FAVOURT OF THE 2ND PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.34420 of 2009 ---------------------------------------- Dated this the 1[st] day of February 2012 ## **J U D G M E N T** This writ petition is filed by an auction purchaser who purchased an extent of 56 cents of land in auction conducted by the Inspector for Arbitration Execution, Mannarkkad, in relation to an award passed by the second respondent Assistant Registrar of Co-operative Societies under Section 69 of the Kerala Cooperative Societies Act on 12/7/2004. The property having an extent of 56 cents belonging to the 4[th] respondent and mortgaged to the 3[rd] respondent bank was sold for an amount of Rs.5,60,500/-. The 1[st] petitioner deposited the entire amount. It is contended that an application to set aside the sale filed by the 4[th] respondent was rejected on 02/07/2008 and the sale was confirmed by the 2[nd] respondent on 02/08/2008. A sale certificate was registered on 04/08/2008 before the Mannarkkad Sub Registrar by the 2[nd] respondent in favour of the 1[st] petitioner and the 1[st] petitioner took possession of the property. Ext.P1 is the confirmation of sale and Ext.P2 is the registered document. W.P.C.No.34420 of 2009 2 2. The 1[st] petitioner while in enjoyment of the property conveyed the said property in favour of the 2[nd] petitioner as per Ext.P3 sale deed dated 21/02/2009. 3. It is stated that by a further notice dated 23/3/2009, the 1[st] petitioner was informed by the 2[nd] respondent that the sale has been set aside by Government Order dated 10/02/2009, produced in this case as Ext.P5. 4. According to the petitioners, Ext.P5 order has been issued without any notice or information to the petitioners and the matter was challenged by filing W.P.C.No.13766/09. By Ext.P6 judgment, this Hon'ble Court, having set aside the Government Order, directed the Government to re-consider the matter with notice to the petitioner and respondents 3 to 5 in the said case and to pass fresh orders. The 4[th] respondent challenged the matter by filing W.A.No.1751/2009 which was dismissed confirming the order passed by the learned Single Judge, pursuant to which the Government passed Ext.P10 order reiterating what has been stated in Ext.P5. Hence the petitioners challenged Ext.P10 order and to declare the arbitration proceedings and Ext.P1 confirmation of sale not W.P.C.No.34420 of 2009 3 liable to be set aside. It is the case of the petitioners that in so far as the award is still in force and there is no challenge to the award despite the 4[th] respondent having knowledge about the same, a sale conducted in pursuance of the said award is valid under law. The Government Order Ext.P10 proceeds on the basis that copy of the award has not been sent to the 4[th] respondent as provided under Section 85 of the Cooperative Societies Act and therefore while not giving an opportunity to file an appeal, the sale conducted in respect of the said property is bad in law. It is also found that the 1[st] petitioner had assigned the property after Ext.P5 order dated 21/02/2009. The petitioner challenged the order passed by the Assistant Registrar before the Joint Registrar, District Co-operative Society, on 02/08/2008 and since the said appeal was rejected in view of Section 83(2), appeal is filed before the Government. 5. The 4[th] respondent, on the other hand, contended that the award has been passed without notice and he had come to know about the passing of the award only after sale of property. This Court, by an interim order dated 7/6/2011, called upon the 1[st] respondent to make available through the Government W.P.C.No.34420 of 2009 4 Pleader the files leading to Ext.P10 Government Order. On a perusal of the files, I do not find any endorsement regarding notice being served on the 4[th] respondent either before the award or after the award. At any rate, the 4[th] respondent admits that he was served with a notice from the 2[nd] respondent calling upon him to pay the auctioned amount with 5% of the said amount as provided under Rule 83(1). The 4[th] respondent, on the other hand, contended that gross injustice had been done to the 4[th] respondent. The award was passed without notice to him and no notice had been issued even before sale of property. Only after the property was sold in auction and purchased by the 1[st] petitioner that notice was issued. Though this was challenged by him, overlooking his challenge, the sale was confirmed and therefore the appeal was filed before the Government and the Government having taking into consideration the factual circumstances