Dismissed

Tahsildar, Devikulam v. Rajan Thomas

Kerala HC11 Mar 2020WA/352/2020

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the writ appeal filed by revenue officials against a writ court judgment upholding the cancellation of an auction. The appellants could not raise new grounds regarding the upset price at the appellate stage as it was not relied upon in the impugned order. The court directed the District Collector to confirm the auction and issue the sale certificate within one month

What did the court decide?

Directed the District Collector to confirm the auction of immovable property held on 28.02.2003 and issue sale certificate to the respondent within one month from the date of receipt of the judgment.

Tahsildar, Devikulam Vs Rajan Thomas — Writ and Judicial Review | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941

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WA.No.352 OF 2020

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AGAINST THE JUDGMENT DATED 20.02.2019 IN WP(C) 13162/2014(U) OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS IN W.P.(C):

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1 TAHSILDAR, DEVIKULAM IDUKKI DISTRICT, PIN-685 001.

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2 DISTRICT COLLECTOR, IDUKKI-685 001.

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3 REVENUE DIVISIONAL OFFICER, DEVIKULAM, IDUKKI DISTRICT-685 007.

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4 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY ADV. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL

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RESPONDENT/PETITIONER IN W.P.(C):

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RAJAN THOMAS KALLUMGAL HOUSE, PULIMTHANAM.P.O, POTHANICADU, KOTHAMANGALAM.

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R1 BY ADV. SRI.JOMY GEORGE R1 BY ADV. SRI.R.PADMARAJ R1 BY ADV. SMT. CHITRA N. DAS R1 BY ADV. SHRI.RISHAB S. R1 BY ADV. SRI.DEEPAK MOHAN

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No. 352 of 2020

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“C.R”

JUDGMENT

S. Manikumar, CJ

Materials on record discloses that in an earlier round of litigation, when notices were issued under Exts.P3 and P5, the same was challenged in W.P.(C) No. 1150 of 2004. After hearing the learned counsel for the parties, writ court by judgment dated 26.11.2007, ordered thus:

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“I am afraid, the reason cannot be appreciated. As held by the Division Bench of this Court in Subaida Sulaiman v. Hamsa [1991(2) KLT 158], mere inadequacy of the price fetched at the sale would not by itself is a sufficient ground to set aside the sale. That apart, it is shocking to note that the petitioner was not even issued a notice. Exts.P3, P5 and the proceedings of the Revenue Divisional Officer referred to in Ext.P3 are accordingly quashed. There will be a direction to respondents to pass orders regarding confirmation of the sale, within one month from the date of production of a copy of the judgment.”

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Being aggrieved, Tahsildar, Idukki District and three

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others have filed R.P. No. 421 of 2008 seeking review of the judgment in W.P.(C) No. 1150 of 2004. Observing that no ground

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for review has been made out, learned single Judge dismissed the writ petition. Writ Court also observed that if the appellants are of opinion that the judgment is wrong, their remedy lies in filing an appeal against that judgment. Thereafter, they filed W.A. No. 1877 of 2010 seeking to reverse the judgment in W.P.(C) No. 1150 of 2004. After considering the pleadings and submissions, and taking note of decision of a Hon'ble Division Bench of this Court in Subaida Sulaiman v. Hamsa [1992 (2) KLT 158], wherein it was held that mere inadequacy of sale price cannot be a ground for setting aside the sale and also a decision in Captain v. District Collector [1999 (2) KLT 547], as per which another Hon'ble Division Bench held that a sale can be set aside, only after issuing notice to the auction purchaser, W.A. No. 1877 of 2010 has been disposed of. Paragraph 7 of the judgment reads thus:

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“7. If sale is to be set aside before confirmation, as held by this Court, notice must be issued to the parties. Sale cannot be set aside on mere inadequacy of price. In the light of these principles, we dispose of the appeal as follows:

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If the appellants are inclined to think that sale is to be set aside on any ground available to them in law, it is open to issue such a notice within two weeks from the date of receipt of a copy of this judgment, to the respondent. If such a notice is received, necessarily it will be open to the writ petitioner to raise all contentions available to him in law, and a decision will be taken within a period of one month from the date of hearing and the question relating to the confirmation also will be decided in those proceedings. In case, no notice is issued within two weeks from the date of receipt of a copy of this judgment, then again a decision must be taken by the respondents in regard to whether confirmation must be made within a period of one month thereafter. If they are inclined to confirm it, no notice is necessary. But, if they are of the view that confirmation is not to be granted necessarily notice must be given to the writ petitioner before such a decision is taken.”

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Thus, from the previous round of litigation between the

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parties, it could be seen that the Hon'ble Division Bench has made it clear that sale cannot be set aside on mere inadequacy of price, for which reliance has been placed on Subaida Sulaiman (cited supra). Subsequent to the decision made in W.A. No. 1877 of 2010 on 22.11.2013, notice has been issued by the District Collector, Idukki, to the respondent/writ petitioner, and vide Ext.P11 proceedings No. B1-22247/2001 dated 04.03.2014,

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cancelled the auction. The reasons assigned therein for cancellation of auction read thus:

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“Cancellation of auction of immovable property under the Revenue Recovery Act is clearly stated in Sections 52, 53 and 54 of the Revenue Recovery Act. As per Section 53, if the applicant who seeks cancellation of auction of immovable property has sustained serious loss in the auction proceedings due to defects in the auction proceedings, the District Collector can cancel the auction. Further as per Section 54, even if application for cancellation of auction is not received, the auction can be cancelled for sufficient reasons. Inclusion of the Government in the party who suffers serious loss mentioned in Section 53 is in accordance with rules. The petitioner Sri. Rajan Thomas bid the property on 28.02.2003 at Rs.1,96,000/-. The same wand was purchased by him on 23.10.2001 as per sale deed. It is evident from the report under Ref. (4) that he has informed the said fact in writing to the Devikulam Tahsildar on 19.02.2003. It is after the proceedings for recovery of Government dues were initiated. For the reason that he has purchased the land for consideration, the Government has to attach the property under Section 44 of the Revenue Recovery Act. The fact that the person who purchased the land by paying consideration as per document again prepared to pay the auction amount of Rs.1,96,000/- is sufficient to hold that apparent irregularity has committed in the auction proceedings.

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Attachment proceedings were initiated for realisation of a huge amount of Rs.1,07,91,586/- (Rupees One Crore Seven Lakhs Ninety one thousand five hundred eighty six only) due to the Government towards Abkari arrears. Through the auction proceedings, the amount obtained is only less than 2% of the arrears amount.

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In this circumstance, in view of the fact that apparent irregularity has been committed in the auction of immovable property held on 28.02.2003 and the Government has suffered serious loss due to the said auction proceedings for the eligible arrear amount, the said auction is hereby cancelled.”

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Correctness of Ext.P11 order dated 04.03.2014 has been challenged by the respondent/writ petitioner in W.P.(C) No. 13162 of 2014 on various grounds. In the aforesaid W.P.(C), District Collector, Idukki, 2^nd respondent herein, has filed a counter affidavit and at paragraphs 8 and 9, it is averred thus:

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“8. It is submitted that on inspecting the property on 05.11.2003, it is found that there is a house building bearing Panchayat No. X-187 IX 233. So, the 3^rd respondent Revenue Divisional Officer refused to confirm the sale because of the inadequacy of the bid amount. Hence, the 3^rd respondent cancelled the auction and directed the first respondent to conduct re-auction after issuing form 16 notice under Section 49(2).

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It is submitted that the requisition submitted by the Excise Commissioner is for an amount of Rs.1,07,91,586/-. The amount fetched from the attached property of Mr. A.M Chacko is only Rs.1,96,000/-. Moreover, the property has not fetched market value. Hence, this 3^rd respondent declined the sale confirmation. The action of the respondents are purely legal and perfect.”

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It is seen that even in the second round of litigation, the appellants have taken a contention that the auction of immovable property under the Revenue Recovery Act was cancelled only on the ground of inadequacy of bid amount. As per the requisition submitted by the Excise Commissioner, the amount due and recoverable is Rs.1,07,91,586/- and the amount fetched from the attached property of Mr. A.M Chacko is only Rs.1,96,000/-. In Ext.P11 proceedings of the District Collector dated 04.03.2014, he has referred to Sections 52, 53 and 54 of the Revenue Recovery Act, 1968. As per Section 53 of the said Act, if the applicant, who seeks cancellation of auction of immovable property, has sustained serious loss in the auction proceedings due to defects, District Collector can cancel the auction, and that

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as per Section 54, even if any application for cancellation of auction is not received, auction can be cancelled for sufficient reasons. The District Collector has only referred to the inadequacy of bid amount and that, he has not referred to any other reason mentioned in Section 53 of the Revenue Recovery Act. At this juncture, it is worthwhile to extract Sections 52, 53 and 54 of the Revenue Recovery Act, which read thus:

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“ 52. Application to set aside sale of immovable property on deposit .-(1) Any person owning or claiming an interest in immovable property sold under this Act may, at any time within thirty days from the date of the sale, deposit in the treasury of the taluk in which the immovable property is situate or if there be no treasury in the taluk, in the nearest treasury-

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a) a sum equal to five per cent of the purchase money ; and b) a sum equal to the arrears of public revenue due on land

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for which the immovable property was sold together with interest thereon and cost of process,

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and may apply to the Collector to set aside the sale.

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(2) If such deposit and application are made within thirty days from the date of the sale, the Collector shall pass an order

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setting aside the sale, and shall repay to the purchaser the purchase money so far as it has been deposited, together with the five per cent deposited by the applicant

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Provided that if more persons than one have made deposit and application under this section, the application of the first depositor shall be accepted.

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(3) If a person applies under section 53 to set aside the sale of immovable property, he shall not, unless he withdrawn such application, be entitled to make an application under this section.

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53. Application to set aside sale on ground of material irregularity, mistake, etc .-- (1) At any time within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake or fraud in publishing or conducting it ; but, except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake, unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof.

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(2) If the application is allowed, the Collector shall set aside the sale and may direct a fresh sale.

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Order confirming or setting aside sale .- On the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under section 52 or section 53 or if any such application has been made and rejected, the Collector shall make an order confirming the sale:

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Provided that if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale.”

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Stand of the appellants on both the occasions is only inadequacy of bid amount and that, at no point of time, no defect in the conduct of sale has been raised.

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Now, the appellants have approached this Court by filing the instant appeal, raising a new ground as under:

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“The court below ought to have found that the upset price fixed by the revenue authorities for the property is Rs.1000/- per cent but the respondent/petitioner had quoted below Rs.1000/- and he sought for confirmation of sale on eth said price. This is illegal and liable to be interfered by the learned single Bench.”

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It is trite law that an order impugned in a writ petition has to fail or succeed for the reasons contained in the said order and that the same cannot be supported by way of a counter affidavit or raising new grounds in the appeal. Reference can be made to the decision of the Hon'ble Supreme Court in Mohinder Singh Gill v. Chief Election Officer [(1978) 1 SCC 405), wherein, at paragraph 8, it was held as follows:

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“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16) (at p. 18):

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"…....public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with

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reference to the language used in the order itself".

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Orders are not like old wine becoming better as they grow older. A Caveat.”

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The abovesaid observations in Mohinder Singh Gill

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(cited supra) have been followed in the decisions extracted hereunder:

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(i) In Reshmi Metaliks Limited and Another v. Kolkata Metropolitan Development Authority and Other s reported in (2013) 10 SCC 95 , the Hon'ble Apex Court held as under:

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“The impugned Judgment is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Judgment itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision.”

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(ii) In Dipak Babaria and Another v. State of Gujarat and Others reported in (2014) 3 SCC 502, the Hon'ble Apex Court held as under:

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“64. That apart it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits …..............”

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(iii) In T.P.Senkumar, IPS v. Union of India and Others reported in (2017) 6 SCC 801 , the Hon'ble Apex Court held as under:

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“84. The law has been well - settled for many years now that when an order is passed in exercise of a statutory power on certain grounds, its validity must be judged by the reasons mentioned in the order. Those reasons cannot be supplemented by other reasons through an affidavit or otherwise. Were this not so, an order otherwise bad in law at the very outset may get validated through additional grounds later brought out in the form of an affidavit.

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Apart from the fact that it is not permissible for the State Government to provide reasons in the detailed counter affidavit for the transfer of the appellant.....”

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(iv) In Andhra Pradesh Industrial Infrastructure Corporation Limited and Others v. S.N. Raj Kumar and Another reported in (2017) 6 SCC 801 , the Hon'ble Apex Court held as under:

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“20. Insofar as the argument that the land is not used for putting a factory building but was used for some other purpose is concerned, no such case was pleaded by the appellant - Corporation in the High Court or even in these appeals. This was not the reason for initially cancelling the allotment or demanding payment of 50% of the prevailing market value. Therefore, this oral argument advanced at the time of hearing cannot be accepted without

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any material on record and when it was not the basis of cancellation / demand of payment.”

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(v) In State Bank of India v. M/s. Jah Developers Pvt. Ltd. and Ors [AIR 2019 SC 2854], the Hon'ble Apex Court held as under:

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“14. When it comes to whether the borrower can, given the consequences of being declared a wilful defaulter, be said to have a right to be represented by a lawyer, the judgments of this Court have held that there is no such unconditional right, and that it would all depend on the facts and circumstances of each case, given the governing rules and the fact situation of each case.”

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Furthermore, in JYPD Scheme Welfare Trust v. Chief Officer, Maharastra Housing and Area Development Authority and

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Others reported in (2017) 6 SCC 801 , the Hon'ble Apex Court held as under:

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“7. It is true that when the order of cancellation dated 24.08.2004 was passed, the same was solely on the ground that the Appellant-Trust did not submit the relevant documents to prove its eligibility and on no other ground. The High Court considered the grounds stated in the counter affidavit and did not interfere with the order of cancellation dated 24.08.2004. The Appellant would be justified in making the grievance that

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the High Court was not justified in considering the grounds stated in the counter affidavit which were not the basis for passing the original order of cancellation.”

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As rightly observed by the writ court, auction in question was held in the year 2003. Now 17 years have elapsed. Appellants cannot raise new grounds at the appellate stage to sustain cancellation.

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In the light of the discussion and decisions (cited supra), we do not find any tenable ground to interfere with the impugned judgment.

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Sri. Jomy George, learned counsel for the respondent, submitted that acting on the directions issued by the writ court in W.P.(C) No. 13162 of 2014 dated 20.02.2019, District Collector, Idukki, has issued proceedings in Ext.R1(a) dated 10.07.2019 and directed the Sub-Collector, Devikulam, to confirm the sale. At this juncture, Sri. Tek Chand, learned Senior Government Pleader, submitted that on receipt of the said directions, Sub Collector raised certain queries and only thereafter, this appeal has been filed. Now the impugned judgment is sustained and

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therefore, 2^nd respondent, District Collector, Idukki, is hereby directed to confirm the auction of the immovable property conducted on 28.02.2003 and issue sale certificate so as to enable the respondent/writ petitioner to take consequential steps. Entire proceedings shall be completed, within one month from the date of receipt of a copy of this judgment.

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With the above observations and directions, this writ appeal

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is dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE

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sd/- SHAJI P. CHALY, JUDGE

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