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Kerala High Court
Raghavan.V.P vs Revenue Divisional Officer on 22 May, 2024
1
W.P.(C) No.19079 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(C) NO. 19079 OF 2012
PETITIONER:
RAGHAVAN.V.P., S/O.PARAMESWARAN, VADAKKEDATHU,
ERUMPARAMATTOM P.O, MELUKAVU VILLAGE,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.THOMSTINE K.AUGUSTINE
SRI.M.P.RAJU
SRI.K.C.THOMAS PALA
RESPONDENTS:
1 REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, PALA,
KOTTAYAM DISTRICT - 686 575.
2 TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE,
PALA, KOTTAYAM DISTRICT - 686 575.
3 VILLAGE OFFICER, VILLAGE OFFICE, MELUKAVU
VILLAGE, KOTTAYAM DISTRICT - 686 652.
4 BIJU, S/O.SANTHA KUMARI, AGED 27, RESIDING AT
KALLADAYIL, THALANADU KARA, VADAKKEKARA
VILLAGE, KOTTAYAM DISTRICT - 686 580.
BY ADVS.
SRI.P.C.HARIDAS
SMT.K.M.RESHMI, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
W.P.(C) No.19079 of 2012
"CR"
JUDGMENT
The petitioner has filed this writ petition challenging the proceedings by which his property having an extent of 33 cents in Survey No.403/3 of Block 54 of Melukavu Village, Meenachil Taluk, Kottayam District, was sold in auction under the provisions of the Kerala Revenue Recovery Act, 1968 (for short, the 'Act').
2. It is stated that the petitioner's wife had filed various petitions before the Magistrate Court, Erattupetta and obtained an order of maintenance against the petitioner herein. Since the petitioner did not remit the maintenance as ordered by the Magistrate Court, Erattupetta, distress warrants were issued for the attachment and sale of the petitioner's above-referred property. It is stated that the auction sale was conducted on 28.04.2004 and the 4th respondent herein was the successful bidder for an amount of Rs.36,750/-. It is further alleged that, on the date of the sale, no one was present to participate in the auction and the auction had not taken place. The petitioner, in such circumstances, filed W.P.(C) No.29959 of 2004 challenging the auction sale conducted. This writ petition was admitted by 3 W.P.(C) No.19079 of 2012 an order dated 12.10.2024, produced as Ext.P1 in the writ petition. As regards the prayer for stay made in the said writ petition, this Court ordered that "confirmation of sale, if any, will be subject to the result of the writ petition". Later, it is alleged that the counsel who filed the above writ petition went abroad without entrusting the case files to anyone, on account of which, there was no representation when W.P.(C) No.29954 of 2004 was taken up for final hearing. On account of this, the above writ petition happened to be dismissed for default by a judgment dated 14.12.2006. The petitioner has pointed out that he later deposited the full amount covered by the distress warrants issued by the Magistrate Court, Erattupetta with the Family Court at Ettumanoor as evidenced by Ext.P3 series of orders. The petitioner also obtained Ext.P4 letter from the Family Court, Kottayam, addressed to the 2nd respondent herein, pointing out that since the entire dues have been paid by the petitioner, the distress warrants issued may be returned forthwith. However, even though the petitioner could remit the land tax in 2009, he was not permitted to remit the land tax subsequently. In reply to a complaint in that regard placed before the 2nd respondent, the 2nd respondent has issued Ext.P6 4 W.P.(C) No.19079 of 2012 dated 27.06.2011 informing that the property concerned has already been sold in auction in favour of the 4th respondent herein on 28.04.2004, and the sale was confirmed on 21.4.2007. It is also informed to the petitioner that, mutation with respect to the said property in favour of the 4th respondent is also carried out. The petitioner has also produced the order of confirmation of sale in favour of the 4th respondent herein dated 30.04.2007 as Ext.P7 in the writ petition. In such circumstances, the petitioner has filed the present writ petition challenging Exts.P6 and P7 referred to above.
3. The 1st respondent has filed a counter affidavit in this writ petition, mainly pointing out that the confirmation of the sale effected on 28.04.2004 was delayed only on account of the pendency of W.P.(C) No.29959 of 2004. A counter affidavit has been filed by the 4th respondent also, pointing out that the petitioner is his father, and that the petitioner refused to look after and maintain the 4th respondent and his mother on account of which the petitions were filed before the Magistrate's Court, which ultimately led to the distress warrants, that on the day of the auction sale, altogether four bidders including the 4th respondent were present, that the 4th respondent remitted the 5 W.P.(C) No.19079 of 2012 bid amount after obtaining loans from various sources etc. The 4th respondent has also relied on Ext.R4G, a judgment rendered by the Munsiff's Court, Erattupetta, dismissing a suit filed by the petitioner herein, raising almost all the reliefs that are prayed for in this petition.
