IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 OP.No. 11466 of 1999(M) ----------------------- PETITIONER: --------------- 1. THONDIYIL MOHAMED ALIAS NANIPPA, AGED. 63 YEARS, S/O KUNHAMMED HAJI, RESIDING AT THONDIYIL HOUSE, NEELANCHERRY P.O., NILAMBUR TALUK, MALAPPURAM. (DIED) * ADDITIONAL PETITIONERS 2 TO 9 2. AYISHA, AGED 60 YEARS, W/O MOHAMMED, THONDIYIL HOUSE, P.O. NEELANCHERRY, VIA KALIKAVU, MALAPPURAM DISTRICT. 3. SUBAIDA, D/O - DO- R/AT -DO- 4. RUKHIYA, D/O -DO- R/AT -DO- 5. SULAIKHA, D/O -DO-, R/AT -DO- 6. KUNHIMUHAMMED, S/O -DO-, R/AT -DO- 7. SHAJIMON, S/O -DO- , R/AT -DO- 8. SALEENA, D/O LATE SURFUNNISSA, R/AT -DO- 9. FIROZ BABU, S/O -DO- , R/AT -DO- * impleaded as additional petitioners 2 to 9 as per order dated 03.08.2010 in I.A. 10554 of 2010 BY ADV. MR. A.P.CHANDRASEKHARAN, SENIOR ADVOCATE MS. PRABHA R.MENON MR. PUSHPARAJAN KODOTH MR. M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES MR. T.SETHUMADHAVAN MR. K.JAYESH MOHANKUMAR O.P. No. 11466 OF 1999 :2: RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, TRIVANDRUM 2. THE DISTRICT COLLECTOR, MALAPPURAM 3. THE TAHSILDAR (R.R.), NILAMBUR (FORMERLY MANJERI), 4. THE VILLAGE OFFICER, THURAVOOR VILLAGE, NILAMBUR TALUK. 5. P. ABDUL NAZAR, S/O KUNJALI, PUZHAKKAL VEEDU, PANDIKKADU, ERNAD TALUK. 6. THE SUB COLLECTOR, PERINTHALMANNA R1 TO R4 AND R6 BY GOVERNMENT PLEADER MR. K. SASIKUMAR R5 MR. U.K.DEVIDAS FOR R5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. 11466 OF 1999 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE INTIMATION DATED 25.5.1994 ISSUED FROM THE 3RD RESPONDENT'S OFFICE TO THE PETITIONER. EXT. P1 A : TRUE COPY OF THE INTIMATION DATED 25.5.1994 -D0- EXT. P2 : TRUE COPY OF THE ORDER NO. 30071/S5/94/RD DATED 10.6.1994 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXT. P3 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 30.6.1994 EXT. P4 : TRUE COPY OF THE ORDER OF CONFIRMATION OF SALE OF IMMOVABLE PROPERTY, ORDER NO.B 7296/97 DATED 17.12.98 ISSUED BY R6 EXT. P4 A : TRUE COPY OF -DO- ORDER NO. B7295, DATED 17.10.98 ISSUED BY THE R6 SUB COLLECTOR, PERINTHALMANNA EXT. P5 : TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE REVENUE MINISTER DATED 30.12.1998 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O. P. No. 11466 of 1999 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 30th day of August, 2010 JUDGMENT This Petition was originally filed by the deceased Thondiyil Mohammed alias Nanippa, challenging Exts. P1/P1(a) notices issued in connection with sale of the concerned property, in the course of realization of the amount due to the Bank (who is not a party) and also the subsequent proceedings, by virtue of Exts. P4 and P4(a) as to the 'confirmation of sale' ordered by the sixth respondent. Many a ground has been raised by the petitioner in the Original Petition, including that the opportunities given to the petitioner by the Government, to have the liability settled by way of installments was not properly acted upon, by accepting the installments offered by the petitioner, and the third respondent conducted sale of the property, followed by confirmation ordered by the 6th respondent, that too without hearing the petitioner, whereby the properties were bid in public auction by the 5th respondent. 2. The original petitioner and his daughter had availed two different loans of Rs.5,000/- each from the Federal Bank of Nilamboor Branch in the year 1986, on the strength of the property having an extent of 80 cents belonging to the father. Since, both the father as well as the daughter turned to be defaulters, the Bank proceeded O. P No. 11466 of 1999 : 2 : against the above mentioned property belonging to the original petitioner, in his capacity as the borrower and also in respect of another extent of 30 cents of land, which was also belonging to the original petitioner, in respect of the defaults committed by the daughter, for whom the father had stood as a surety. Because of the defaults, both the properties had to be sold in public auction, which was on 17.5.94, whereby the extent of 80 cents was sold for a total sum of Rs. 14,500/- and the other land having an extent of 30 cents, for Rs. 12,100/-, thus for a total value of Rs. 26,600/-. The properties were bid by the 5th respondent. It is stated that, subsequent to the purchase of the property by the fifth respondent, the sale was also confirmed, as per Exts. P4 and P4(a) dated 17.12.1998, which made the original petitioner to approach this Court by filing this Original Petition. 3. It is brought to the notice of this Court that, during the pendency of the above original petition, the original petitioner took his last breath, pursuant to which, the legal heirs were brought in the party array as the additional petitioners, as per the order in I.A. No. 10554 of 2010 dated 03.08.2010. The contention of the original petitioner is that, he had approached the concerned authorities by filing a petition on 20.04.1994 following by another dated 18.05.1994. After considering the same, the petitioner was permitted to clear the liability by way of 40 equal monthly installments commencing from 30.06.94 as borne by O. P No. 11466 of 1999 : 3 : Ext. P2 dated 10.06.94 issued by the Commissioner and Secretary to Government. The case of the petitioner is that, even though the petitioner approached the 3rd respondent, seeking to remit the first installment on 