IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 W.A.No.666 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.4306/2007 DATED 29/01/2008 .................... APPELLANT/6TH RESPONDENT:- ------------------------------------------------- M.V.JOSE, MADATHIPARAMBIL HOUSE, NAYARAMBALAM, ERNAKULAM. BY ADV. SRI.DINESH R.SHENOY RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 5 & 7AND 8:- -------------------------------------------------------------------------------------------------- 1. KAMALAKSHI, W/O.LATE VIJAYAN, KAITHAVALAPPIL HOUSE, NAYARAMBALAM VILLAGE, KOCHI TALUK. 2. VINU RAJ, S/O.LATE VIJAYAN, -DO- -DO- 3. VIJAYAMMA, D/O.LATE VIJAYAN, -DO- -DO- 4. STATE OF KERALA, REP.BY THE SPECIAL SECRETARY TO GOVERNMENT, REVENUE (S) DEPARTMENT, THIRUVANANTHAPURAM. 5. DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD. 6. SPECIAL TAHSILDAR (R.R), FORT KOCHI, PIN-682 001. W.A.NO.666 OF 2008 - 2 - 7. THE VILLAGE OFFICER, NAYARAMBALAM, KOCHI TALUK. 8. THE ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. 9. SUBRAMANIAN, S/O.LATE VIJAYAN, KAITHAVALAPPIL HOUSE, NAYARAMBALAM VILLAGE, KOCHI TALUK. 10. K.V.JAYAN, S/O.LATE VIJAYAN, KAITHAVALAPPIL HOUSE, NAYARAMBALAM VILLAGE, KOCHI TALUK. R1 TO R3 BY ADV. SRI.P.A.ABDUL JABBAR. R4 TO R8 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. R10 BY ADV.SRI.SHAJI P.CHALY. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2008, ALONG WITH W.A NO.665 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu, C.J. & A.K.Basheer, J. ---------------------------------------------- W.A.Nos.666 of 2008 & 665 of 2008 ---------------------------------------------- Dated, this the 23rd day of July, 2008 JUDGMENT H.L.Dattu,C.J. These writ appeals are directed against the order passed by the learned Single Judge in W.P.(C) Nos.4306/07 and 28273/2007. 2. The legal representatives of one late K.K.Vijayan are before this Court in W.P.(C).No.4306 of 2007. 3. In the writ petition filed, the reliefs that are sought for by the petitioners are, firstly, to call for the records leading to Ext.P7 (revenue recovery notice) and then issue a writ in the nature of certiorari to quash those proceedings, secondly, for a direction to the 2nd respondent to accept from the petitioners the remittance of 1/4th of the total dues towards Kist arrears on behalf of late K.K.Vijayan in pursuance of Exhibit P5 direction without any further interest and, lastly, to permit the petitioners, along with other legal heirs of late Vijayan, to sell one of the properties scheduled in Exhibit P7 notice and to pay up the dues of late Vijayan payable to the Government towards Kist amount. 4. Even according to the respondents/State Government, the total amount that is due from late K.K.Vijayan and now the legal representatives who have come on record, is more than Rupees sixty lakhs W.A.Nos.666 & 665 of 2008 - 2 - and the same is pending from last few decades. Since the Abkari dues were not paid by late Vijayan and after his death by his legal representatives, the respondents have initiated revenue recovery proceedings. Pursuant to those proceedings, the properties of the legal representatives of late K.K.Vijayan is brought to sale. The Revenue Recovery Officer has conducted the public auction of three items of properties noticed in Exhibit P7. The properties were sold on 11.1.2007. The 6th respondent is the successful bidder. Pursuant to the conditions attached to the auction notice, the 6th respondent has deposited 15% of the bid amount on 11.1.2007 and the balance of 85% of the amount on 8.2.2007. 5. The petitioners were fully aware of the auction sale that was conducted and the confirmation of sale that was made in favour of the 6th respondent. In spite of it, the petitioners had only questioned the revenue recovery notice (Exhibit P7) issued by the Tahsildar to recover the amounts due towards the Abkari dues. Since the petitioners had suppressed the material facts and since they did not approach this Court with clear heart, mind and hands, that itself would disentitle them in getting the extra ordinary and discretionary relief of this court. Be that as it may. 6. Since the properties that were sold was not confirmed by W.A.Nos.666 & 665 of 2008 - 3 - the authorities under the Revenue Recovery Act, the 6th respondent was constrained to file W.P.(C).No.28273 of 2007. 7. The learned Single Judge has disposed of both the writ petitions. While disposing of the writ petition filed by the legal representatives of late K.K.Vijayan, the learned Single Judge has observed, that by Exhibit P5 communication, certain reliefs were granted to one of the partners of the firm and therefore, late K.K.Vijayan is also entitled to such relief. The reasoning of the learned Single Judge is that, Exhibit P5 communication ought to have been taken note of by the State Government and the same reliefs should have been also given to the legal representatives of late K.K.Vijayan and, therefore, till such time no further steps need to be taken by the authorities to confirm the sale in favour of the 6th respondent. 8. In order to appreciate the reasoning of the learned Single Judge, in our view, it would be appropriate to extract, in extenso, Exhibit P5 communication issued by the State Government. It is as under: “GOVERNMENT OF KERALA Revenue (S) Department, Thiruvananthapuram No.57894/s1/01/RD Dated: 29.12.2001 From The Secretary to Government. W.A.Nos.666 & 665 of 2008 - 4 - To Shri.K.K.Vijayan, Kaithavalappil Veedu, Nayarambalam, Kochi Ernakulam. Sir, Sub: RR - Kist arrears - request to accept ¼ of the total dues - reg. Ref: 1. Your petition dt.19.1.2000 addressed to the Secretary to Government, Revenue Department. 