W.P.(C) NO. 34118 OF 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **THURSDAY, THE 12TH DAY OF JANUARY 2012/22ND POUSHA 1933** ## **WPC.No. 34118 of 2008 (J) ==================** ## **PETITIONER(S) ==========** **1 JAYANANDAKUMAR KIZHAKKETHIL VEEDU KANJIRAMKULAM NEYYATTINKARA THIRUVANANTHAPURAM.** ## **BY ADV.SRI.B.KRISHNA MANI** ## **RESPONDENT(S) ===========** **1 THE PRINCIPAL SECRETARY DEPARTMENT OF REVENUE GOVT.OF KERALA THIRUVANANTHAPURAM.** ## **2 THE KERALA STATE FINANCIAL ENTERPRISES LTD** **THRISSUR REPRESENTED BY ITS MANAGING DIRECTOR.** ## **3 DEPUTY COLLECTOR (RR)** **KERALA STATE FINANCIAL ENTERPRISES LTD THRISSUR.** **4 THE SPECIAL DEPUTY TAHSILDAR (RR) KERALA STATE FINANCIAL ENTERPRISES LTD REGIONAL OFFICE SILVER JUBILEE BUILDINGS STATUE THIRUVANANTHAPURAM.** **WPC NO.34118/08** **-2-** **5 THE COMMISSIONER FOR LAND REVENUE THIRUVANANTHAPURAM.** **6 DR.MELVIN JOSEPH KINGINI KANJIRAMKULAM P.O. THIRUVANANTHAPURAM.** ## **7 DR.ANU.N.V.,** **DO..DO.....** **8 THE SUB REGISTRAR KANJIRAMKULAM THIRUVANANTHAPURAM.** **BY ADV. SRI.R.S.KALKURA, SC FOR R6 AND R7 SRI.K.S.HARIHARAPUTHRAN,SC,K.S.F.E. LTD SR GOVERNMENT PLEADER SRI.NOBLE MATHEW SRI.M.L.SAJEEVAN, SC, KSFE LTD.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO.34118/08** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF THE NOTICE DT NIL ISSUED BY THE SPECIAL DEPUTY TAHSILDAR (RR).** **EXT.P2: TRUE COPY OF THE COMMUNICATION DT 1.1.2001. EXT.P3: TRUE COPY OF THE COMMUNICATION DT 11.1.2001. EXT.P4: TRUE COPY OF THE COMMUNICATION DT 15.1.2011.** **EXT.P5: TRUE COPY OF THE ORDER DT 22.2.2001 ISSUED BY THE 3RD RESPONDENT.** **EXT.P6: TRUE COPY OF THE JUDGMENT DT 10.4.11 IN OPNO.12813/2001 BEFOR THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.** **EXT.P7: TRUE COPY OF THE REVISION PETITION DT 11.6.2011 FILED BY THE PETITIONER BFORE THE REVENUE COMMISSIONER, THIRUVANANTHAPURAM.** **EXT.P8: TRUE COPY OF THE ORDER DT 19.3.2002 PASSED BY THE COMMISSIONER OF LAND REVENUE.** **EXT.P9: TRUE COPY OF THE REPRESENTATION DT 5.6.02 FILED BY THE PETITIONER BEFORE THE GOVERNMENT** . **EXT.P10: TRUE COPY OF THE JUDGMENT DT 28.3.2002 WPC NO.7999/2004 BEFORE THE HON'BLE HIGH COURT OF KERALA.** **EXT.P11: TRUE COPY OF THE ORDER DT 15.5.2008.** **EXT.P12: TRUE COPY OF THE COMMUNICATION DT 12.2.2008 ALONG WITH A HEARING NTOE RECORDED BY THE DEPUTY SECRETARY, REVENUE DEPARTMENT.** ## **EXTS. OF R7** **EXT.R7(a): TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DT 11.8.98. EXT.R7(b): TRUE COPY OF THE SALE DEED NO.957/98 DT 12.10.98. EXT.R7(c): TRUE COPY OF THE SALE DEED NO.265/99 DT 8.3.99.** **WPC NO.34118/08** **-2-** **EXT.R7(d): TRUE COPY OF THE LETTER OF SANCTION DT 9.7.99 ISSUED BY THE STATE BANK OF INDIA, PATTAM BRANCH, TRIVANDRUM.** **EXT.R7(e): TRUE COPY OF THE COMPLAINT NO.33 OF 2001 BEFORE THE KERALA LOK AYUKTA.** **EXT.R7(f): TRUE COPY OF THE ORDER DT 2.4.2001 DISMISSED THE COMPLAINT FILED BY THE PETITIONER.** **EXT.R7(g): TRUE COPY OF THE RECEIPTS INDICATING DEPOSIT OF THE BID AMOUNTS BY RESPONDENTS 6 AND 7 DT 11.1.2001.** **EXT.R7(h): TRUE COPY OF THE RECEIPTS IDNICATING DEPOSIT OF THE BID AMOUNTS BY RESPONDENTS 6 AND 7 DT 29.1.2001.** **EXT.R7(i): TRUE COPY OF THE CONFIRMATION OF SALE AND THE SALE WAS CONFIRMED IN FAVOUR OF RESPONDENTS 6 AND 7 ON 24.2.2011 AND PROCEEDINGS WITH REGARD TO THE CONFIRMATION OF SALE OF THE 2ND RESPONDENT.** **EXT.R7(j): TRUE COPY OF THE SALE DEED NO.651/01 DT 27.3.2001** **EXT.R7(k): TRUE COPY OF THE REVISION PETITION FILED BEFORE THE REVENUE, COMMISSIONER UNDER THE REVENUE RECOVERY ACT.** **EXT.R7(l): TRUE COPY OF THE ENTIRE PROCEEDINGS IN PURSUANCE OF EXT.P11 REPRESENTATION OF THE STATE GOVERNMENT.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 34118 OF 2008 =====================** ## **Dated this the 12[th] day of January, 2012** ## **J U D G M E N T** Petitioner had subscribed chitties and had also availed of a loan from the respondents. For availing of the prize amount and the loan, he had mortgaged 8.5 Ares of property comprised in Re.Sy.No.218/7 of Kanjiramkulam Village of Neyyattinkara Taluk. After mortgaging the property, petitioner had sold 2¼ cents to the 6[th] respondent during 1998 and 1999 as per Exts.R7(b) and R7(c) sale deeds. 2. Default was committed in the matter of repayments and revenue recovery proceedings were initiated for realising an amount of `5,13,981. In pursuance to the above, Ext.P1 notice was issued proposing to auction the property on 4/12/2000. This was adjourned to 26/12/2000 and to 4/1/2001. In the meanwhile, 1[st] respondent issued Ext.P2 order dated 1/1/2001 staying auction on payment of 40% of the dues on or before 25/1/2001. 3. According to the petitioner, he conveyed the stay order passed by the 1[st] respondent to the 4[th] respondent by telegram send on 4/1/2001 itself and that therefore the auction did not take **WPC No.34118/08** **:2 :** place. However, subsequently petitioner received Ext.P3 dated 11/1/2001 from the 4[th] respondent intimating him that the property was sold on 11/1/2001 for a sum of `9 lakhs. He was also informed that he is free to deposit the whole arrears within 30 days and save the property. Petitioner says that immediately on receipt of Ext.P3 on 12/1/2001, he issued a telegram to the 4[th] respondent requesting to stay further proceedings pursuant to the sale that was conducted. 4. He thereafter received Ext.P4 in which 4[th] respondent informed him that in view of the previous orders passed by the Government allowing him stay and instalment facility, Ext.P2 order lost its efficacy and is not binding. It was also informed that the auction sale was conducted as per the terms and conditions of the Revenue Recovery Act and hence cannot be challenged. Despite the petitioner complaining against Ext.P4 and the sale, by Ext.P5 order dated 22/2/2001, 3[rd] respondent confirmed the sale in favour of respondents 6 and 7. 5. This was challenged before this Court in OP NO.12813/2001 filed by the petitioner and the case was disposed of by Ext.P6 judgment dated 10/4/2001 relegating the petitioner **WPC No.34118/08** **:3 :** to seek remedies available including the one under Section 53 of the Revenue Recovery Act. In pursuance to the above, petitioner filed Ext.P7 revision under Section 83(1) to the Land Revenue Commissioner which was dismissed by Ext.P8. Still aggrieved, he filed Ext.P9 revision under Section 83(2) to the Government. Thereafter he approached this Court by filing WP(C) No. 7994/04, which was disposed of by Ext.P10 judgment directing disposal of Ext.P9 revision. Accordingly, the Government considered his revision and passed Ext.P11 order rejecting Ext.P9. 6. In this writ petition, what is under challenge are Exts.P8 and P11 orders and the petitioner seeks an order for declaring the sale as invalid. 7. Counter affidavit has been filed by respondents 6 and 7, the purchasers of the property and materials have been produced to substantiate their contention that the sale is a validly conducted one. 8. I heard the learned counsel for the petitioner, learned Government Pleader appearing for respondents 1, 3, 4, 5 and 8, standing counsel for the 2[nd] respondent and also the learned counsel for respondents 6 and 7. **WPC No.34118/08** **:4 :** 9. First contention raised by the learned counsel for the petitioner is that sale was scheduled to be held on 4/1/2001. Thereafter, the sale was conducted on 11/1/2001 without issuing any notice as contemplated under Section 49(4) of the Act. Having considered this contention of the learned counsel for the petitioner, I am not inclined to accept the same for the reason that in Ext.R7(e), which is a copy of the complaint No.33/01 filed by the petitioner before the Kerala Lok Ayukta, the petitioner himself has stated otherwise and the relevant averments in the complaint reads thus; _“For this purpose the 1[st] respondent had issued notice NO.SDT/TVM/835/99 and SDT/TVM/837/99 dated 4.1.2001 from his office stating that the auction proposed on 4.1.2001 had been postponed to 11.1.2001 at 11.30 A.M. True copy of the said notice is produced herewith and marked as Exhibit P6. This notice is illegal as the Honourable Minister for Finance had stayed auction proceedings till 22.1.2001 vide Ext.P4 communication.”_ 10. In the light of the said averments, the contention that there was absence of notice under Section 49(4) of the Act is only to be rejected and I do so. 11. Secondly, relying on Section 62 of the Revenue ## **WPC No.34118/08** **:5 :** Recovery Act and the principles laid down by the Apex Court in the judgment in _**Ambati Narasayya v. M.Subba Rao**_ (AIR 1990 SC 119), it was contended that only the required extent of land for realising the dues of the 2[nd] respondent alone should have been sold and that the whole property of the petitioner should not have been sold. It is true that Section 62 of the Revenue Recovery Act provides that the Collector or the authorised officer may sell the whole or any portion of the land of a defaulter in discharge of the arrears of public revenue due on such land. This section further provides that no larger section of the land shall be sold than be sufficient to discharge the arrears with interest thereon and cost of process. In other words, only the required extent of land can be sold for realisation of the arrears from a defaulter. In the context of Order 21 Rule 64 of the C.P.C, which contains a similar provision, the Apex Court has rendered the judgment in _**Ambati Narasayya v. M.Subba Rao**_ (AIR 1990 SC 119) reiterating this very principle. While there can be no quarrel with the principle canvassed by the learned counsel for the petitioner, question will arise whether the said contention has any force in the facts of this case. **WPC No.34118/08** **:6 :** 12. As already seen, recovery proceedings were initiated for realising `5,13,981. Ext.R7(l) is the consolidated note file of the Under Secretary of the Government, Revenue Department. This shows the amount that was due to be recovered and that the Village Officer had valued the property @ `50,000 per Are and the PWD authorities estimated the value of the building at `91,691/-. This therefore shows that the value of the property was assessed at `4,53,191. If that be so, once the valuation has been done as above, taking note of the fact that the recovery proceedings were initiated for realisation of the total sum of `5,13,981, it cannot be said that the respondents were not justified in proceeding against the entire 7.2 Ares and the building therein. Therefore, in the facts of this case, I am unable to hold that there was any violation of either Section 52 or the principles laid down by the Apex Court in the judgments noticed above. 13. It was then contended that the sale was vitiated for fraud and collusion between the official respondents on the one side and respondents 6 and 7 on the other. This contention was raised on the basis that 2¼ cents of the mortgaged property was sold to respondents 6 and 7. It is stated that this sale ought to ## **WPC No.34118/08** **:7 :** have been ignored by the authorities in view of Section 44 of the Revenue Recovery Act. According to the petitioner, without ignoring the sale, proceedings were continued against the remaining extent of 7.20 Ares and the property was purchased by the party respondents themselves. It is stated that sale was conducted in a tailor made manner only to help respondents 6 and 7 to purchase the same. 14. First of all, to appreciate the contentions of fraud and collusion, factual issues will have to be decided which is not possible in a proceedings under Article 226 of the Constitution of India. Secondly, I am not persuaded to think that for not ignoring the sale of 2¼ cents, the respondents have committed any illegality. 15. From the facts pleaded, it is evident that although `4,53,191 was the valuation of the land and building, in the sale conducted the property was sold for `9,00,000. Thus by the sale of the remaining extent held by the petitioner, amount much more than what was due to the 2[nd] respondent has been realised. In such a situation, when the respondents were confident of realising the entire dues from the remaining extent of land held **WPC No.34118/08** **:8 :** by the petitioner, it is perfectly open to them not to proceed under Section 44, which is only an enabling provision. In any case, it is not open to the petitioner, the defaulter and the seller of 2¼ cents to contend that the respondents should have ignored the sale and proceeded against the property sold by him. I do not find any grace in such an argument. 16. Lastly, counsel contended that there is violation of section 54 of the Revenue Recovery Act, which provides the manner in which sale is to be confirmed or set aside by the District Collector. Having gone through the pleadings, I do not find any specific plea in this behalf nor has the District Collector been impleaded in the writ petition as respondent. In such circumstances, I am not willing to entertain the plea and consider the same on merits. In the result, I do not find any substance in the writ petition. 17. Writ petition is dismissed. Petitioner then complained that the excess sale proceeds realised have not been refunded to him. If the excess sale proceeds are available with the official respondents, petitioner is entitled to have it refunded and therefore, there will be a direction ## **WPC No.34118/08** **:9 :** that if any excess amount is available, the same shall be refunded to the petitioner. Order in this behalf shall be passed at any rate within two months of production of a copy of this judgment. **ANTONY DOMINIC, JUDGE** Rp