4. I have heard the learned counsel appearing for the petitioner, the learned Government Pleader for respondents 1 to 3 and the learned counsel for the 4th respondent herein.
5. The petitioner in this writ petition challenges the auction sale of his properties for the realisation of certain amounts pursuant to the distress warrants issued by the Magistrate Court, Erattupetta. Admittedly, the auction was conducted on 28.04.2004. The 4th respondent was the successful bidder. The entire bid amount has also been remitted by the 4th respondent. However, the confirmation of the sale could not be carried out then and there only on account of the pendency of W.P.(C) No.29959 of 2004 filed by the petitioner. The petitioner admits that he had filed the above writ petition challenging the auction sale carried out on 28.04.2004. The writ petition was admitted and the confirmation of sale was ordered to be subject to the result of the writ petition. However, the 6 W.P.(C) No.19079 of 2012 above writ petition happened to be dismissed for default in December 2006. The petitioner has a case that the counsel who filed the writ petition went abroad without entrusting the case files to anyone and it is only on account of this, that the writ petition happened to be dismissed for default. But in such circumstances, the petitioner ought to have taken steps to get the writ petition restored on the files of this Court and prosecuted the same. But the petitioner did not venture to do that. Instead, it is seen that the petitioner filed O.S.No.203 of 2007 before the Munsiff's Court, Erattupetta. The said suit was filed challenging the very same sale which is the subject matter of this writ petition. The said suit was dismissed for default on 18.09.2008 as seen from Ext.R4F. The petitioner preferred a restoration application, and the suit was restored as evidenced by Ext.R4F order dated 16.10.2008. However, the petitioner did not prosecute the suit any further and on 15.10.2009, the suit was again dismissed as seen from Ext.R4G. The petitioner did not take any steps to get the suit restored. He kept quiet till 10.08.2012, on which date the present writ petition was presented before this Court. In other words, the petitioner has not explained the delay in presenting this writ petition, if at all, 7 W.P.(C) No.19079 of 2012 the same can be explained. Further, in this writ petition, the factum of filing the suit before the civil court with the very same reliefs as prayed for in this writ petition is not disclosed. In K. Jayaram and Others v. Bangalore Development Authority and Others [(2022) 12 SCC 815], the Apex Court while considering a challenge against certain proceedings through a writ petition without disclosing the filing of the suit for the same relief, has observed as follows:
"14. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject- matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations were or are pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law.
15. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law.8 W.P.(C) No.19079 of 2012
Therefore, they are not entitled for the extraordinary, equitable and discretionary relief."
The above principles laid down by the Apex Court applies to the facts and circumstances of the present case also. The petitioner filed a suit in 2007 against the auction sale proceedings before the civil court. Copy of the suit is produced by the 4th respondent as Ext.R4B. The said suit is dismissed as evidenced by Ext.R4G on 15.10.2009. But the filing of the suit or the dismissal thereof is not disclosed in the present writ petition. On that ground alone, this writ petition is only to be dismissed.
6. On the merits of the other contentions raised also, it is noticed that the petitioner challenges the auction sale confirmed on 30.04.2007 only for the reason that he has satisfied the entire dues and the distress warrants are also recalled. The petitioner relies on Ext.P3 series orders issued by the Family Court, Ettumanoor, by which the CMPs pending before it were closed pursuant to the payments effected by the petitioner. However, Ext.P3E is dated 22.05.2007, whereas, the auction sale was confirmed on 30.04.2007 as evidenced by Ext.P7. Altogether there were seven CMPs before the Family Court. All these CMPs have been closed as evidenced by Ext.P3 series, prior to 30.04.2007 except for Ext.P3(c) dated 9 W.P.(C) No.19079 of 2012 22.05.2007. Though the learned counsel for the petitioner pointed out that the payment was made earlier to 30.04.2007 and only the corresponding order was issued thereafter, he has not been able to point out the exact date on which the payment was made. In other words, atleast one warrant was pending on the date of confirmation of the auction sale. Therefore, the confirmation of the auction sale cannot be found fault with on account of that reason also. Again, a reference is also to be made to the provisions of the Act under which the auction sale was carried out. The Act provides for setting aside the auction sale in two circumstances. One is under Section 52 of the Act. Under this provision, any person owning or claiming an interest in immovable property which is sold under the Act has to make an application for setting aside the sale within a period of 30 days' time from the date of sale by making the deposit of five percent of the purchase money along with the public revenue due for which the property was sold. The second situation is under Section 53 of the Act wherein the District Collector, upon an application made before him within 30 days of sale, can set aside the sale on the grounds of some material irregularity or mistake or fraud in publishing or conducting the sale. Thus, 10 W.P.(C) No.19079 of 2012 under the provisions of Sections 52 and 53 of the Act, an application for setting aside the sale is to be made within 30 days time. Admittedly, the petitioner has not filed any such applications within the time granted.