2. Your petition dt.1.6.2001 addressed to the Minister (Rev). ---- I am to invite your attentions to the references cited and to inform that the District Collector, Ernakulam has instructions to accept from you the remittance of ¼ of the total dues towards Kist arrears. In this connection I am also to inform you that all the defaulters will be individually and collectively responsible for the outstanding dues, provided the arrears could not be realised in full. Yours faithfully, B.Raveendran Nair Under Secretary For Secretary to Government”. 9. The communication of the State Government is dated 29.12.2001. In that, it is stated, that, the District Collector, Ernakulam has instructions to accept from late K.K.Vijayan the remittance of 1/4th of the W.A.Nos.666 & 665 of 2008 - 5 - total dues towards Kist arrears. It is also stated that Vijayan and all the other partners of the firm, who are defaulters, are individually and collectively responsible for the outstanding dues, provided the arrears could not be realised in full. 10. It is the case of Vijayan and thereafter his legal representatives that the said communication was not received by them and that document came to light only in the statement of objections filed by the respondents and, therefore, they must be given an opportunity to request the State Government to extend the benefit of Ext.P5 communication and allow them to deposit the amount stated in the communication. 11. Ext.P5 communication is of the year 2001. If, for any reason, the said document was available, the legal representatives of late K.K.Vijayan, who had approached this Court earlier on a number of occasions, would have produced the same and would have submitted to this Court to grant them the benefit of that communication, so that they could pay up the arrears of Abkari dues. That was not done by them at any point of time. It so happens that at every stage whenever proceedings are initiated to recover the Abkari dues, one or the other legal representatives of late K.K.Vijayan would approach this Court on one pretext or the other, and obtain an interim order and, thereby, effectively W.A.Nos.666 & 665 of 2008 - 6 - postpone the recovery of Abkari dues from late K.K.Vijayan. 12. In our view, since the communication was of the year 2001, and since nothing was done by Sri.Vijayan and thereafter by his legal representatives, in our view, petitioners were disentitled for discretionary relief of this court. Further, petitioners cannot plead non-communication of Ext.P5 communication at this belated stage. It is understandable if the respondents were initiating recovery proceedings against the petitioners alone. Sri.Vijayan was one of the partners of a firm which had conducted the abkari business. Respondents were trying to recover the amounts due from all the partners of the firm. If any one of the partners had taken advantage of Ext.P5 communication, nothing prevented late Vijayan and thereafter his legal representatives in taking steps to comply with Ext.P5 communication. In view of all this, in our view, there was no need or necessity for the learned Single Judge to have directed the State Government to consider Ext.P5 and give relief to the petitioners. 13. Even otherwise also, the Revenue Recovery Officers have initiated proceedings and they have sold the properties in auction and in the absence of a challenge to those proceedings, the learned Single Judge ought not have granted the relief sought for by the petitioners in the writ petition. W.A.Nos.666 & 665 of 2008 - 7 - 14. It is relevant, at this stage, to state that the sale that was made in favour of the 6th respondent was questioned by one of the legal representatives of late K.K.Vijayan before the District Collector as provided under the Act and their claim is also rejected. Therefore, there is no impediment for the Revenue Recovery Officer to confirm the sale in favour of the the 6th respondent. 15. In view of the above discussion, in our view, the learned Single Judge was not justified in granting the relief sought for by the petitioners in W.P.(C).No.4306 of 2007. Accordingly, the order passed by the learned Single Judge in that writ petition requires to be set aside. Consequently, the prayer made by the petitioner in W.P.(C). No.28273 of 2007 requires to be granted. 16. Accordingly, we pass the following: Order (i) W.A.No.666 of 2008, arising out of the orders passed by the learned Single Judge in W.P.(C).No.4306 of 2007, is allowed. The orders passed by the learned Single Judge is set aside. (ii) W.A.No.665 of 2008, arising out of the orders passed by the learned Single Judge in W.P.(C).No.28273 of 2007, is allowed and the impugned order is set aside. W.A.Nos.666 & 665 of 2008 - 8 - (iii) Now, a direction is issued to Special Tahsildar (R.R.), Fort Kochi, to execute the sale deed in favour of the appellant - M.V.Jose, S/o.Varghese - as expeditiously as possible, at any rate, in one month's time from the date of receipt of a copy of this court's order. (iv) In view of the orders passed in the Writ Appeals, all pending interlocutory applications are closed. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge