Allowed

Sibi Francis v. State of Kerala

Kerala HC8 Apr 2013WP(C)/2588/2013

Case brief

AI extract

What is this about?

This writ petition challenged a revenue recovery proceeding leading to a sale of land to the State for dues owed by a third party. The court held that Section 50 does not authorize appropriation for Government when dues are owed to an institution. The petitioner was directed to pay dues, after which the sale was set aside to restore and mutate the property in his favor.

What did the court decide?

Petitioner directed to pay dues (Rs.35,189 with interest) within one month. Sale in favor of State set aside. Property restored and mutated in petitioner's name.

Sibi Francis Vs State of Kerala — Landlord and Tenant | 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 ANTONY DOMINIC

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MONDAY, THE 8TH DAY OF APRIL 2013/18TH CHAITHRA 1935

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WP(C).No. 2588 of 2013 (W)

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PETITIONER(S):

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SIBI FRANCIS, AGED 40 YEARS, S/O.FRANCIS, ARAPPATHANATH HOUSE, ARIKKUZHA P.O,, MANAKKAD VILLAGE, THODUPUZHA.

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BY ADV. SRI.L.RAJESH NARAYAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR & REHABILITATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2. TAHSILDAR,

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TALUK OFFICE, THODUPUZHA-685585.

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3. DISTRICT COLLECTOR, IDUKKI-685603.

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4. DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD THODUPUZHA-685585.

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5. VILLAGE OFFICER, MANAKKAD-685608.

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6. SHABU FRANCIS, ARAPPATHANATH HOUSE, PALLIKAVU JUNCTION, ARAKKUZHA ROAD, MUVATTUPUZHA-686673.

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R2 BY ADV. GOVERNMENT PLEADER SMT. K.A.SANJEETHA

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R4 BY ADV. SRI.NAVEEN. T, SC, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 2588 of 2013 (W)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXT-P1 COPY OF THE SALE DEED NO.2003/1998 DATED 31.7.1998 OF THE THODUPUZHA SRO

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EXT-P2 COPY OF THE ENCUMBRANCE CERTIFICATE DATED 10.8.2004 BEARING NO.3611/2004

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EXT-P3 COPY OF THE COMPLAINT DATED 13.7.1999

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EXT-P4 COPY OF THE NOTICE UNDER S.7 DATED 9.7.1998 EXT-P5 COPY OF NOTICE OF SALE DATED 21.1.1999.

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EXT-P6 COPY OF THE COMPLAINT DATED 13.1.2006.

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RESPONDENTS' EXHIBITS : NIL

// TRUE COPY //

P.A. TO JUDGE

DSV/-

ANTONY DOMINIC, J

W.P.(C).2588/2013

Dated this the 8^th day of April, 2013

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JUDGMENT

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Heard the learned counsel for the petitioner, learned Standing Counsel appearing for the 4^th respondent and the learned Government Pleader appearing for respondents 1 to 3 and 5.

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Petitioner says that about 75 cents of land was originally owned by the grandfather of the petitioner and the 6^th respondent. Property thereafter was devolved on their father, from whom petitioner and the 6^th respondent got 30 cents of the property. It is stated that out of the 30 cents, 6^th respondent sold 15.5 cents to one Suresh Babu on 3.12.1997. Subsequently, by Ext.P1 document of 31.7.1998, petitioner purchased the said property from Suresh Babu. His grievance is that recently respondents 2 and 5 came to the property including that was originally owned by the petitioner and took steps as though the property was a bought-in-land. There upon, he made enquiries and came to know that the revenue recovery proceedings were initiated against the 6^th respondent for the recovery of the dues to the 4^th respondent.

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W.P.(C).2588/13

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It is in these circumstances, petitioner has filed this writ petition praying that the property acquired by him by Ext.P1 cannot be proceeded against for recovery of the dues of the 6^th respondent and also to effect mutation applied for by him.

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A counter affidavit has been filed by the 2^nd respondent which shows that a requisition was received from the 4^th respondent on 29.4.1998 for recovering Rs.35,189/- with interest at 9% from 8.2.1998. It is stated that on receipt of such requisition, revenue recovery certificate was issued on 12.6.1998 and that notice under Section 7 of the Revenue Recovery Act was issued on 9.7.1998. Although this notice was served on the 6^th respondent on 18.7.1998, he did not care to remit the amount. Subsequently, notice under Section 34 of the Revenue Recovery Act was issued on 8.9.1998 which was served on 10.9.1998. Thereafter, notice of sale under Section 36 of the Revenue Recovery Act was issued on 13.10.1998. That notice was served on the 6^th respondent on 26.10.1998. In that notice, it was proposed to attach 8.23 Ares of land comprised in

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W.P.(C).2588/13

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Sy.No.79/4-3 in Block No.11 of Manakkad Village and also 2.02 Ares covered by Thandaper No.2925 was attached on 31.10.1998. The property was put in public auction on different dates in December 1998 and March 1999. For want of bidders finally on 24.5.1999, the authorised officer bid the property on behalf of the Government. It is stated that sale was confirmed by the RDO vide proceedings dated 27.11.2001. On this basis respondents say that the property is a bought-in-land and is therefore, a Government property.

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Thus, fact remains that the 6^th respondent was a defaulter to the 4^th respondent which is recoverable under the provisions of the Revenue Recovery Act. According to the 4^th respondent, final determination order was passed on 28.11.1997. This means that the 6^th respondent sold the property to Suresh Babu on 3.12.1997 which was after the amount fell due. In such circumstances, though recovery proceedings initiated against the property covered by Ext.P1, which was originally owned by the 6^th respondent, cannot be said to be illegal, still fact remains that

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W.P.(C).2588/13

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the revenue recovery proceedings were initiated for the recovery of the dues of the 4^th respondent. In such a situation, Section 50 of the Revenue Recovery Act does not authorize the Government to appropriate the property unto itself for the reason that it was only for recovering the dues on behalf of the 4^th respondent. This principle has been laid down by a Division Bench of this

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Court in District Collector v. Subaida Beevi (2010 (1) KLT

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913) where it has been held thus:-

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“Going by the scheme of the Act, we are of the view that when a notification is issued under Section 71, the provisions of the Act apply mutatis mutandis to the recovery of the amounts due to the said institution. If that be so, in S.50(2), the words, 'on behalf of the Government' should be read as 'on behalf of the institution concerned'. Therefore, if there was no bidders, the Revenue Recovery Officer could have purchased the property on behalf of the second respondent Bank only. But, in this case, it was purchased on behalf of the State, for Rs.1. So the entire proceedings were vitiated.”

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Insofar as this case is concerned, admittedly, Rs.35,189/-

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with interest thereon, was due to the 4^th respondent. In order to save his property from distress action, petitioner is willing to pay the said amount also.

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W.P.(C).2588/13

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In such circumstances, I dispose of this writ petition with the following directions.

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a)Within one month from today, petitioner shall pay Rs.35,189/- together with interest and other charges, to the 2^nd respondent.

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b)Once the payment is made as above, for the aforesaid reasons, sale of the property in favour of the State, as confirmed by the order of the RDO dated 27.11.2001, will stand set aside.

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c)Once the sale is set aside as above, property will be restored and will be mutated in the name of the petitioner.

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Sd/- ANTONY DOMINIC, JUDGE

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mrcs

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/true copy/ PA To Judge

Sibi Francis v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sibi Francis v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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