WP(C) Nos. 11618 of 2010 & 464 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** **WP(C) NO. 11618 OF 2010** ## **PETITIONER:** T.D.MANI AGED 47 YEARS, S/O.(LATE) DAMODHARAN (LATE), THACHAMPARAMBIL HOUSE, POOCHAKKAL P.O., CHERTHALA,ALAPPUZHA DISTRICT. BY ADV SRI.M.G.KARTHIKEYAN ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY SECRETARY (REVENUE) GOVT.SECRETARIAT, GOVT. OF KERALA, THIRUVANANTHAPURAM. - 2 THE COMMISSIONR OF LAND REVENUE, THIRUVANANTHAPURAM. - 3 THE DISTRICT COLLECTOR,ALAPPUZHA. - 4 THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA - 5 THE TAHSILDAR, CHERTHALA. - 6 C.SACHIDHANANDHAN, CHARANGATTU HOUSE : DIED CHERTHALA P.O.,ALAPPUZHA DISTRICT. : ADDL.R7 TO R9 7 C.S.RISHI, S/O.SACHIDANANDAN.C. CHARANGATTU HOUSE, CHERTHALA, ALAPPUZHA DISTRICT. C.S.NISHANTH,S/O.SACHIDANANDAN.C. 8 CHARANGATTU HOUSE, CHERTHALA, ALAPPUZHA DISTRICT. 9 K.S.SHEELA, W/O.SACHIDANANDAN.C. CHARANGATTU HOUSE, CHERTHALA, ALAPPUZHA DISTRICT. IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DEECASED 6TH RESPONDENT AS PER ORDER DT.2.4.2014 IN I.A.4849/14 BY ADV SRI.G.SREEKUMAR CHELUR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2022, ALONG WITH WP(C).464/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.11618/2010 & 464/2010 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** ## **WP(C) NO. 464 OF 2010** ## **PETITIONER:** 1 C.SACHIDANANDAN AGED 60 YEARS, S/O.C.V.CHIDAMBARAN, CHARANKATTU BUNGLOW, CHERTHALA, ALAPPUZHA DISTRICT. (DIED) ADDITIONAL PETITIONERS 2 C.S.RISHI S/O.SACHIDANANDAN, RESIDING AT CHARANKATTU BUNGLOW, CHERTHALA, ALAPPUZHA. 3 C.S.NISHANTH S/O.SACHIDANANDAN, RESIDING AT CHARANKATTU BUNGLOW, CHERTHALA, ALAPPUZHA. 4 K.S.SHEELA W/O.SACHIDANANDAN, RESIDING AT CHARANKATTU BUNGLOW, CHERTHALA, ALAPPUZHA. IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED WRIT PETITIONER AS PER ORDER DATED 21.1.2014 IN I.A.NO.593/14 BY ADVS. SRI.LEEJOY MATHEW.V. SMT.M.G.TINU TREASA ## **RESPONDENTS:** 1 T.D.MANI S/O.T.K.DAMODARAN, THACHAPARAMBIL, POOCHAKKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. 2 PRAKASAN S/O.LATE T.K.DAMODARAN THACHAMPARAMBIL, POOCHAKKAL P.O., WP(C) No.11618/2010 & 464/2010 3 CHERTHALA, ALAPPUZHA DISTRICT. - 3 THE COMMISSIONER OF LAND REVENUE THIRUVANANTHAPURAM. - 4 THE REVENUE DIVISIONAL OFFICER CHERTHALA, ALAPPUZHA DISTRICT. - 5 THE TAHSILDAR,CHERTHALA ALAPPUZHA DISTRICT. - 6 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM. BY ADV SRI.NIREESH MATHEW SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.G.SREEKUMAR (CHELUR) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2022, ALONG WITH WP(C).11618/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.11618/2010 & 464/2010 4 ## **JUDGMENT** This order of mine shall dispose of two Writ Petitions, WP(C) No.464 of 2010 on behalf of the legal heirs of C.Sachidanandan, challenging Ext.P6 order dated 01.12.2009 of the Commissioner of Land Revenue dismissing the revision petition dated 02.01.2009 filed under Section 83(1) of the Kerala Revenue Recovery Act, preferred against Ext.P7 order dated 06.12.2008, whereby the Tahsildar ordered sale of the property of all the licencees under the Abkari Act, for claiming the arrears due from the three licensees. In the other Writ Petition bearing No.11618 of 2010, the petitioner - auction purchaser has claimed for issuance of sale certificate and possession of the property put to auction on 13.08.2007. 2. Three persons namely, Sachidanandan, Meena Asokan and T.D.Thampi along with other persons for the period from 19931994 were holders of the liquor licence. There was default of the licence fee. Accordingly, the competent authority under the Abkari Act initiated the proceedings for recovery of the amount by attaching the properties of aforesaid three persons. Against the steps of revenue recovery, the defaulters filed various Writ Petitions before this Court. One of the owners of the property i.e. WP(C) No.11618/2010 & 464/2010 5 Sachidanandan filed a Writ Petition alleging that the property of other two licencees was sufficient to meet the arrears of excise. This Court vide common judgment dated 04.06.2007 ordered to proceed with revenue recovery steps against all the defaulters. The property was put to sale on 13.08.2007. 