30.6.1994, it was not accepted, which made the petitioner to prefer Ext. P3 representation before the second respondent on the very same date, pointing out the grievance. The stand taken by the Revenue was that the property had already been sold in the meanwhile on 17.5.1994 and as such, no amount could be accepted from the petitioner. The petitioner approached the concerned Minister for Revenue, by filing Ext.P5 representation dated 30.12.1998, whereupon an order was passed by the Minister directing the second respondent to realize the entire amount due from the petitioner and to return the land and to file a report in this regard as ordered on 02.01.1999. In spite of the said order, the amount was never collected from the petitioner, despite expressing the willingness to tender the whole amount, as stated in paragraph 10 of the Writ Petition, which hence is sought to be enforced in this Writ Petition. 4. The learned counsel appearing for the 5th respondent submits that, there is absolutely no merit or bonafides in the Writ Petition and that the contents of Ext. P2 clearly reveal that the benefit was extended to the petitioner, only if there was no legal bar with regard to the granting of installments commencing from 30.6.19940 The learned O. P No. 11466 of 1999 : 4 : counsel submits that, since the sale was already completed, there was a legal bar and as such, Ext. P5 was of no consequence. It is also brought to the notice of this Court that, pursuant to the confirmation of sale, as borne by Exts. P4 and P4(a), registration had also been effected. 5. The learned Government Pleader appearing for the first respondent and other departmental authorities, with reference to the contents of the statement filed in the Original Petition and the counter affidavit filed in the review petition (which was necessitated to have the matter restored to the file earlier), submits that, many an opportunity has been given to the petitioner to satisfy the liability by way of installments, which was not utilized at all. The sequence of events has been described in detail pointing out that, there is absolutely no merit or reason for contending that the petitioner was prevented from effecting the deposits, by way of installments. 6. The learned counsel for the petitioners submits that, possession of the property concerned is still at the hands of the legal heirs of the original petitioner, but the factual possession, however is sought to be rebutted by the 5th respondent. 7. The learned counsel for the petitioners further submits that, the confirmation of the sale, as ordered by Exts. P4 and P4 (a), is quite contrary to the statutory prescription and the principle of natural justice, O. P No. 11466 of 1999 : 5 : in so far as the petitioner was never provided with an opportunity of hearing, before the 'confirmation' was effected. Reliance is also placed on the decision rendered by this Court in Mandoor Ali Vs. RDO (2007 (3) KLT 780) (paragraph 10), wherein, referring to the mandate under Section 54 of the Act, it was held that, an opportunity of hearing shall be given to the land owner, though though Section 54 does not expressly stipulate the same; which requirement does not appear to be satisfied in the present case. 8. On going by the materials on record, this Court finds that this is a matter which is to be examined by the appropriate authority, particularly, taking note of the fact that, the original petitioner had filed a representation dated '20.4.1994' i.e. prior to the date of sale effected on 17.9.94, followed by other representations as well. It was pursuant to the said representation, that Ext. P2 was passed, enabling the petitioner to clear the liability by way of installments, followed by such other consequential proceedings. Similarly, an order was passed by the concerned Minister on Ext. P5, which is sought to be relied on by the petitioners; while the course and conduct followed is vehemently opposed from the part of the 5th respondent stating that, the said representation as well as the order passed thereon cannot have any valid or binding effect at all. 9. The crucial question to be considered is whether, the O. P No. 11466 of 1999 : 6 : proceedings finalized by the concerned respondents in this case are in conformity with the mandatory requirement, as explained by this Court vide the decision cited supra. This Court finds that, this is a matter which requires to be considered by the first respondent/State Government, invoking the power under Section 82 (3) of the Kerala Revenue Recovery Act and as such, this Court does not propose to express anything on merits. If the petitioners file an application before the first respondent under Section 82 (3) within two weeks from the date of receipt of a copy of this judgment, projecting the grievance, with reference to the relevant documents/materials, the same shall be considered and appropriate orders shall be passed by the first respondent in accordance with law, after giving an opportunity of hearing to the petitioners as well as the 5th respondent. The proceedings as above, shall be finalized, as expeditiously as possible, at any rate, within 3 months from the date of receipt of the representation as aforesaid. It is made clear that, the 'status-quo' as on date shall continue till such orders are passed as above. The Original Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd