Remanded

G.Vasumathy v. State of Kerala

Kerala HC5 Oct 2013WP(C)/12651/2012

Case brief

AI extract

What is this about?

The High Court of Kerala held that a revenue sale is vitiated if notice is not served on a co-owner even if published. The sale of March 11, 2009, was cancelled as no fresh notice was served. The sale of May 28, 2010, was set aside for lack of service to the second petitioner. Orders confirming the sale were quashed.

What did the court decide?

The revenue sale and orders confirming the sale were set aside. The writ petition was disposed of.

G.Vasumathy Vs State of Kerala — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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SATURDAY, THE 5TH DAY OF OCTOBER 2013/13TH ASWINA, 1935

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WP(C).No. 12651 of 2012 (F)

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PETITIONERS :

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G.VASUMATHY THITTAYIL KIZHAKKATHIL, ERAVIPURAM P.O. KOLLAM-690011.

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SANJEEV SOMARAJAN S/O.LATE SOMARAJAN, AGED 54 YEARS THITTAYIL KIZHAKKATHIL, ERAVIPURAM P.O. KOLLAM-690 011.

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BY ADVS.SRI.LEO GEORGE

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SRI.T.T.RAKESH

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RESPONDENTS :

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STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SSECRETARIAT, THIRUVANANTHAPURAM-695 001.

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THE COMMISSIONER OF LAND REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.

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THE DISTRICT COLLECTOR, KOLLAM-691 001.

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THE TAHSILDAR (R.R) COLLECTORATE, KOLLAM-691 001.

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THE COMMERCIAL TAX OFFICER WORKS CONTRACT, KOLLAM-691 001.

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KEETAG TYRE CRAFTS

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VADAKKEVILA KOLLAM REPRESENTED BY ITS PARTNER DHANALAKSHMI KEETAG TYRE CRAFTS, VADAKKEVILA, KOLLAM-691 010.

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ANILKUMAR,LAKSHMI MANDIRAM, VADAKKEVILA, KOLLAM-691 010.

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R BY GOVERNMENT PLEADER SRI.MANOJ P KUNJACHAN

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R6 BY ADV. SRI.A.B.MOHANAKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 12651 of 2012 (F)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE RE-SALE NOTICE PUBLISHED BY THE FOURTH RESPONDENT DATED 12/2/09.

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EXHIBIT P2: TRUE COPY OF THE ORDER ISSUED BY THE COMMERCIAL TAX OFFICER, WORKS CONTRACT, KOLLAM DATED 15/1/2009.

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EXHIBIT P3: TRUE COPY OF THE CHELAN EVIDENCING PAYMENT OF RS.4,88,880/PURSUANT TO EXHIBIT P1 DATED 25/4/2009.

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EXHIBIT P4: TRUE COPY OF THE AMNESTY SCHEME CIRCULATED BY THE COMMISSIONER OF COMMERCIAL TAXES AS PER THE CIRCULAR NO.13/2008 DATED 28/3/08.

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EXHIBIT P5: TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT DATED 6/8/10.

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EXHIBIT P6: TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 10/6/11.

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EXHIBIT P7: TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 8/8/11.

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EXHIBIT P8: TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT DATED 5/5/12.

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RESPONDENTS' EXHIBITS :

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ANNEUXRE R4(a) : A TRUE COPY OF THE NOTICE U/S.49

/TRUE COPY/

P.A TO JUDGE

V.CHITAMBARESH,J

W.P.(C).No.12651 of 2012

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-----------------------------------Dated this the 05^th day of October, 2013

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JUDGMENT

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The revenue sale slated on 11.03.2009 pursuant to Ext.P1 notice did not take place as scheduled. This is because the petitioners deposited a sum of `4,88,880/- under Ext.P3 receipt. The amount denoted 25% of the total amount arrived at under the Amnesty Scheme by Ext.P2 order.

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The sale was adjourned beyond sixty days and it concededly took place on 28.05.2010. But then there was no service of fresh notice as mandated under Section 49(4) of the Kerala Revenue Recovery Act, 1968. The same is mandatory as held in Aboobacker v. State of Kerala 2006 (2) KLT SN 65.

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The petitioners assert that the sale of the property on 28.05.2010 was not preceded by service and publication of notice afresh. Section 49(2) of the Kerala Revenue Recovery Act, 1968 is catogoric that the notice shall be duly “served” and published atleast thirty days before date of the sale.

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The manner of service of notice is discernible from Section 74 of the Kerala Revenue Recovery Act, 1968. Any other adult member in the family can be served if notice cannot be directly served on the person concerned.

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W.P.(C).No.12651 of 2012

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The original files relating to the same were called for and perused. The same reflects that notice was accepted by the son on behalf of the first petitioner. But there was no service of notice on the second petitioner evidently.

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The serving officer should indicate as to why the notice was served on another adult member or was affixed in the outer door of residence. No affixure in the residence of the first petitioner was also made in the instant case.

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There is of course evidence to the effect that there was publication of notice under Section 75 of the Kerala Revenue Recovery Act, 1968. But that alone is not sufficient in the absence of service of notice as mandated under Section 49(2) of the Kerala Revenue Recovery Act, 1968.

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The revenue sale conducted in the absence of notice to the first petitioner who is a co-owner is vitiated. I have no other course but to set aside the revenue sale.

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Exts.P6 and P8 orders passed by respondents one and two confirming the sale are hereby set aside. The respondents are permitted to surge ahead with the proceedings for sale afresh if the liability is not cleared by the petitioners.

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I take note of the fact that the seventh respondent auction purchaser did not appear though served with notice. I

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W.P.(C).No.12651 of 2012

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also record the submission of the sixth respondent defaulter that he is willing to pay off the entire arrears after availing the

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Amnesty Scheme, if any.

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The writ petition is disposed of.

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Sd/- V.CHITAMBARESH, Judge

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G.Vasumathy v. State of Kerala

Case brief

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G.Vasumathy v. State of Kerala

Case brief

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