Dismissed

A.K.Shanmughan v. Commissioner of Land Revenue

Kerala HC16 Dec 2014WP(C)/20783/2004

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition challenging orders rejecting his revision applications regarding the sale of his attached property. The Court held that the petitioner failed to comply with the statutory procedure under Sections 52 and 53 of the Kerala Revenue Recovery Act to set aside the sale within the prescribed time, rendering the challenge time-barred and fatal to the

What did the court decide?

The writ petition was dismissed with the result that the impugned orders passed by the Revenue authorities were upheld and remain in force.

A.K.Shanmughan Vs Commissioner of Land Revenue — Contract and Commercial Disputes | Kerala HC (2014)

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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 A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936

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WP(C).No. 20783 of 2004 (Y)

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PETITIONER(S):

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A.K.SHANMUGHAN, S/O. KUMARAN, ALUPPADI HOUSE, PERUMPADAPPA DESOM CHENTHRAPPINNI P.O., TRICHUR DISTRICT.

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BY ADV. SRI.T.M.CHANDRAN

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RESPONDENT(S):

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1. THE COMMISSIONER OF LAND REVENUE, MUSEUM JUNCTION, THIRUVANANTHAPURAM-33.

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2. THE DISTRICT COLLECTOR, TRICHUR.

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3. SIDDIQUE, S/O. POKKAKILATH KUNJIBHAVA, POKKAKILATH HOUSE, KATTOOR P.O., TRICHUR DIST.

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4. BABY BABU, W/O. BABU, ALUMPADI HOUSE, CHENTHRAPPINNI P.O., TRICHUR DISTRICT.

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ADDL.R5:

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5. GEORGE,S/O.CHERIYAN VADU KUNHIVAREED, ARIPPALAM DESOM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK, TRICHUR DISTRICT.

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ADDL.R5 IS IMPLEADED AS PER ORDER DATED 16.12.2014 IN I.A.NO.8408/2008.

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R,R1 & 2 BY GOVERNMENT PLEADER SMT.LILLY.K.T. R,R3 BY ADV. SRI.T.K.VASAVAN R,R4 BY ADV. SRI.G.P.SHINOD R,R4 BY ADV. SRI.MANU V. R,R3 BY ADV. SRI.T.H.ABDUL AZEEZ R,ADDL.R5 BY ADV. SRI.RAJESH CHAKYAT

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.20783/2004

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: COPY OF THE ORDER NO.LR(B) 7-25245/99 DT.29.12.2000 PASSED BY THE 1ST RESPONDENT.

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EXT.P2: COPY OF THE ORDER NO.G2-50791/96 DT.01.07.2002 PASSED BY THE 2ND RESPONDENT.

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EXT.P3: COPY OF THE REVISION PETITION DT.30.09.2002 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXT.P4: COPY OF THE ORDER NO.LR(B) 7-30889/02/KDIS. DT.26.03.04 PASSED BY THE 1ST RESPONDENT.

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EXT.P5: COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF BALANCE AMOUNT.

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EXT.P6: COPY OF THE ORDER NO.G2.32637/95/L.DIS. DT.5.10.1995 PASSED BY THE 2ND RESPONDENT.

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EXT.P7: COPY OF THE JUDGMENT DT. 06.01.1999 IN O.P.4552/96 PASSED BY THIS HONOURABLE COURT.

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EXT.P8: COPY OF NOTICE DATED 16.2.1994.

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EXT.P9: COPY OF PETITION DATED 10.3.1994.

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EXT.P10: COPY OF PETITION DATED 12.12.1994 FILED BY THE PETITIONER.

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EXT.P11: COPY OF ORDER DT. 8.1.1996 SHOWN AS 8.1.1995 PASSED BY THE 1ST RESPONDENT.

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EXT.P12: COPY OF THE REGISTERED ASSIGNMENT DEED NO.1203/1994 OF KATTOOR SUB REGISTRY.

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RESPONDENTS EXHIBITS: NIL.

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//TRUE COPY//

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P.S. TO JUDGE

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A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C).NO.20783 OF 2004 (Y) ----------------------------------Dated this the 16^th day of December, 2014

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J U D G M E N T

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The petitioner, who was an assessee under the Kerala General Sales Tax Act, defaulted on payment of sales tax arrears for the assessment years 1983-84 and 1984-85. In connection with the said default and consequent thereto, revenue recovery proceedings were initiated against him. On 29.10.1987, a demand notice was served on the petitioner under Sections 7 and 34 of the Kerala Revenue Recovery Act, 1968, hereinafter referred to as the 'Act'. It was subsequently found that the petitioner had properties only in Kattoor Village which came under the jurisdiction of the Tahsildar, Mukundapuram, and under those circumstances, the revenue recovery proceedings were transferred to the said Tahsildar. By proceedings dated 12.1.1988 under Section 36 of the Act, the property of the petitioner which comprised of¹ /3rd share of 1.96 acres of land in Sy.No.842/1 of Kattoor Village was attached and notified for sale in terms of Section 49(2) of the Act. On 10.9.1988, the said property was sold to one Jose for a consideration of Rs.9,200/-.

