IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 5051 of 2010(F) ------------------------------------- PETITIONER: ------------------- M.MUHAMMED KABIR, S/O.MUTHUMEERAN PILLA, AGED 48 YEARS, CHENKALAYIL HOUSE, VIZHINJAM P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.T.R.SADEESAN, SRI.A.HAROON RASHEED. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. THE TAHSILDAR, NEYYATTINKARA. 4. SHRI.N.SUDHAKARAN, SANTHASUDHA, BEACH ROAD, KOVALAM, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI. NOBLE MATHEW, R4 BY ADVS. SRI.P. GOPINATH, SRI.M.JITHESH MENON. SRI.R.RAJESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.5051/2010-F: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE SOLVENCY CERTIFICATE DTD. 27/03/03 ISSUED TO THE PETITIONER BY THE R.3. EXT.P.2: COPY OF THE ORDER NO. S5-38220/2005 DTD. 23/10/07 ISSUED BY THE R.2. EXT.P.3: COPY OF THE JUDGMENT DTD. 22/10/08 OF THIS HON'BLE COURT. EXT.P.4: COPY OF THE G.O.(RT).NO.272/2010/RD DTD. 21/01/2010 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.5051 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2011 J U D G M E N T The petitioner is an applicant for an AWD license at Kovalam centre. Along with his application, he produced Ext.P1 Solvency Certificate. That solvency certificate was cancelled later by the Government without affording the petitioner an opportunity of being heard. The petitioner obtained Ext.P3 judgment from this Court in W.P.(C) No. 35976/2007, quashing the order of the Government and directing reconsideration, after hearing the parties. The cancellation of the solvency certificate was based on a complaint from the 4th respondent who is a rival applicant. The petitioner and the 4th respondent were heard by the Government in accordance with Ext.P3 judgment. Thereafter, Ext.P4 order was passed by the Government, the operative portion of which reads as follows: “7. Government examined the arguments put in at the time of hearing by both the parties in the light of the facts and records. Guidelines for the issue of solvency certificate is stated in the standing order on “Issue of certificates” by the Board of Revenue issued vide G.O. (MS) No.359/67/RD dated, 10.08.1967; where in the Tahsildars are required to issue solvency certificate for various purposes after proper enquiry. As per the said order nobody is specifically empowered to cancel the solvency certificate once issued. W.P.(C)No.5051 of 2010 -2- 8. The petitioner Shri. Mohammed Kabir owns some property whatever the value of the same may be. Therefore he is eligible for a solvency certificate. The Hon'ble High Court quashed Ext.P5 letter by which Government has directed the District Collector, Thiruvananthapuram to take action to cancel the solvency certificate to Shri. Mohammed Kabir, the petitioner. As such the proceedings issued by the District Collector, Thiruvananthapuram on the basis of the said letter as per the 2nd paper above is liable to be cancelled. 9. In the above circumstances the proceedings of the District Collector, Thiruvananthapuram read above as 2nd paper is quashed Government are pleased to direct the District Collector, Thiruvananthapuram to give necessary instruction to the Tahsildar Neyyattinkara to issue a fresh solvency certificate to Shri. Mohammed Kabir, the petitioner after proper evaluation according to the criteria adopted for the issuance of solvency certificate with retrospective effect from date of solvency certificate which was cancelled as per the direction of Govt. letter read as 1st paper above. 10. The judgment of the Hon'ble High Court in W.P. (C) 35976/07 is complied with accordingly.” The petitioner challenges that part of Ext.P4 order, which directs the District Collector to give necessary instructions to the Tahsildar to issue a fresh solvency certificate to the petitioner. According to the petitioner, after having held that the cancellation of the solvency certificate is bad, without a finding that the valuation in Ext.P1 solvency certificate is exaggerated or invalid, the Government could not have issued any direction for issuing a fresh solvency certificate with retrospective effect, in so far as before the Government there was no material to conclude that the W.P.(C)No.5051 of 2010 -3- valuation in Ext.P1 solvency certificate is exaggerated or is against the norms fixed by the Government for issuance of solvency certificates. 2. The 1st respondent has filed a counter affidavit, wherein it is accepted that the order cancelling the solvency certificate of the petitioner is null and void and therefore Ext.P1 solvency certificate issued by the Tahsildar is still in force. Justifying paragraph No.9 of Ext.P4 order, what is stated in the counter affidavit is as follows: “6. It is submitted that Ext.P.1 certificate bears exorbitant value and is liable to be reviewed. As the Tahsildar is the authority to issue the certificate he is liable to revise the same by applying the criteria fixed for the issuance of solvency after evaluating the petitioner's property in accordance with the rates prevailed at the time of issuance of the certificate. Hence Ext.P4 order is proper and is in accordance with the law.” 3. The 4th respondent would vehemently argues that in Ext.P4 the contention of the petitioner that the valuation in Ext.P1 solvency certificate is exaggerated has been accepted and that is why the Government has directed issuance of a fresh solvency certificate. He particularly refers to paragraph 6 of Ext.P4 which reads as follows: 6. The 4th respondent Shri. Sudhakaran appeared for hearing with his counsel through Advocate Anuparvathy. S and produced documents to show that the recent registration in the W.P.(C)No.5051 of 2010 -4- area was effected only to a maximum of Rs.4000/- per cent. Even assuming a maximum price of (Rs.10,000/- per cent not admitted) total value would run only a tune of Rs.1,90,000/- and for the building ref in the solvency certificate as per the PWD valuation would value only to maximum Rs.3,50,000/-. It was in such a case that the authorities issued a solvency certificate for Rs.16,00,000/-. Thus the solvency certificate issued bears exorbitant valuation which is many folds, higher than the price fixed by the Government and then prevailing market price. Further arguments put in is that the issuance of solvency is not after hearing the parties concerned. The same is done on the facts and figures and other datas relating to the value of the property and as such no hearing is required for the cancellation also. However High Court considering the principals of natural justice had directed to hear the petitioner and dispose of the matter. It was argued that the original valuation as regard the petitioner properly is not as per the norms and value fixed by the Govt. and hence the cancellation of solvency certificate to Shri. Mohammed Kabir is right.” I do not agree with the 4th respondent that the paragraph 6 operates as a finding that the valuation is exaggerated. On the other hand, paragraph 6 is only a reiteration of the contention of the 4th respondent. Neither in Ext.P4 nor in the counter affidavit filed by the 1st respondent, is there any material supplied to hold that the valuation in Ext.P1 solvency certificate is in any way exaggerated. On the other hand, the Government themselves say that on setting aside the order of the District Collector cancelling Ext.P1 solvency certificate, Ext.P1 solvency certificate is still in force. Thereafter, I am of opinion that without any material on record to show that W.P.(C)No.5051 of 2010 -5- the valuation is exaggerated, the Government have no business to issue a direction to the District Collector to direct the Tahsildar to issue a fresh solvency certificate, especially when the Government themselves admits that Ext.P1 solvency certificate is still in force. Without cancelling Ext.P1 solvency certificate, the Government cannot direct to issue a fresh solvency certificate. Therefore, that direction in Ext.P4 is quashed. Consequently, the petitioner is entitled to rely on Ext.P1 solvency certificate for putting forward his claim in respect of the selection of the AWD, for which he has submitted an application, which is pending consideration before this Court in W.P. (C) No.17655/2006. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/