3. After the confirmation of the sale in favour of the petitioner in W.P©.11618/10, T.D.Prakashan and T.D.Mani, LRs of T.D.Thampi, filed Writ Petition No.6274 of 2008 challenging the order of the Commissioner. This Court vide judgment dated 02.04.2009 remanded the matter. The aforementioned judgment was assailed by an auction purchaser, namely, P.T.Venu in W.A.No.1860 of 2009. The Writ Appeal was allowed vide judgment dated 12.10.2009 and it was held that amongst the owners of the property that if they had paid more than what should have been paid, they are at liberty to settle among themselves i.e., to proceed against co-licensee, but not in the manner and mode. This order is had a binding effect on all. Before confirmation of sale, Sachidanandan preferred two objections under Sections 52 and 53 of the Kerala Revenue Recovery Act. The provisions aforementioned, do not envisage submission of objections together. It has to be either under Sections 52 or 53. They cannot be WP(C) No.11618/2010 & 464/2010 6 permitted to be filed concurrently. For taking objection under Section 52, statutory requirement of deposit of 5% of the amount is sine qua non which was not deposited. The pleadings are bereft as to what happened to the objections, but the petitioner adopted a unique method of approaching the Commissioner by laying challenge to the order dated 06.12.2008 of the Revenue Divisional Officer, which was passed by complying with the order of this Court dated 04.06.2007, by filing a revision Petition bearing No.4-647 of 2009 under the provisions of Section 83(1) of Kerala Revenue Recovery Act. The said revision was dismissed vide order dated 01.12.2009 on the ground that there was no force in the submissions for the reason the sale had already been confirmed and already Division Bench of this Court in W.A.No.1860 of 2009 vide judgment dated 12.10.2009 found that there was no illegality much less material irregularity in the auction in the case preferred by one of the auction purchasers against the judgment dated 02.04.2009 rendered in W.P.(C)No.6274 of 2008. 4. Learned counsel appearing on behalf of the petitioner in WP(C) No.464 of 2010 submitted that the petitioner had approached the Commissioner of land revenue against the notice in Form 16 provided under Section 49(2) of the Kerala Revenue WP(C) No.11618/2010 & 464/2010 7 Recovery Act that in case the amount of abkari dues is recovered from the sale of two properties, the auction with regard to other properties was required to be stopped. Noticing facts and provisions, Commissioner of Land Revenue vide Ext.P3 proceedings No.LR(B)4-14150/2007 dated 31.10.2007 ordered that if the entire amount had been recovered through the auction of the properties of the defaulters other than that of the petitioner, petitioner would be spared from the auction and if the auction has been conducted, the entire dues can be filled with the proceeds from the sale of other defaulters, the sale of the property of the petitioner should not be confirmed. It was submitted that the said order has been ignored by the Commissioner in the impugned order dated 01.12.2009 Ext.P6. The petitioner was remediless as had been running from pillar to post to protect the property. 