7. In George v. District Collector, Idukki and Others [2014 (2) KHC 688], a Division Bench of this Court had considered an almost identical issue. In that case, after the sale of the defaulter's property, the order by which the public revenue due on land was created, was set aside on 19.03.1998. However, the sale was confirmed on 28.03.1998. The said sale was challenged before this Court pointing out that in view of the subsequent orders, there was no amount due to be recovered by the sale of properties. This Court considering the above issue found as under:
"In the present case neither the owner nor the appellant-writ petitioner brought to the notice of concerned authorities that sale cannot be confirmed in favour of second respondent, as fifth respondent owner was not due any amounts towards sales tax. In the absence of such information to the revenue recovery officer, confirmation of sale cannot be faulted with. In other words, there was no application raising any such objection which would come in the way of confirmation of sale. Therefore, the authority who confirmed the sale was justified in passing confirmation of sale. It is also discernible from records, though this writ petitioner-appellant was careful 11 W.P.(C) No.19079 of 2012 enough to file Original Suit questioning the sale of property by the revenue authorities making revenue authorities as a party on 23.1.1998, we fail to understand why no interim order of any nature was sought in the said proceedings prior to 28.3.1998 confirmation of sale. On the other hand, we are surprised to see, the Original Suit was withdrawn on the ground that there were proceedings under the Revenue Recovery Act seeking setting aside of sale. In the present case, many factual issues have to be looked into whether revenue authorities were aware of the Original Suit filed in January, 1998, whether the revenue authorities were informed by sales tax department that recovery proceedings has to be stopped and whether confirmation was made in spite of knowledge of no assessment order being in existence as on the date of confirmation of sale. None of these facts could be proved or ascertained nor established in a proceeding under Article 226 of the Constitution of India, except for the reasons mentioned under Sections 52 and 53 and in particular, Section 54 of the Kerala Revenue Recovery Act. So far as the present case is concerned, an issue seeking setting aside of sale of property could be done only in accordance with the procedure contemplated under the Revenue Recovery Act. If the sale is to be set aside for various other reasons, and if such applications were not pending, we cannot blame the revenue authorities which confirmed the sale on 28.03.1998."
In the light of the above judgment, the petitioner is not entitled to any relief.
8. It is true that in Chandrasekharan v. State of Kerala [2018 (3) KLT 562], another Division Bench of this Court, considering a situation where the property was bid in 12 W.P.(C) No.19079 of 2012 favour of the Government and treated as bought-in-land under Section 50 of the Act, has ordered the restitution of the property once the demand pursuant to which the auction sale was carried out was set aside, finding as under:
"23. The above view of the Hon'ble Supreme Court, in our view, applies in all four to the factual circumstances in this case. This is because as is indubitable from the sequence of events involved herein the sale was conducted pursuant to an assessment order and when that assessment order stood set aside through Exhibit P1 order of the learned Tribunal, the basis of the sale itself stood extirpated and therefore, that the sale became untenable in law. Obviously, when the basis of the action itself was eroded, we are certain that the State could not have held on to the property contending that there is no legal provision for re-conveyance of bought-in-land. This is why we are certain in our mind that what is required by the State is not really re-conveyance of the bought-in-land but restitution or return of the land to its original owner, the appellant herein, once the assessment order was set aside."
But in the present case, the property sold is not converted into a bought-in-land. Instead, the auction sale was carried out and the sale confirmed in favour of the 3rd party-the 4th respondent, under the provisions of the Act. In other words, the principles laid down in the above judgment may not apply to the facts of the present case.
9. The learned counsel for the petitioner relied on the decision of this Court in Captain v. District Collector [1999 13 W.P.(C) No.19079 of 2012 (2) KLT 547] and would contend that before confirmation of sale, notice ought to have been put on the petitioner, in which event he could have pointed out about the subsequent developments. But that was a case where the question considered was the setting aside of the sale already effected under the Act which required a notice to be issued to the auction purchaser. The learned counsel relying on the judgment of the Calcutta High Court in Smt.Arati Daw v. Pradip Roy Chowdhury and others [AIR 2003 CALCUTTA 218] would contend that the sale ought to be set aside. But in view of the factual position pointed out above, especially the filing of the writ petition before this Court which was later not prosecuted, the presentation of the suit before the civil court which was also not subsequently, pursued, would make it clear that the petitioner is not entitled to any reliefs.
On the whole, I do not find any reason to interfere with the proceedings at Exts.P6 and P7 challenged in this writ petition. Therefore, this writ petition is dismissed.
Sd/-
HARISANKAR V. MENON, JUDGE ln 14 W.P.(C) No.19079 of 2012 APPENDIX OF WP(C) NO.19079/2012 PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 12.10.2004 IN W.P.(C) NO.29959 OF 2004 OF THE HONORABLE HIGH COURT OF KERALA.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.29959 OF 2024 DATED 14.12.2006 OF THE HONORABLE HIGH COURT OF KERALA.
EXHIBIT P3(a) TRUE COPY OF THE ORDER DATED 3.10.2006 IN C.M.P.145 OF 98 IN THE FAMILY COURT, KOTTAYAM.
EXHIBIT P3(b) TRUE COPY OF THE ORDER DATED 6.11.2006 IN C.M.P.337 OF 2000 IN THE FAMILY COURT, KOTTAYAM.
EXHIBIT P3(c) TRUE COPY OF THE ORDER DATED 22.5.2007 IN C.M.P.188 OF 1999 IN THE FAMILY COURT, KOTTAYAM.
EXHIBIT P3(d) TRUE COPY OF THE ORDER DATED 1.12.2006 IN C.M.P.202/2001 IN THE FAMILY COURT, KOTTAYAM.
EXHIBIT P3(e) TRUE COPY OF THE ORDER DATED 15.12.2006 IN C.M.P.311 OF 2002 IN THE FAMILY COURT, KOTTAYAM.
EXHIBIT P3(f) TRUE COPY OF THE ORDER DATED 12.1.2007 IN C.M.P.410 OF 2003 IN THE FAMILY COURT, KOTTAYAM.
EXHIBIT P3(g) TRUE COPY OF THE ORDER DATED 12.1.2007 IN C.M.P.289 OF 2004 IN THE FAMILY COURT, KOTTAYAM EXHIBIT P4 TRUE COPY OF THE NOTICE OF THE FAMILY COURT DATED 26.06.2007 TO THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE TAX RECEIPT C.NO.5210876.
EXHIBIT P6 TRUE COPY OF THE REPLY NOTICE OF THE 2ND RESPONDENT NO.B1/3732/11/LDS.15 W.P.(C) No.19079 of 2012
EXHIBIT P7 TRUE COPY OF THE CONFIRMATION OF THE PROPERTY DATED 30.04.2007 N.B.579/07.
EXHIBIT P8 TRUE COPY OF THE COMPLAINT BEFORE THE DISTRICT COLLECTOR DATED 11.5.2011.
EXHIBIT P9 TRUE COPY OF THE ORDER OF THE LOK ADALAT DATED 13.8.2011.
EXHIBIT P10 TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 31.7.2012 SUBMITTED TO THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R4A TRUE COPY OF THE RECEIPTS EVIDENCING PAYMENT OF RS.36,750/-.
EXHIBIT R4B TRUE COPY OF THE DECLARATION DATED 26.05.2007 UNDER S.57 OF RR ACT.
EXHIBIT R4C TRUE COPY OF THE PLAINT IN O.S.NO.203/07 ON THE FILES OF THE MUNSIFF'S COURT, ERATTUPETTA.
EXHIBIT R4D TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT IN O.S.NO.203/07 ON THE FILES OF THE MUNSIFF'S COURT, ERATTUPETTA.
EXHIBIT R4E TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE STATE AND 2ND RESPONDENT IN O.S.NO.203/07 ON THE FILES OF THE MUNSIFF'S COURT, ERATTUPETTA.
EXHIBIT R4F TRUE COPY OF THE ORDER DATED 16.10.2008 IN O.S.NO.203/07 ON THE FILES OF THE MUNSIFF'S COURT, ERATTUPETTA.
EXHIBIT R4G TRUE COPY OF THE JUDGMENT DATED 15.10.2009 IN O.S.NO.203/07 ON THE FILES OF THE MUNSIFF'S COURT, ERATTUPETTA.
EXHIBIT R4H TRUE COPY OF THE REGISTERED SALE CERTIFICATE EXHIBIT R4I TRUE COPY OF THE TAX RECEIPT DATED 05.04.2011.