and the illegality in the procedure adopted, have set aside the sale and hence it is argued that this Court should not interfere with the valid decision taken by the Government in the matter exercising the jurisdiction vested in it and there is no scope for any judicial review. W.P.C.No.34420 of 2009 5 6. The learned counsel appearing for the 4[th] respondent also contended that the award has been passed for recovery of a principal loan amount of Rs.25,000/- which was taken by the 4[th] respondent on 16/12/2000 and he, being an agriculturist, was unable to repay the said amount. The total liability as per the award at the time of sale of the property was Rs.61,900/-, for which his 56 cents of property is sold for an amount of Rs.5,60,500/-. The act of the concerned authorities is totally unconscionable and therefore no interference is called for to Ext.P10. 7. On the other hand, the learned counsel for the petitioners relied upon judgment of this Court in **Thankappan v. M.T.M.V.Co-operative Society [1979 KLT 668]** to contend that the period of limitation to challenge the award would run from the date of knowledge of passing of the award and in computing the period of limitation in such case the time for obtaining certified copy of the award is also to be excluded. It is contended that since the award has not been challenged even after the date of knowledge, the consequent sale also could not W.P.C.No.34420 of 2009 6 be challenged. The learned counsel also relied upon the judgment of this Court in **Calicut City Service Co-operative Bank Ltd. v. State of Kerala** [ **2008(3) KLT 1011]** to contend for the position that an appeal under Section 83(1) has to be filed within a period of 60 days from the date of order of the decision appealed against and there is no provision to condone the delay, and that Section 5 of the Limitation Act would not apply. This judgment has been relied upon to contend that though the application to set aside the sale was rejected on 02/08/2008, the appeal was filed before the Government only on 10/10/2008. In fact, the appeal was filed by the 4[th] respondent on 30/08/2008 and when it was found that the said appeal was not maintainable, the appeal was filed before the Government on 10/10/2008, well within the period of limitation as the sale was confirmed on 02/08/2008. 8. The learned counsel appearing for the Bank also supported the petitioners and contended that in so far as the award is not challenged and it had become final, it is not open for the Government to set aside the sale. 7 W.P.C.No.34420 of 2009 9. Having heard the learned counsels appearing for the parties concerned, I am of the view that no interference is called for to Ext.P10 order passed by the Government for the simple reason that an attempt had been made to sell a large extent of 56 cents of property of a farmer for recovering an amount of Rs.69,100/-. Even assuming for the sake of argument that the sale was conducted with notice to the 4[th] respondent, under what circumstances did the sale officers sell 56 cents of land for an amount of Rs.5,60,500/- when the amount to be recovered was only Rs.69,100/-. This approach of the auctioning officer will go to the root of the matter and can be treated as arbitrary, unreasonable and it would shock the conscience of any court. That, by itself, would be enough to refuse interference by this Court in this proceedings. 10. Apart from that, the records do not indicate that any notice was served on the 4[th] respondent before passing the award and even without a copy being supplied to the 4[th] respondent as mandated in Section 85 of the Act it was totally illegal on the part of respondents 2 and 3 in directing to conduct sale of property. There is no record to show that even notice W.P.C.No.34420 of 2009 8 was ordered before conducting the sale. At any rate, the 4[th] respondent was served with notice only after the sale was conducted. This is also illegal and against the very procedure to be adopted in the conduct of sale. 11. Under these circumstances, I do not intend to interfere with the order passed by the Government as Ext.P10. The petitioners can work out their remedies by seeking refund of the amount from respondents 2 and 3. 12. In the above circumstances, the writ petition is dismissed with the direction that in the circumstances, the petitioners are permitted to seek refund of the amount remitted by them before the 2[nd] respondent Bank. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.34420 of 2009 9 W.P.C.No.34420 of 2009 10 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011