IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 WP(C).No. 33830 of 2010(C) -------------------------- PETITIONER : --------------------- MUHASSAN PALLIKANDY, S/O.ABDULLA KUTTY, MUBARAK MANZIL, KOYA ROAD, PUTHIYANGADI.P.O, KOZHIKODE DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE TAHSILDAR (RR), TALUK OFFICE, KOZHIKODE - I. 3. THE VILLAGE OFFICER, PANNIANKARA VILLAGE, P.O.KALLAYI, 673506 KOZHIKODE DISTRICT. 4. MOIDEEN KOYA, S/O.ABDULL KOYA, K.T.HOUSE, PULIKKILPADAM, ARTS COLLEGE.P.O, KOZHIKODE DISTRICT – 673 506. R1 TO R3 BY GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ----------------------------------------- W.P.(C). NO. 33830 OF 2010 ---------------------------------------- Dated this the 4th day of March, 2011. JUDGMENT The petitioner is the purchaser of 12 ½ cents of property covered under Ext.P1 sale deed. The executants of Ext.P1 are the legal heirs of one Sri.Abdulla Koya, who died in May 1994. According to the petitioner, he had purchased the property bona fidie, for valuable consideration. The 4th respondent herein who is one among the legal heirs of Sri.Abdulla Koya was a defaulter in payment of tax amount due to the Government. Pursuant to revenue recovery steps initiated against the 4th respondent, respondents 1 to 3 had proceeded against the property covered by Ext.P1 and attachment was effected on 4.9.2004. When further proceedings were initiated for sale of the property in question, this writ petition was filed. 2. Contention of the petitioner is that the 4th respondent who is the defaulter is having only 1/8th share in the property in question and the attachment effected as well as the proceedings initiated proposing sale of the entire property, is totally unsustainable. Under such circumstances, the petitioner is W.P.(C). NO. 33830 OF 2010 2 seeking direction to quash the revenue recovery proceedings initiated. Learned counsel for the petitioner also made an alternative suggestion to the effect that the petitioner is ready and willing to make payment of the value to the extend of the 1/8th undivided share held by the 4th respondent in the property in question, in order to sale the property from being sold. 3. In a statement filed on behalf of the 2nd respondent, it is conceded that the property covered under Ext.P1 which is attached by virtue of the proceedings is a joint property belonging to all the legal heirs and the 4th respondent who is the defaulter is having only a fractional right in the said property. It is further contended that the transfer in favour of the petitioner was effected at a time when the attachment on the property was in force. According to the second respondent steps were taken to get the property partitioned for proceeding with further steps of recovery. 4. On the basis of the offer made by the petitioner to make payment of the amount due towards value of 1/8th share, a direction was issued by this Court to the second respondent to conduct a valuation study of the property and to submit a report. As per the reports submitted in this regard by the second W.P.(C). NO. 33830 OF 2010 3 respondent, the market value of the property was assessed at Rs.19,36,398/- and the value of 1/8th share on such basis will be a sum of Rs.2,42,050/-. Learned counsel makes an offer, to pay the said amount in order to get rid of the property being proceeded against. 5. From the facts and circumstances as stated above, it is evident that the defaulter, who is 4th respondent is having only a fractional share of 1/8th in the property in question. Going by provisions of the Kerala Revenue Recovery Act, the respondents 1 to 3 are entitled to proceed only against the undivided fractional share of the defaulter in the property in question. Even though petitioner had offered to make payment of the value as ascertained by the 2nd respondent, it is not proper and justified on the part of this Court to direct the respondents to drop the proceedings after accepting the amount as such. I am of the view that interest of justice will be served if the second respondent is directed to conduct an auction sale of the 1/8th undivided share in the property with freedom reserved to the petitioner to participate in such auction and to purchase the undivided share. 6. Under such circumstances the writ petition is disposed of and directing the second respondent to conduct sale to 1/8th W.P.(C). NO. 33830 OF 2010 4 undivided share belonging to the 4th respondent in the property covered under Ext.P1 sale deed, after fixing the upset price as Rs.2,42,050/-. It is made clear that the petitioner will be at liberty to participate in such auction. It is further made clear that, if there is no competitive bidders, then the sale of the undivided share shall be confirmed in favour of the petitioner for the value as mentioned above. Till such time the auction is conducted as directed above, further steps of recovery against the property covered under Ext.P1 shall be kept in abeyance. However, it is made clear that respondents will be at liberty to proceed against any other property belonging to the 4th respondent for realising the amounts due. The proceedings of sale as directed above shall be conducted at the earliest possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE mns