5. On the other hand, Mr.M.G.Karthikeyan, learned counsel appearing on behalf of the auction purchaser in respect of the property bearing Sy.No.182/7 to the extent of 71.23 cents belonging to Sachidanandan countered the aforementioned argument by submitting that the third party rights of the auction purchaser had been crystalised by confirmation of sale on 06.12.2008 and the amount was deposited within the period WP(C) No.11618/2010 & 464/2010 8 prescribed under Section 49(3) of the Revenue Recovery Act. There was no occasion for the Commissioner to pass an order dated 31.10.2007 in view of the direction of this Court dated 04.06.2007. There is no advertence or reference to the said order by the Commissioner putting hold on the auction of the property belonging to Sachidanandan. The other auction purchasers have already been given sale certificate and possession except the petitioner. The rights of the auction purchaser are crystalised even if the decree is set aside in view of settled law holding that the decree of the court or the revenue recovery proceedings will not come to an end in case the procedure as sought to be adopted by the owner of the property or third party in the manner and mode. 6. In support of the contention, Mr.M.G.Karthikeyan relied upon the judgment of the Supreme Court in _**Janakaraj v. Gurdial Singh and another**_ (AIR 1967 SC 608) and contended that the title of the purchaser related back to the date of sale and not the date of confirmation. It was a case where the ex-parte decree was reversed, but by that time the third party rights in favour of the auction purchaser had accrued. Noticing all the facts the sale in favour of the auction purchaser was confirmed. The aforementioned judgment has been followed by the Supreme Court in the related WP(C) No.11618/2010 & 464/2010 9 judgment in _**Ashwin S.Mehta and another v. Custodian and others** [(2006) 2 SCC 385]_ and urged this Court for dismissal of the Writ Petition No.464 of 2010 and allowing of W.P.(C) No.11618 of 2010 preferred by the auction purchaser. 7. I have heard the counsel for the parties and appraised the paper books. 8. The facts which are not in dispute are that the holder of the licences by six persons under the Abkari Act and Rules for the period 1993-94 and non payment of the dues. Properties of the three licencees, namely, Meena Asokan, T.D.Thampi and Sachidanandan were attached for seeking recovery of the abkari dues. There had been litigations as noticed above not only at the instance of one of the co-owners Sachidanandan, but as well as also on behalf of T.D.Thampi. The grievance of all the three persons was that there were more than three licencees and the department had not initiated steps to recover the amount against the remaining three licencees. It is in those proceedings an order dated ## 04.06.2007 was passed. The same reads thus : _“There would be a direction to the respondents to proceed against all the petitioners in these Writ Petitions simultaneously for bringing the properties of the petitioners to sale for recovery of the defaulted abkari dues. By proceedings, I do not mean issue of notice alone, but actual recovery itself.”_ WP(C) No.11618/2010 & 464/2010 10 9. All attempts were made by the owners to stall the auction proceedings by one way or the other and, to some extent had been successful in filing objections. Order rejecting their objections were also set aside by this Court vide judgment dated 02.04.2009 rendered in Writ Petition No.6274 of 2008. But, before the revenue recovery proceedings could proceed ahead, the auction purchaser Venu had preferred a Writ Appeal, referred to above, which was allowed vide order dated 12.10.2009 and all the parties were relegated to settle the dues amongst each other. It would be expedient to refer the operative part of the order in Writ Appeal dated 12.10.2009 in W.A.No.1860 of 2009. The same reads as under : _“8. In view of the above legal position, we find that none of the contentions raised in Ext.P9 is sustainable in law. Therefore, it is not just or proper for us to remit Ext.P9 on the ground that Annexure A1(5) order was passed in violation of the principles of natural justice. It will be a futile exercise. Same is the case against Ext.P10 also. We have perused Ext.P12 and we find no sustainable grounds raised against Ext.P10 in Ext.P12 revision. So, even assuming that Ext.P10 was passed in violation of principles of natural justice, it is unnecessary for this Court to interfere with the same, invoking its discretionary jurisdiction under Article 226 of the Constitution of India. Further, we notice that the