IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 6274 of 2008(V) ------------------------------------- PETITIONERS: --------------------- 1. T.D.PRAKASHAN, AGED 49 YEARS, S/O.LATE T.K.DAMODHARAN, THACHAPARAMBIL HOUSE, POOCHAKKAL P.O., CHERTHALA. 2. T.D.MANI, AGED 43 YEARS, S/O.LATE T.K.DAMODHARAN, THACHAPARAMBIL HOUSE, POOCHAKKAL P.O CHERTHALA. BY ADVS. MR.M.G.KARTHIKEYAN, MR.NIREESH MATHEW. RESPONDENTS: ------------------------ 1. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 2. THE ASST.EXCISE COMMISSIONER, ALAPPUZHA. 3. THE DISTRICT COLLECTOR, ALAPPUZHA. 4. THE TAHSILDAR, CHERTHALA, ALAPPUZHA DISTRICT. 5. THE DEPUTY TAHSILDAR (RR), CHERTHALA, ALAPPUZHA DISTRICT. 6. THE DISTRICT COLLECTOR, COLLECTORATE P.O, KAKKANADU, ERNAKULAM DISTRICT. W.P.(C). NO.6274/2008-V: 7. MEENA ASOKAN, CHARANKATTU HOUSE, MARARIKULAM NORTH P.O., ALAPPUZHA DISTRICT. 8. C.SACHIDANANDAN, CHARANKATTU BUNGLOW, CHERTHALA SOUTH P.O., CHERTHALA, ALAPPUZHA DISTRICT. 9. S.SIVAJI, BHAVANI MANDIRAM, MARARIKULAM NORTH P.O., CHERTHALA, ALAPPUZHA DISTRICT. 10. AJITHA MOHAN, GOVINDALAYAM, PALLIPPURAM P.O., CHERTHALA, ALAPPUZHA DISTRICT. 11. P.T.PRASAD, PARASSERIL HOUSE, NORTH PARAVUR P.O. ERNAKULAM DISTRICT. 12. THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA. 13. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 14. P.T.VENU, PANAMBADACHIRA HOUSE, S.N.PURAM P.O., CHERTHALA, ALAPPUZHA DISTRICT. R1 TO R6, R12 & R13 BY GOVT. PLEADER SMT. SUDHA DEVI, R8 BY ADV. MR.C.S.MANILAL, R14 BY ADV. MR.P.PARAMESWARAN NAIR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.GIRI, J. ------------------------------------ W.P.(C).No.6274 of 2008 ------------------------------------ Dated this the 2nd day of April, 2009. JUDGMENT The petitioners are the legal heirs of one T.D.Thampi, who was a co-licensee along with respondents 7 to 11 for the conduct of arrack shop No.58 to 72 of Cherthala Excise Range. The dues under the Abkari Act were not settled in its entirety by the licensees. When there was default, certain properties that had been offered by the licensees as solvency and some other properties were brought to sale. It is submitted that the following amounts were recovered from them. 1. Sachidanandan Rs.9,34,573/- 2. T.D.Thampi Rs.6,69,098/- 3. Sivaji Rs.72,776/- 4. Meena Asokan Rs.4,44,097/- 5. Ajitha Mohan Rs.4,16,362/- 6. P.T.Prasad Rs.30,000/- 2. T.D.Thampi is the predecessor in interest of the petitioners. The amount recovered from T.D.Thampi was partly by sale of the property, which he had offered as security. Thereafter steps were taken by the department for recovery of the balance amount by sale of the other assets, which are in the hands of the legal representatives and accordingly, W.P.(C).No.6274 of 2008 :: 2 :: they proceeded against an extent of 20.24 Ares, as evidenced by Ext.P1 Revenue Recovery notice. Ext.P2 representation was filed by the petitioners, inter alia, contending that there are still properties offered by the other licensees as solvency and recovery proceedings may be taken against those properties and the properties belonging to the petitioners, obtained by them on succession from T.D.Thampi, may not be disturbed until exhausting other securities. By Ext.P3, this court directed Ext.P2 representation to be considered by the 1st respondent. The Joint Excise Commissioner, thereupon, heard the parties and passed Ext.P4 order rejecting the request made by the petitioners on the ground that once the requisition for Revenue Recovery has been made, the Revenue Authorities have to recover the same in such manner as they deem proper. It seems that this expression of opinion was made, in the course of rejecting an application for interim relief, in the matter of sale proposed to be made pursuant to Ext.P2. 3. The petitioners were then served with Ext.P5 notice by the Tahsidlar for sale of the property mentioned therein. The petitioners then W.P.(C).No.6274 of 2008 :: 3 :: approached this court with W.P.(C)No.14887/07 challenging the proposal. Stay of proceedings was granted. Thereafter, the aforesaid writ petition was taken up along with other writ petitions filed by the other licensees and ultimately by Ext.P6 common order dated 4.6.2007 this court directed to attach the properties to be sold simultaneously. 4. The properties mentioned in Ext.P5 were brought to sale on 13.8.2007. The 14th respondent purchased the property for Rs.21.80 lakhs. It seems that an amount of Rs.3,27,000/- was paid on 13.8.2007 as advance and it is now seen from the counter affidavit filed by the 14th respondent that the balance was also paid. 5. On the date immediately following the date of sale i.e. 14.8.2007, the petitioners preferred an application Ext.P9 before the District Collector under Section 53 of the Revenue Recovery Act. But, during the pendency of the application, the Revenue Divisional Officer, Alappuzha, the 12th respondent herein, proceeded to pass an order confirming the auction in favour of P.T.Venu, Panambadachira, Cherthala by Ext.P10 dated 31.01.2008. The petitioners were still under the W.P.(C).No.6274 of 2008 :: 4 :: impression that separate order of confirmation will have to come and that this will be only after the disposal of Ext.P9 petition. The petitioners challenged Ext.P10 before the Commissioner for Land Revenue, by way of a statutory revision, Ext.P11. This was rejected by the Commissioner as evidenced by Ext.P15 order. The petitioners challenge Exts.P10 and P15 in this writ petition. They have prayed for the following reliefs: a) Call for the records leading to Exts.P1, P5, P7, P10 and P15 and quash the same by issuing a writ of certiorari or other appropriate writ, order or direction. b) Call for the records leading to Ext.P11 and quash the same by issuing a writ of certiorari or other appropriate writ, order or direction. c) Declare that proceedings in Exts.P1, P5, P7,. P10 and P15 in respect of the properties owned by late Sri.T.D.Thampi, the brother of the petitioners, not offered as security, are liable to be kept in W.P.(C).No.6274 of 2008 :: 5 :: abeyance till the proceedings for the attachment and sale of the properties of respondents 7 to 11, offered as security by producing solvency certificate, for the conduct of the arrack shop Nos.58 to 72 of Cherthala excise range for the abkari year 1993-94 are exhausted. d) issue a writ of mandamus or other appropriate writ, order or direction commanding the 11th respondent to confirm the sale of the properties of respondents 7 and 8 covered by Ext.P8 proceedings at the earliest. e) Issue a writ of mandamus or other appropriate writ, order or direction commanding the 13th respondent to consider and pass orders on Ext.P12 revision petition and Ext.P13 stay petition filed against Ext.P10 order passed by the 12th respondent at the earliest; and f) grant such other and further W.P.(C).No.6274 of 2008 :: 6 :: reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 6. A counter affidavit has been filed by the Government as also by the Auction Purchaser. 7. I also think it is necessary and appropriate to refer to the fact that the petitioners had, in July, 2008, filed an application for stay of further proceedings pursuant to Exts.P5, P10 and P15 as I.A.No.7992/08. This court granted an interim order for a period of one month, on 30.7.2008. Obviously, the stay order was passed by this court after hearing the State as also the Auction Purchaser. The interim order passed on 30.7.2008 was extended until further orders on 3.9.2008. It was then modified only on 12.12.2008, wherein this court directed that the sale will be subject to the result of the writ petition. 8. Insofar as the validity of the sale held on 13.8.2007 is concerned, the appropriate remedy for the owner of the property, aggrieved by the revenue sale thereof is to move an application before the District Collector under Section 53 of the RR Act. This was done by the petitioners by W.P.(C).No.6274 of 2008 :: 7 :: filing Ext.P9. I find it difficult to comprehend as to how the 12th respondent the Revenue Divisional Officer proceeded to confirm the sale during the pendency of a petition for setting aside the sale filed by the owner of the property invoking Section 53 of the RR Act. In fact, there is a clear interdiction against the same under Section 54 of the Revenue Recovery Act, which reads as follows: “54.Order confirming or setting aside sale:-- One the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under Section 52 or Section 53 or if any such application has been made and rejected, the Collector shall make an order confirming the sale: Provided that if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale.” 9. The order confirming the sale before W.P.(C).No.6274 of 2008 :: 8 :: disposal of the application to set aside the sale preferred under Section 53 of the Act will have to be treated as clearly illegal and unjustified. 10. The commissioner also committed an illegality in not referring to the said contention, which was clearly raised before him. The order passed by the Commissioner is also unsustainable. The competent authority, the District Collector, will have to consider afresh the application filed by the petitioners under Section 53 of the Act. 11. Learned counsel for the Auction Purchaser submits that the Auction Purchaser had proceeded to pay the full amount within the time stipulated as evidenced by Ext.R14(a) and was also issued a certificate of sale under Section 56 of the Act, as evidenced by Ext.R14(b). Ext.R14(b) is issued on 22.7.2008. 12. Possession of the property was handed over to the Auction Purchaser on 6.12.2008. As I stated above, there was an order of stay of proceedings pursuant to Exts.P5, P10 and P15, in force from 30.7.2008 till 12.12.2008, on which date, the order was modified making the order subject to the result of the writ petition. In such a case, W.P.(C).No.6274 of 2008 :: 9 :: the respondents have committed an illegality in handing over the property to the Auction Purchaser on 6.12.2008. They should have waited till the disposal of the writ petition or at least could have sought for a clarification in this regard from this court. 13. But the Auction Purchaser cannot be held responsible for the issuance of the sale certificate on 22.7.2008. He would have produced the stamp papers. It is not clear whether the certificate of sale has been engrossed on non-judicial stamp paper. 14. I am of the view that in circumstances where the confirmation of the sale and the order passed by the Commissioner affirming the same are illegal, the parties must be relegated to the position obtaining on the date on which the application for setting aside the sale was presented before the District Collector. But, since the petitioners had moved for stay only on 30.7.2008 and an order was passed only on the said date and a certificate of sale had been issued on 22.7.2008, I make it clear that if the Auction Purchaser had remitted stamp duty for the purpose of the W.P.(C).No.6274 of 2008 :: 10 :: certificate of sale, the same must be reimbursed by the petitioners. As to whether the sale will have to be confirmed will depend upon the order to be passed by the District Collector on Ext.P10. 15. The petitioners have prayed for a direction to the respondents to take a decision to proceed against the solvency properties in the possession of the co-licensees in the first instance and then only to proceed against the individual property inherited by the legal heirs viz., the petitioners. In my view, the said aspect may be considered by the Government and for this purpose, the petitioners may file a comprehensive representation before the Secretary to Government pointing out these aspects within one month from today and if it is so done and necessary documents are produced, the Government shall, after giving notice to the petitioners herein, as also the other co-licensees, take a decision in this regard and communicate the same to the Revenue Officials. 16. In the result, the writ petition is disposed of with the following directions: i) Exts.P10 and P15 are quashed. W.P.(C).No.6274 of 2008 :: 11 :: ii) The District Collector, the 5th respondent shall consider and pass orders on Ext.P9 application, after notice to the petitioners as also the Auction Purchaser, 14th respondent. iii) If the Auction Purchaser has remitted the stamp duty for engrossing the sale certificate in his favour, the petitioners shall reimburse the Auction Purchaser the said stamp duty and registration expenses, if any, remitted, within one month from the date of intimation from the 14th respondent. iv) The 14th respondent shall intimate the petitioners of the quantum of the stamp duty remitted by him with proof of actual remittance. The petitioners shall be bound to reimburse the 14th respondent of such stamp duty. v) If the petitioners file a representation before the Secretary to Government, Taxes Department, in the manner indicated herein above, within two months from today, the Secretary, Taxes Department shall proceed to take a decision on the request made by the petitioners, after notice to the co-licensees within three months from the date of the representation. vi) If the District Collector takes W.P.(C).No.6274 of 2008 :: 12 :: steps to set aside the sale held on 13.8.2007, the amount deposited by the 14th respondent shall forthwith be refunded to the Auction Purchaser. The petitioners' challenge against Ext.P11 order passed by the Commissioner in favour of 8th respondent is kept open to be agitated, if necessary, after the disposal of the representation by the Secretary, Taxes Department as indicated above. Sd/- (V.GIRI) JUDGE sk/ //true copy//