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
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
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
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
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,
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.
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
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,
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
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
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
(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
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.
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.