Government heard all parties while considering Ext.P12, the revision filed against Ext.P10 and dismissed the same by Ext.P15. So, any prejudice caused by not hearing the parties while passing Ext.P10 is cured by the hearing given at the time of disposing Ext.P12. Having regard to the above facts of the case, we find that there is no merit in the contention raised on behalf of respondents 15 and 16. No ground was made out to interfere with the order rejecting Ext.P9 or Ext.P10 order confirming the sale or Ext.P15 order dismissing Ext.P12 revision._ _In the result, the Writ Appeal is allowed. The_ WP(C) No.11618/2010 & 464/2010 11 _judgment under appeal is reversed and the Writ Petition is dismissed. If the respondents 15 and 16 feel that they have paid more than what they should have paid or the Government recovered more amounts from them than that was due from them having regard to their contract with other co-licensees, their remedy, if any, is to proceed against other co-licensees.”_ 10. Order dated 31.10.2007 Ext.P3 in W.P.(C) No.464 of 2010 reveals that direction was issued to the revenue authorities to drop the auction proceedings in case of realisation of the outstanding dues from the properties of other two owners colicencees. Such order cannot come to the rescue of the other colicensee in view of the order dated 04.06.2007 (supra). In fact both the counsel representing the parties are ad idem that there was no advertance or reference to the order of the High Court dated 04.06.2007. The law with regard to the proceedings of confirmation of sale and creation of third party in view of paragraph 24 of the judg _ment in_ _**J**_ **anak Raj** cited supra is no longer _as res_ integra and in paragraphs 70 and 71 of the subsequent judg _ment in Ashwin S.Mehta_ 's case (supra), it was held as under. _“24. For the reasons already given and the decisions noticed, it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure_ WP(C) No.11618/2010 & 464/2010 12 _of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment- debtor did not take resort to the provision of Order XXI Rule 89. The decree was for small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so. Lastly, it was contended that the amendment of Section 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction-purchaser at a sale in execution of a decree under Section 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed.”_ _“70. In that view of the matter, evidently, creation of any third party interest is no longer in dispute nor the same is subject to any order of this Court. In any event, ordinarily, a bona fide purchaser for value in an auction sale is treated differently than a decree holder purchasing such properties. In the former event, even if such a decree is set aside, the interest of the bonafide purchaser in an auction sale is saved. (See Nawab Zain – ul – Abdin Khan v. Mohd. Asghar Ali Khan (1887) 15 IA 12). The said decision has been affirmed by this Court Gurjoginder Singh v. Jaswant Kaur (1994) 2 SCC 368._ _71. In Janak Raj v. Gurdial Singh (1967) 2 SCR 77 : AIR 1967 SC 608 this Court confirmed a sale in favour of the appellant therein who was a stranger to the suit being the auction purchaser of the judgment debtor's immovable property in execution of an exparte money decree in terms of Order XXI Rule 92, Civil Procedure Code. Despite the fact that ordinarily a sale can be set aside only under Rules 89, 90 and 91 of Order XXI, it was opined that the Court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application in terms of Rule 92 was made or when such application was made and disallowed and in support thereof Zain-ul-Abdin Khan (1996) 7 SCC 668 and various other decision were referred to.”_ 11. If at all the petitioner in the first Writ Petition has any grievance of adjustment of dues, as per the findings rendered in the judgment dated 12.10.2009 W.A.No.1860 of 2009, is at liberty WP(C) No.11618/2010 & 464/2010 13 to claim settlement in accordance with law, but not in the manner and mode. Things did not stop here. All efforts were made to stall the auction proceedings by filing objections under Sections 52 and 53 of the Kerala Revenue Recovery Act. Sections 52 and Section 53 are akin to the provisions of Order XXI Rule 89 and Order XXI Rule 90 of the Code of Civil Procedure. On plain and simple reading of the provisions, it is evident that both the objections cannot coexist. It has to be independent. It is not proved on record that objection under Section 52 akin to Order XXI Rule 89 was accompanied by 5% of the amount due or equal to the arrears of public revenue. The entire genesis of the petitioner had been of the order dated 31.10.2007 which as noticed above could not have any effect of mandate in view of the order of the High Court dated 04.06.2007. Accordingly, Writ Petition No.464 of 2010 is dismissed. Writ Petition No.11618 of 2010 is allowed. Competent authority under the Revenue Recovery Act is directed to issue sale certificate and give possession to the petitioner in accordance with law, as expeditiously as possible. It is also a fact that the objections filed by the petitioner had been dismissed by the RDO vide order dated 15.10.2007 and that has been sought to be challenged by seeking WP(C) No.11618/2010 & 464/2010 14 amendment through I.A.No.1 of 2021 after a delay of 15 years. The said I.A. is also dismissed as the order was in existence and in the knowledge of the petitioner and cannot be permitted to challenged by amending the Writ Petition in the manner aforementioned. Additional documents taken on record subject to all exceptions. **Sd/-** **AMIT RAWAL JUDGE** csl WP(C) No.11618/2010 & 464/2010 15 ## **APPENDIX OF WP(C) 464/2010** |PETITIONERS'|EXHIBITS| |---|---| |Exhibit.P1|COPY OF THE JUDGMENT IN O.P.NO.20741/1999| ||DATED 24.5.2000| |Exhibit P2|COPY OF THE ORDER DATED 13.10.2006 IN| ||WP(c) NO.36390/2006| |Exhibit P3|COPY OF THE PROCEEDINGS DATED 31.10.2007| ||OF THE 3RD RESPONDENT.| |Exhibit P4|COPY OF THE JUDGMENT DATED 2.4.2009 IN| ||WP(C) NO.6274/2008| |Exhibit P5|COPY OF THE JUDGMENT DATED 12.10.2009 IN| ||W.A.NO.1860/2009| |Exhibit P6|COPY OF THE PROCEEDINGS OF THE 3RD| ||RESPONDENT DATED 1.12.2009| |Exhibit P7|COPY OF THE ORDER NO.B6296/08 DATED| ||6.12.2008 ISSUED BY THE 4TH RESPONDENT.| |Exhibit P8|TRUE COPY OF THE LETTER NO.B3/94/AB.| ||DATED 5.12.2008 SENT BY THE TAHSILDAR TO| ||RDO, ALAPPUZHA| |Exhibit P9|TRUE COPY OF THE PETITION DATED 7.9.2007| ||FILED BY THE PETITIONER BEFORE THE| ||DISTRICT COLLECTOR, ALAPPUZHA| |Exhibit P10|TRUE COPY OF THE PETITION FILED BY THE| ||PETITIONER BEFORE THE DISTRICT COLLECTOR,| ||ALAPPUZHA ON 8.9.2007| |Exhibit P11|TRUE COPY OF THE PETITION DATED| ||10.10.2007 FILED BY THE PETITIONER BEFORE| ||THE DISTRICT COLLECTOR.| |Exhibit P12|COPY OF THE COMMUNICATION ALONG WITH| ||ANNEXED THERETO ISSUED BY THE DEPUTY| ||COMMISSIONER OF EXCISE, ALAPPUZHA| ||COPY OF THE STATEMENT DATED 11.12.2008| WP(C) No.11618/2010 & 464/2010 16 Exhibit P13 FILED BY THE TAHSILDAR, BEFORE THIS COURT IN WP(C) NO.6274/2008 DOCUMENTS PRODUCED AS DIRECTED BY THIS COURT Exhibit P8 COPY OF THE APPLICATION FILED BY THE PETITIOENR ON 7.9.2007 Exhibit P9 COPY OF THE REQUEST LETTER DATED 8.9.2007FILED BY THE PETITIONER Exhibit P10 COPY OF THE REQUEST LETTER DATED 10.10.2007 FILED BY THE PETITIOENR BEFORE THE DISTRICT COLLECTOR EXHIBIT P11 COPY OF THE LETTER VIDE NO.B7-45946/99 DATED 15.10.2007 ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR WP(C) No.11618/2010 & 464/2010 17 ## **APPENDIX OF WP(C) 11618/2010** PETITIONERS' EXHIBITS : Exhibit P1 : COPY OF THE ORDER NO.B.6296/08 DATED 6.12.2008 ISSUED BY THE RTO Exhibit P2 : COPY OF THE PETITION DATED 11.2.2010 SENT TO RESPONDENTS 1 TO 5 RESPONDENTS' EXHIBITS : Exhibit R5(a) : COPY OF THE ORDER ISSUED BY THE LAND REVENUE COMMISSIONER VIDE NO.LR(B4)/14150/07 DATED 31.10.2007 Exhibit R5(b) : COPY OF THE STATEMENT FILED BY DEPUTY COMMISSIONER, EXCISE, ALAPPUZHA IN WP(C) NO.6274/2008. Exhibit R5(c) : COPY OF THE STATEMENT FILED BY THE 5TH RESPONDENT IN WP(C) NO.6274/2008.