Kunju Muhammed vs The District Collector
2024 Latest Caselaw 29063 Ker

Kerala High Court

Kunju Muhammed vs The District Collector on 10 October, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

                                          2024:KER:75437




        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        PRESENT

          THE HONOURABLE MR.JUSTICE N.NAGARESH

THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946

                WP(C) NO. 15632 OF 2023

PETITIONER:

         KUNJU MUHAMMED
         AGED 73 YEARS, S/O POCKER,
         KALATHIL HOUSE, THACHINGANADAM P.O
         NEMMINI AMSOM, NEMMINI DESOM,
         PERINTHALMANNA, MALAPPURAM DISTRICT,
         PIN - 679325


         BY ADV K.REEHA KHADER


RESPONDENTS:

    1    THE DISTRICT COLLECTOR,
         MALAPPURAM COLLECTORATE,
         MALAPPURAM, PIN - 676505

    2    DEPUTY COLLECTOR
         REVENUE RECOVERY KERALA STATE FINANCIAL
         ENTERPRISES,4TH &5TH FLOOR
         BSNL BUILDING,KOLUTHUMPADAM
         THRISSUR DISTRICT, PIN - 680022

    3    THE MANAGING DIRECTOR
         KERALA STATE FINANCIAL ENTERPRISES,
         4TH & 5TH FLOOR BSNL BUILDING,
         KOLUTHUMPADAM THRISSUR DISTRICT,
         PIN - 680022
                                              2024:KER:75437
WP(C) No.15632 of 2023
                           2




    4    C.P HASSAINAR
         AGED 67 YEARS
         S/O KUNJU MOHAMMED HAJI
         CHERUKAPPALLI HOUSE, NEMMINI AMSOM,
         NEMMINI DESOM PERINTHALMANNA,
         MALAPPURAM DISTRICT, PIN - 678325

    5    ASHARAFUDHEEN
         AGED 55 YEARS
         S/O MUHAMMED ALI, KOTTEKKODAN(H),
         NARUKKARA AMSOM, ERNAD TALUK,
         MALAPPURAM, PIN - 676123


         BY ADVS.
         U.K.DEVIDAS
         S.K.SREELAKSHMY(K/210/2014)
         SMT. ANIMA M., GOVERNMENT PLEADER
         SRI. SALIL NATRAYANAN K.A.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 10.10.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                 2024:KER:75437
WP(C) No.15632 of 2023
                               3



                          JUDGMENT

Dated this the 10th day of October, 2024

The petitioner was surety to a loan issued by

the 3rd respondent to the 4th respondent. The loan amount

was ₹2,75,000/-. The petitioner had furnished 1.50 Acres of

land in Nenmini Village as security. The petitioner states that

he was of the bona fide belief that the 4th respondent had

repaid the loan amount and interest. During that time, the

petitioner was settled in Tamil Nadu in connection with his

timber business.

2. The petitioner states that the 4th respondent

had committed default in repayment of instalments and the

2nd respondent initiated Revenue Recovery proceedings

against the petitioner. On 08.03.2001, the Special Deputy

Tahsildar(RR), Palakkad assumed possession of the property

of the petitioner and auction was conducted with regard to the 2024:KER:75437

property. The petitioner came to know about the sale only in

March, 2019. The petitioner filed an application under

Section 54 of the Kerala Revenue Recovery Act for setting

the sale since the entire proceedings were conducted without

hearing the petitioner.

3. The 1st respondent resisted the writ petition

filing a counter affidavit. On behalf of the 1st respondent, it is

submitted that the Deputy Collector(RR), KSFE Head Office,

Thrissur issued orders confirming the sale of the property in

Survey Nos.61/1A and 63/3 of Nenmini Village as per

proceedings dated 04.04.2001. But on detailed verification

conducted by the Village Officer, it was found that the correct

Survey Number of 42 Cents of land out of 1 Acre and 50

Cents attached is 63/4 instead of 63/3. On this ground,

further orders in correct Survey No.63/4 has already been

issued with declaration in Form-18A under Section 57(1) by 2024:KER:75437

the Deputy Collector(RR), Kerala State Financial Enterprises

Limited, Thrissur.

4. Necessary changes have already been

made in the Village Office and Sub Registrar Office

concerned in favour of the bidder as the lawful successor

according to the Sale Certificate under Section 56 and

declaration in Form 18A under Section 57(i) of the Revenue

Recovery Act, issued by the Deputy Collector (RR), KSFE

Thrissur, as per Reference No.SDT/TSR/351/98/PKD dated

09.01.2002.

5. The counsel for the 1st respondent further

submitted that the property was mortgaged by the petitioner

for the security of the amount to Sri.C.P. Hassainar in

connection with Loan No.22/96 of KSFE Nilambur Branch.

The action taken by the Special Deputy Tahsildar(RR), KSFE,

Palakkad to conduct the sale of property in public auction on 2024:KER:75437

08.03.2021 after obtaining valuation report from the Village

Officer concerned is in accordance with law. Demand Notice

under Section 7 and Section 34 of the Revenue Recovery Act

was served on the defaulter and mortgagor promptly through

the Village Officer, Nenmini on 10.11.1998 and 14.12.1998

respectively.

6. Form-11 notice under Section 36 of the

Revenue Recovery Act was served to the individual on

10.01.2001 and got published on the notice board of the

Village Office and Grama Panchayat Office on the same day.

No objection was received in this regard. Notice of auction

sale of the property of the mortgagor Sri.Kunju Muhammed

on 08.03.2001 was issued from the Kerala State Financial

Enterprises Limited, Palakkad office on 22.01.2001 and got

served to the individual concerned on 01.02.2001. It was

published on the notice board of Village Office and Grama 2024:KER:75437

Panchayat on the same day.

7. The 3rd respondent entered appearance and

resisted the writ petition. On behalf of the 3 rd respondent, it is

submitted that pursuant to Ext.P3 judgment, the office of the

Collector had passed Ext.P4 order on 21.09.2022. At the

hearing, the petitioner could have let in evidence to show that

he was never served. The Revenue authorities had duly

served notices personally to the petitioner and by registered

post also. Ext.P4 clearly mentions about the service of notice

as mandated by law. It is specifically mentioned that the

petitioner had written his name and affixed his signature.

Hence, the contention that the petitioner was not put on

notice and that he was totally in the dark regarding the sale of

his property, cannot be believed.

8. If as contended by the petitioner, signatures

seen in the notice and acknowledgment were forged, he 2024:KER:75437

could have moved appropriate application before the District

Collector seeking to get the same examined scientifically. The

same was also not done by him. A disputed question of fact is

raised by the petitioner and that too after a period of more

than 22 years. It is something which this Court will not be

justified in probing.

9. I have heard the learned counsel for the

petitioner, the learned Government Pleader representing

respondents 1 and 2, the learned Standing Counsel

representing the 3rd respondent and the learned counsel

appearing for respondents 4 and 5.

10. Going through the pleadings and arguments,

it is seen that the 3rd respondent had advanced an amount of

loan of ₹2,75,000/- to the 4th respondent in the year 1996.

The petitioner furnished 1.50 Acres of land in Nenmini Village

as security. When the 4th respondent failed in repaying the 2024:KER:75437

amount, the 3rd respondent proceeded against the petitioner

and 4th respondent for recovery of the dues. Revenue

Recovery proceedings were initiated. The property of the

petitioner, which was mortgaged as security, was put to sale.

The auction was conducted on 08.03.2001. The

5th respondent purchased the property.

11. In the circumstances, it will be highly

improper for this Court to interfere in the matter after long

lapse of 23 years. The petitioner has a specific case that the

petitioner has not signed any guarantee agreement and the

signature appearing in the documents are not of the

petitioner. The petitioner took up these contentions and

approached this Court in the year 2022 filing W.P.(C)

No.13644/2022. The District Collector, while passing Ext.P4,

has not adverted to this aspect, contends the petitioner.

2024:KER:75437

12. It is to be noted that Form-11 notice was

forwarded to all affected parties and it was pasted in the

Village Office also. The petitioner was in Chennai during all

these times.

In the afore circumstances, I do not find any merit in

the writ petition. The writ petition is therefore dismissed.

Sd/-

N.NAGARESH JUDGE spk 2024:KER:75437

APPENDIX OF WP(C) 15632/2023

PETITIONER EXHIBITS

Exhibit1 TRUE COPY OF THE JUDGMENT IN O.S. NO.

                  101/2020 BEFORE THE MUNSIFF'S COURT,
                  PERINTHALMANNA DATED 23/11/2021

Exhibit2          TRUE COPY    OF   THE   PETITION    DATED
                  22.03.2022

Exhibit3          TRUE   COPY   OF   THE   ORDER   DATED
                  26.04.2022 IN WP ( C ) NO. 13644/2022

Exhibit4          TRUE COPY    OF   THE   ORDER   DATED   ON
                  23.09.2022