IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 27010 of 2010(A) -------------------------- PETITIONER(S): --------------- C.N.JANAKI, AGED 64 YEARS, W/O.THANKAPPAN, MEELOOTTU HOUSE, ELANTHOOR KIZHAKKEMURI, ELANTHOOR VILLAGE, PATHANAMTHITTA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.DIPU JAMES RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -01 2. THE COMMISSIONER FOR LAND REVENUE, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM -01 3. THE DISTRICT COLLECTOR, PATHANAMTHITTA, COLLECTORATE, PATHANAMTHITTA-689645 4. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE,ADOOR-691523 5. THE TAHSILDAR, TALUK OFFICE, KOZHENCHERRY, PATHANAMTHITTA DISTRICT-PIN-689645 6. M.MUHAMMED ISMAIL, ISMAIL MANZIL, VETTIPURAM ROAD, PATHANAMTHITTA PIN-689645 7. PONNAPPAN ACHARI, MELLOOTTU VEEDU, ELANTHOOR, NOW RESIDING AT MELLOOTU VEEDU, MANGARAM, KONNI VILLAGE, PATHANAMTHITTA DIST PIN - 689 691 WP(C).No. 27010 of 2010(A) *ADDITIONAL R8 TO R11 ARE IMPLEADED: R8. PONNAMMA, AGED 60 YEARS, W/O. LATE PONNAPPAN ACHARI, MELLOOTTU VEEDU, ELANTHOOR, NOW RESIDING AT KULANTHINKAL, KONNI VILLAGE, KONNI P.O. PATHANAMTHITTA DISTRICT, PIN - 689 691. R9. PRASAD, AGED 48 YEARS, S/O. LATE PONNAPPAN ACHARI, MELLOOTTU VEEDU, ELANTHOOR, NOW RESIDING AT KULANTHINKAL, KONNI VILLAGE, KONNI P.O. PATHANAMTHITTA DISTRICT, PIN - 689 691. R10. PREETHA, AGED 46 YEARS, D/O. LATE PONNAPPAN ACHARI, MELLOOTTU VEEDU, ELANTHOOR, NOW RESIDING AT KULANTHINKAL, KONNI VILLAGE, KONNI P.O. PATHANAMTHITTA DISTRICT, PIN - 689 691. R11. PRADEEP, AGED 42 YEARS, S/O. LATE PONNAPPAN ACHARI, MELLOOTTU VEEDU, ELANTHOOR, NOW RESIDING AT KULANTHINKAL, KONNI VILLAGE, KONNI P.O. PATHANAMTHITTA DISTRICT, PIN - 689 691. *(ADDL. R8 TO R11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R7 AS PER ORDER DATED 19.8.2011 IN I.A. NO.9355/2011) R1 TO R5 BY GOVT. PLEADER SRI. BIJOY CHANDRAN R7, R8 & R10 BY ADVS. SRI.M.R.RAJESH SMT.A.K.PREETHA ADV. PHILIP M.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27010 of 2010(A) APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF ORDER DATED 18.5.2007 IN CRL.R.P.1946/2007. P2. COPY OF ORDER DATED 20.2.2009 IN CR.M.A.1577/2009 P3. COPY OF NOTICE DATED 06.1.2009. P4. COPY OF JUDGMENT DATED 27.1.2009. P5. COPY OF ORDER DATED 14.5.2009. P6. COPY OF JUDGMENT DATED 25.5.2009. P7. COPY OF JUDGMENT DATED 4.8.2009. P8. COPY OF ORDER DATED 4.2.2010. P9. COPY OF ORDER DATED 17.8.2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE shg/ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.27010 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2011 J U D G M E N T In a proceedings under Section 138 of the Negotiable Instruments Act, the petitioner was convicted. The matter was taken to this Court in Criminal Revision Petition No.1946/2007, in which, this Court passed Ext.P1 judgment which reads as follows: “The revision petitioner stands convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced, as modified by the appellate court, to undergo simple imprisonment for a period of six months and to pay compensation of Rs.2,00,000/-. 2. The revision petitioner has only sought for modification of sentence and time to make the payment. In the circumstances, the sentence is modified to imprisonment till the rising of the court and to pay a compensation of Rs.2 lakhs and in default to undergo simple imprisonment for 6 months. The revision petitioner is granted six months time from today onwards to pay the compensation. The revision petitioner shall appear before Judicial First Class Magistrate Court–II, Pathanamthitta on 20.11.2007. The Crl. R.P. Is disposed of accordingly.” 2. The petitioner did not pay the compensation amount as directed by this Court in Ext.P1 judgment. Revenue recovery proceedings were initiated, for recovery W.P.(C)No.27010 of 2010 -2- of the said amount. Ext.P3 sale notice was issued. Sale was conducted on 17.01.2009. In the meanwhile, the petitioner approached this Court by filing W.P. (C) No.2446/2009, in which, by Ext.P4 judgment dated 27.01.2009, this Court directed as follows: “In view of Ext.P1 Order, learned counsel for the petitioner submits that the petitioner will move the Criminal Court. Without prejudice to the right of the petitioner to move the Criminal Court and any other remedy the petitioner has in law, the Writ Petition is disposed of.” Thereafter, the petitioner approached the criminal court again, and by Ext.P2 order the petitioner was given a further time of 10 days from 20.02.2009 as a last chance to comply with the directions in Ext.P1 order. The petitioner did not pay the amount even then. By Ext.P5 order, the Revenue Divisional Officer confirmed the sale in favour of the 6th respondent. The petitioner again approached this Court by filing W.P. (C) No.12774/2009 which was heard along with W.P. (C) No.6923/2009 filed by the 6th respondent. In the same, Ext.P6 judgment was passed holding that, in view of the submission of the learned W.P.(C)No.27010 of 2010 -3- Government Pleader that the sale was confirmed as per Ext.P5 dated 14.05.2009 issued by the Revenue Divisional Officer, Adoor nothing further remains to be considered in the writ petition filed by the 6th respondent. In respect of the petitioner's writ petition, the petitioner sought permission to withdraw the writ petition without prejudice to the right of the petitioner to challenge the order of confirmation of sale. The petitioner's appeal against the order of confirmation of sale was dismissed. The petitioner again approached this Court by filing W.P. (C) No.15668/2009 against the appellate order, in which Ext.P7 judgment was passed by this Court relegating the petitioner to the revisional remedy. Subsequently, Ext.P8 order was passed rejecting the revision petition filed by the petitioner holding that there is no irregularity in the auction sale. The petitioner approached the Government, and by Ext.P9 order, the Government also uphled the same. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: W.P.(C)No.27010 of 2010 -4- “a) to call for the records which lead to the issuance of Exts.P5, P8 and P9 and to issue a writ in the nature of certiorari or any other appropriate writ order or direction quashing the same; b) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the respondents 1 to 4 to pass fresh orders after considering the entire aspects there by setting aside the sale of the petitioner's property comprised in Sy.No.311/10-1 in Block No.11 of Elanthoor Village in Kozhencherry Taluk of Pathanamthitta district; c) to issue a writ of mandamus or any other appropriate writ, order or direction, staying all further proceedings for giving delivery of the petitioner's property comprised in Sy.No.311/10-1 in Block No.11 of Elanthoor Village in Kozhencherry Taluk of Pathanamthitta district;” 3. The petitioner challenges the sale on two grounds. First is that, the petitioner was not served with any notice under Section 7 & 34 of the Kerala Revenue Recovery Act. The second is that, the sale was conducted while the matter was pending before this Court and by Ext.P2 order this Court had granted further time to pay the amounts. 4. The respondents have not filed any counter affidavit. But they seek to support the impugned orders on the basis of exhibits produced by the petitioner herself. 5. I have considered the rival contentions in detail. 6. As far as the first contention regarding want of W.P.(C)No.27010 of 2010 -5- notice is concerned, there is no averment in the writ petition that the petitioner was not served with appropriate notices especially one under Section 34. In Ext.P3 order of the Revenue Divisional Officer, it is specifically stated that notice under Sections 7 & 34 of the Kerala Revenue Recovery Act has been served on the petitioner. As such, I do not find any merit in that contention. The 2nd contention is that, in view of Ext.P2 order passed by this Court granting extension of time by 10 days from 20.02.2009 to pay the amount, the sale conducted is invalid. As is clear from Ext.P2, that order is dated 20.2.2009 and 10 days' time was granted from that date. Admittedly, the sale in this case took place on 17.01.2009, more than a month before that date. In this connection, it must be noted that, between Exts.P1 & P2 there is a gap of almost two years. Even after obtaining Ext.P2 order, the petitioner admittedly did not pay the amount. The justification is that, by that time the sale was already over and therefore the petitioner did not pay the amount. I do W.P.(C)No.27010 of 2010 -6- not find any bonafides in that contention. The petitioner has not put forward any valid grounds for challenging the sale. All the authorities have concurrently rejected the contention of the petitioner against the sale. I do not find any infirmity in the impugned orders. As such, I do not find any merit in the writ petition challenging the sale in favour of the 6th respondent. Accordingly, the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/