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W.P.(C).NO.20783/2004

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Although the petitioner filed O.S.No.1200/1988 before the Munsiff Court, Irinjalakuda, the same came to be dismissed. In the meanwhile, on 6.9.1988, the petitioner preferred an application before the District Collector to set aside the sale. In response to the said petition, the District Collector by communication dated 23.2.1989 asked the petitioner to produce a nil liability certificate from the Sales Tax Authorities so as to pass orders on the application preferred by the petitioner. It would appear that against the said communication of the District Collector, the petitioner preferred a revision petition before the Board of Revenue (LR), which came to be dismissed vide order dated 25.5.1992. In the meanwhile, however, by an order dated 25.10.1991, the Revenue Divisional Officer found that the amount fetched for the property was too meagre and therefore, set aside the sale of the property to Sri.Jose and directed the authorities concerned to conduct a re-auction of the property. Pursuant thereto, the property was once again put up for sale on 5.5.1993 which was later adjourned to 9.6.1993 and thereafter to 15.7.1993. On 2.7.1993, a notice was served on the petitioner informing him of the sale that was proposed on 15.7.1993. Thereafter, on 15.7.1993, the property was sold at the auction to the 3^rd respondent for a consideration of

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Rs.18,000/-. On 25.8.1993, a report was sent to the Revenue Divisional Officer seeking confirmation of the sale. By a communication dated 20.11.1993, the Revenue Divisional Officer confirmed the sale. Thereafter, on 16.2.1994, by Ext.P8 notice issued under Section 57(1) of the Act, the petitioner was informed of the sale that was confirmed in favour of the 3^rd respondent. Thereafter on 11.7.1994, the sale certificate was also issued to the 3^rd respondent. On receipt of Ext.P8 notice, the petitioner filed a revision petition before the Board of Revenue challenging the sale that was confirmed in favour of the 3^rd respondent. By Ext.P11 order, the Board of Revenue dismissed the said revision petition. The petitioner therefore approached this Court through O.P.No.4552/1996 challenging Ext.P11 order passed by the Board of Revenue. By Ext.P7 judgment dated 6.1.1999, this Court disposed the original petition by directing the Land Revenue Commissioner to reconsider the matter after hearing the petitioner. It would appear that the Land Revenue Commissioner thereafter, directed the District Collector to pass orders in the revision petition preferred by the petitioner. By an order dated 26.5.1999, the District Collector rejected the revision petition preferred by the petitioner. Against the said order, the petitioner

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W.P.(C).NO.20783/2004

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filed another revision petition before the Land Revenue Commissioner. By Ext.P1 order dated 29.12.2000, the Land Revenue Commissioner set aside the sale in favour of the 3^rd respondent on the ground that no notice was served on the petitioner before the fresh sale that was conducted on 15.7.1993 and thereafter, remanded the matter to the District Collector for a fresh disposal of the matter. It was made clear in Ext.P1 order that the District Collector was to look into the alleged material irregularities, and also the aspect of whether the bid amount was unreasonably low. Pursuant to Ext.P1 order, the District Collector by Ext.P2 order dated 1.7.2002 once again rejected the revision petition filed by the petitioner. In Ext.P2 order, the District Collector finds that the petitioner did not comply with the provisions of Section 52 (1)/53(1) to impugn the sale, within the prescribed period of 30 days from the date of sale. It was also noted that the original bidder in whose favour the sale was confirmed namely, the 3^rd respondent, had since sold the property to others. Aggrieved by Ext.P2 order of the District Collector, the petitioner preferred a further revision before the Commissioner of Land Revenue. By Ext.P4 order dated 26.3.2004, the Land Revenue Commissioner rejected the revision petition on the grounds cited by

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W.P.(C).NO.20783/2004

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the District Collector in Ext.P2 order. In the writ petition, the petitioner impugns Exts.P2 and P4 orders inter alia on the ground that the entire proceedings for the sale of his property was vitiated by material irregularities in the conduct of the sale, inasmuch as the respondents had not complied with the procedure prescribed under the Kerala Revenue Recovery Act and the Kerala Revenue Recovery Rules while conducting the sale and confirming the sale in favour of the 3^rd respondent.

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A counter affidavit has been filed on behalf of the 2^nd respondent wherein the sequence of events leading to the passing of the orders impugned in the writ petition has been narrated. It is stated that the procedure contemplated under the Act and Rules was complied with in the instant case and the petitioner cannot be heard to contend that the sale confirmed in favour of the 3^rd respondent was in any manner vitiated by material irregularities. It is further pointed out that the petitioner had not chosen to follow the procedure under Sections 52 and 53 of the Act for the purposes of setting aside the sale in favour of the 3^rd respondent and, in that view of the matter, he could not maintain a challenge against the orders impugned in the

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W.P.(C).NO.20783/2004

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present writ petition.

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In response to a query from the Bench as to whether a notice dated 2.7.1993 had actually been served on the petitioner, the 2^nd respondent has, through I.A.No.16331/2014, produced as Annexure R2(a), a copy of the notice dated 2.7.1993 of auction sale served on the petitioner under the Act. A copy of the notice dated 3.3.1994 issued under Section 57(1) of the Act has also been produced as Annexure R2(b). In the counter affidavit filed by the petitioner to the affidavit filed by the 2^nd respondent in support of I.A.No.16331/2014, the petitioner would contend that the signature shown in Annexure R2 (a) notice is not actually his and further that Annexure R2(a) could not be treated as a valid notice issued in terms of Section 49(2) of the Act. It is further submitted that the notice contemplated under Section 49 (2) of the Act had not been published as per Section 75(1)(ii) of the Act. It is further averred that there was no affixture of the copy of notice in the office of the local authority within whose jurisdiction the attachment or sale took place, and that there was no publication of the notice in the newspapers having circulation in the area where the attachment or sale took place.

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W.P.(C).NO.20783/2004

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I have heard Sri.T.M.Chandran, the learned counsel appearing on behalf of the petitioner, Smt.Lilly.K.T., the learned Government Pleader appearing on behalf of respondents 1 and 2, Sri.T.K.Vasavan, the learned counsel appearing on behalf of the 3^rd respondent as also Sri.Manu.V., the learned counsel appearing on behalf of the 4^th respondent.

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On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that the writ petition, in its challenge against Exts.P2 and P4 orders, must necessarily fail. It is apparent from a perusal of the various orders, that were passed by the authorities under the Act, that the contention of the petitioner all along, while impugning the sale conducted by the respondents in favour of the 3^rd respondent and confirming the sale, was that the sale was vitiated on account of the non-issuance of any notice prior to the holding of the sale on 15.7.1993. It was the specific case of the petitioner that, although the respondent authorities under the Act had indicated in their orders that a notice dated 2.7.1993 had in fact been served on the petitioner,

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the said notice had not actually been served on the petitioner. Annexure R2(a) notice, that has since been produced by the 2^nd respondent through I.A.No.16331/2014 in the present writ petition, would clearly indicate that the notice dated 2.7.1993 was in fact served on the petitioner for, it bears his signature on the reverse side of the notice. No doubt, the petitioner would vehemently deny the signature on the reverse side of the notice as being his but in proceedings under Article 226 of the Constitution of India, I am constrained to go only by the documents that have been produced before me and this Court is not expected to undertake an enquiry with regard to the genuineness of the said documents. Further, I notice that the existence of the document was never in dispute since, as noted above, the document has been mentioned in the various orders that are impugned by the petitioner in the present writ petition. If therefore, as a matter of fact, the notice dated 2.7.1993 was served on the petitioner, then it cannot be denied that the petitioner had knowledge of the sale that was proposed to be held on 15.7.1993. This aspect assumes importance when one analyses the subsequent conduct of the petitioner who, as already noted, did not comply with the procedure under Section 52(1)/53(1) of the Act for the purposes of

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setting aside the sale, within the statutory period mentioned in those provisions for setting aside a sale conducted in accordance with the provisions of the Act. In my view, this inaction on the part of the petitioner, to prefer applications under Sections 52/53 of the Act for setting aside the sale confirmed in favour of the 3^rd respondent, within the period prescribed under the Act, was fatal to the petitioner and it would not be open to the petitioner, at this distance of time, to impugn Exts.P2 and P4 orders which find against him on the said point. It is also necessary to notice that the challenge in the writ petition is essentially against the sale that was confirmed in favour of the 3^rd respondent in November, 1993 and which aspect has since been examined by the 1^st and 2^nd respondents in proceedings before them on at least three occasions. We are now at a point in time where more than 20 years have elapsed, since the confirmation of the sale in favour of the 3^rd respondent. It is also brought to my notice that the property has since passed from the hands of the 3^rd respondent to subsequent purchasers. In that view of the matter, I do not think this is a fit case for the exercise of a discretionary relief in favour of the petitioner, even assuming that he succeeds in making out a case that there may have been technical violations of the procedure prescribed

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under the Act for conducting the sale of attached properties and confirmation of the said sale. I do not see any valid reason to interfere with Exts.P2 and P4 orders passed by the 2^nd and 1^st respondents respectively. Resultantly, the writ petition fails, and is accordingly dismissed.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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prp

A.K.Shanmughan v. Commissioner of Land Revenue

Case brief

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A.K.Shanmughan v. Commissioner of Land Revenue

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