IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 26677 of 2008(A) -------------------------- PETITIONER: -------------------- K.GOPALAKRISHNAN,S/O.CHINNAN NAIR P.O.KOLATHARA,CHERUVANNUR,KOZHIKODE,PIN 673 655. BY ADV. SRI.R.RAMADAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOZHIKODE. 4. THE TAHSILDAR, REVENUE RECOVERY KOZHIKODE. BY GOVERNMENT PLEADER SRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb WP(C).No. 26677 of 2008 APPENDIX PETITIONER'S EXHIBITS:- P1:- COPY OF RECEIPTS SHOWING THE REMITTANCE OF RS.3,000/- AND RS.2,000/- P2:- COPY OF THE FORM OF PROCLAMATION OF PURCHASE OF LAND DATED 02.07.2003 ISSUED BY THE 4TH RESPONDENT P3:- COPY OF THE SALE CONFIRMED BY THE REVENUE DIVISIONAL OFFICER, KOZHIKODE P4:- COPY OF THE COMMUNICATION DATED 1.8.2007 FROM THE 4TH RESPONDENT P5:- COPY OF THE RECEIPT DATED 22.10.2007 SHOWING THE REMITTANCE OF THE AMOUNT P6:- COPY OF REPRESENTATION DATED 06.11.2007 SUBMITTED BEFORE THE 4TH RESPONDENT P7:- COPY OF THE PROCEEDINGS DATED 29.04.2008 P8:- COPY OF THE COMMUNICATION DATED 30.6.2008 FROM THE 3RD RESPONDENT P9:- COPY OF THE REPRESENTATION DATED 23.7.2008 BEFORE THE HON'BLE MINISTER FOR REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A.TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 26677 Of 2008 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 2nd day of December, 2010 JUDGMENT The issue involved in this Writ Petition is, whether the property taken over by the Government as 'bought in land' under Section 50 (2) of the Kerala Revenue Recovery Act, pursuant to the default made by the petitioner, is liable to be re-conveyed to him, admittedly when the liability to the revenue has been satisfied. 2. The sequence of events as narrated in the Writ Petition shows that the petitioner, who was running a small scale industry, engaged in manufacturing and sale of wire cut bricks and hollow bricks, had availed a loan from the Kerala Financial Corporation, on the strength of the property concerned given as security. The petitioner, because of some unforeseen circumstances turned to be a defaulter, whereupon the KFC sought to attach the properties resorting to the remedy under the Kerala Revenue Recovery Act and the attachment was effected on 22.12.2000. Later, observing that, there was some sales tax arrears to be cleared by the petitioner, the property was sought to be proceeded against at the instance of the sales tax authorities and accordingly, the 4th respondent, invoking the provisions under the Kerala Revenue Recovery Act proceeded against the properties of the petitioner in the year 2003. The liability in respect of the W.P. (C) No. 26677 of 2008 2 assessment years 1991 - '92 to 1993 - '94, which was sought to be recovered from the petitioner was stated as ` 27,384/-. The petitioner made an attempt to clear the liability by effecting some paltry payments, such as ` 2,000/- on 09.02.2000 and ` 3,000/- on 05.02.2001, as borne by Ext. P1 receipt. But, the repayments could not be effected thereafter, under which circumstances, the property having an extent of 6.500 cents was put to sale by way of public auction. The steps taken in this regard turned to be futile, as there was no bidder to purchase the property, under which circumstance, the Government decided to bid the property, invoking the power and procedure as contemplated under Section 50 (2) of the Kerala Revenue Recovery Act and accordingly, the property was bid by the Government for a notional amount of ` 1 as 'bought in land'. The said event was on 27.03.2003. Thereafter the sale was confirmed as per Ext. P3 proceedings dated 31.01.2004. 3. Nearly three years after the confirmation of the sale as aforesaid, the 4th respondent issued Ext. P4 communication dated 01.08.2007, giving an idea and impression to the petitioner that the property already taken over by the Government as 'bought in land' could be re-conveyed to him, if the entire dues to the Government, as stated therein towards the principal amount, interest and cost was satisfied, however, making it clear that, an W.P. (C) No. 26677 of 2008 3 application had to be submitted in this regard and that the authority to consider and pass appropriate orders was none other than the Government. Believing the words of the 4th respondent to be true, the petitioner decided to clear the entire liability to the sales tax department, which was quantified in Ext. P4 as ` 73,858/ and accordingly, the petitioner remitted a total sum of ` 74,687/-, due as on the date of clearance on 22.10.07, as borne by Ext. P5 receipt. After satisfying the liability as above, the petitioner preferred Ext. P6 representation before the 4th respondent for causing the property to be re-conveyed as assured in Ext. P4. 4. It appears that the representation preferred by the petitioner was admittedly forwarded by the 4th respondent for further steps to the higher authorities. Later, the petitioner was served with Ext. P8 communication dated 30.06.2008, informing that, though the petitioner had cleared the entire liability, the application preferred by the petitioner for re-conveyance could not be considered, as it was beyond the period of two years as stipulated in the existing rules/guidelines. The petitioner has approached this Court challenging Ext. P3 confirmation of sale and Ext. P8 communication turning down the request of the petitioner for causing the property to be re-conveyed. W.P. (C) No. 26677 of 2008 4 5. Heard the learned Government Pleader appearing on behalf of the respondents as well. 6. The learned counsel for the petitioner submits that the course and conduct pursued by the respondents is quite arbitrary and illegal. The petitioner was made to understand that the property would be re-conveyed to the petitioner, once the entire liability to the State was cleared, which fact as stated in Ext. P4, is not disputed by filing any counter affidavit. It is also stated that the petitioner, based on the assurance given had cleared the remaining liability as well, which was to be paid to the Kerala Financial Corporation, who had attached the property much earlier in the year 2000, who in turn has issued Ext. P7 clearance certificate in this regard. This being the position, the stand taken by the respondents cannot, but be deprecated, which hence is liable to be intercepted by this Court, submits the learned counsel for the petitioner. 7. The learned Government Pleader appearing for the respondents submits that Ext. P8 communication has been issued, taking note of the contents of the guidelines issued by the Government in this regard, specifying a period 'two years' so as to prefer an application, if at all any re- conveyance is desired. W.P. (C) No. 26677 of 2008 5 8. The issue to be considered is whether any unlawful gain is intended to be extended to the Government, by virtue of the stipulation under Section 50 (2) of the Kerala Revenue Recovery Act or whether the said provision has been incorporated to protect the interest of revenue in respect of the 'defaulted amount'. It is brought to the notice of this Court during the course of hearing that, the issue had been considered by a Division Bench of this Court earlier inn W.A. 1742 of 2009, observing that the property could be released to the owner/defaulter in the manner specified therein. By virtue of the above binding precedent, this Court finds that the petitioner is also entitled to get similar relief. 9. In the above circumstances, the impugned orders are set aside and the 3rd respondent / District Collector is directed to reconsider the application preferred by the petitioner in the light of the observations in the judgment dated 09.07.2010 passed by the Division Bench of this Court in W.A. 1742 of 2009 and pass appropriate orders, taking all consequential steps to cause re-conveyance of the property to the petitioner in accordance with law. This exercise shall be pursued and finalized, as expeditiously as possible, at any rate, within three months, from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment along with copy of the judgment in W.A. 1742 of 2009 before W.P. (C) No. 26677 of 2008 6 the District Collector within two weeks from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd