IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 17751 of 2004(L) -------------------------- PETITIONER(S): --------------- R.NARAYANA SWAMY, S/O. RAMASWAMY CHETTIAR, YAMINI COTTON COMPANY 9, PALANIAPPA APARTMENTS, PALANIAPPA NAGAR, TRICHY ROAD, RAMANATHAPURAM, COIMBATORE-45. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN HARIHARAN RESPONDENT(S): --------------- 1. TAHSILDAR (RR) CHITTUR, PALAKKAD DISTRICT. 2. SALES TAX OFFICER, III CIRCLE, PALAKKAD. 3. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND LAND REVENUE, THIRUVANANTHAPURAM. 4. RAMESH, S/O. GANGADHARAN, MUNSIF CHALLA, VELANTHAVALAM, CHITTUR TALUK, PALAKKAD DISTRICT. 5. RAJENDRAN, S/O. NARAYANASWAMY NAIDU, MEDICAL STORE, R/126, KOVAIPUDUR, COIMBATORE, TAMILNADU. 6. SASIKUMAR, S/O. RAMAKRISHNAN, ATTAYAMPATHY VILLAGE, VELANTHAVALAM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV.SRI.K.P.PRADEEP, Spl. GOVERNMENT PLEADER FOR TAXES SRI.P.SANTHALINGAM, SENIOR ADVOCATE FOR R4,5,6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17751 of 2004(L) APPENDIX EXHIBITS FOR THE PETITIONER : Ext.P1 : COPY OF THE DOCUMENT NO.19/2001 CERTIFYING the CONFIRMATION PROCEEDINGS OF the REVENUE DIVISIONAL OFFICER, PALAKKAD PASSED ON 5.10.2000 Ext.P2 : COPY OF THE DOCUMENT NO.20/2001 CERTIFYING the CONFIRMATION OF AUCTION BY THE REVENUE DIVISIONAL OFFICER, PALAKKAD, OZHALAPATHY Ext.P2(a) : COPY OF THE DECLARATION OF LAWFUL SUCCESSION OF PURCHASE OF PROPERTY TO THE PURCHASE ISSUED BY THE R.D.O., PALAKKAD ON 28.3.2001 Ext.P3 : COPY OF THE PROCEEDINGS DATED 24.3.2001 ISSUED BY THE COMMISSIONER OF LAND REVENUE DEPARTMENT. Ext.P4 : COPY OF THE JUDGMENT MADE IN O.P.22891/02 Dtd.12.8.02 OF the HON'BLE HIGH COURT OF KERALA Ext.P5 : COPY OF THE ORDER PASSED BY DISTRICT COLLECTOR IN B5 54779/94(1) Dtd.2.12.02 AND SIGNED ON 8.1.03. Ext.P6 : COPY OF THE MEMORANDUM OF REVISION Dtd.10.2.03 FILED AGAINST Ext.P5 ORDER Ext.P7 : COPY OF THE ORDER PASSED BY THE KERALA AGRICULTURAL AND SALES TAX APPELLATE TRIBUNAL ON 16.10.02. Ext.P8 : COPY OF the ORDER MADE IN LR.(B5) 7506/03 Dtd.1.4.2004 Ext.P9 : COPY OF the NOTICE ISSUED under Section 36 OF THE RR ACT Dtd.30.4.1999 ISSUED by the TAHSILDAR (revenue recovery), CHITTUR Ext.P10 : COPY OF the JUDGMENT IN OP NO.18687/1999 Dtd.23.7.1999 Ext.P11 : COPY OF the OTICE Dtd.12.7.1999 ISSUED BY THE 1st RESPONDENT PROPOSING TO SELL THE PROPERTIES IN AUCTION Ext.P12 : COPY OF the ORDER dtd.8.10.1999 PASSED BY THE APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, PALAKKAD, IN STA Nos.481/1997, 482/1997 AND 849/1998 dtd.8.10.1999 Ext.P13 : COPY OF THE ORDER PASSED BY THE SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD ON 17.1.2000 Ext.P14 : COPY OF THE DETAILS OF RR CASES INITIATED AGAINST the PETITIONER AND THE DTAILS OF AMOUNTS REMITTED BY THE PETITIONER AS ISSUED BY THE RR TAHSILDAR, CHITTUR ON 6.3.2009, INCLUDING THE DETAILS OF PROPERTY ATTACHED FROM THE PROPERTY OF the PETITIONER. EXHIBITS FOR THE RESPONDENTS : Ext.R5(a) : COPY OF THE CONFIRMATION OF SALE NO. S-7268/00(2) dtd.28.3.01 ISSUED BY THE REVENUE DIVIONAL OFFICER, PALAKKAD WP(C).No. 17751 of 2004(L) Ext.R5(b) : COPY OF THE CONFIRMATION OF SALE NO. S-7268/00(1) dtd.28.3.01 ISSUED BY THE REVENUE DIVIONAL OFFICER, PALAKKAD Ext.R5(c) : COPY OF THE ORDER FORM 17 NO. S 7268/00 dtd.29.3.01 ISSUED BY THE REVENUE DIVIONAL OFFICER Ext.R5(d) : COPY OF THE ORDER FORM 18-A NO. S 7268/00 dtd.28.3.01 ISSUED BY THE REVENUE DIVIONAL OFFICER Ext.R5(e) : COPY OF THE POSSESSION CERTIFICATE NO.720/03 dtd.31.12.03 ISSUED BY THE VILLAGE OFFICER, OZHALAPATHY Ext.R5(f) : COPY OF THE POSSESSION CERTIFICATE NO.722/03 dtd.31.12.03 ISSUED BY THE VILLAGE OFFICER, OZHALAPATHY Ext.R5(g) : COPY OF THE POSSESSION CERTIFICATE NO.3/04 dtd.1.1.04 ISSUED BY THE VILLAGE OFFICER, OZHALAPATHY Ext.R5(h) : COPY OF THE TAX RECEIPT OF BOOK NO.408, RECEIPT NO.3505101 dtd.31.12.03 SIGNED BY THE VILLAGE OFFICER, OZHALAPATHY Ext.R5(i) : COPY OF THE TAX RECEIPT OF BOOK NO.407, RECEIPT NO.3505004 dtd.29.12.03 SIGNED BY THE VILLAGE OFFICER, OZHALAPATHY Ext.R5(j) : COPY OF THE TAX RECEIPT OF BOOK NO.407, RECEIPT NO.3505005 dtd.29.12.03 SIGNED BY THE VILLAGE OFFICER, OZHALAPATHY //TRUE COPY// P.A.TO JUDGE ami/ C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.17751 of 2004 ------------------------------ Dated this the 19th day of August, 2010 J U D G M E N T ---------------------- This writ petition is filed challenging Exts.P2, P5 and P8 orders issued respectively by the Revenue Divisional Officer, District Collector and Land Revenue Commissioner. The issue relates to sale of certain immovable properties belonging to the petitioner, under a revenue recovery proceedings initiated realization of arrears of sales tax. 2. On 28.7.1999, 1.25 cents of land comprised in Sy.No:79/4 in Ozhalapathy village in Chittur Taluk was sold in auction to the 5th respondent for a sum of Rs.2,41,000/-. On the same day another extent of 2 cents of land comprised in the same survey number was sold to one Sri.Chakrapani S/o.T.V.Raghavan. The above said revenue recovery sales were conducted for realization of sales tax arrears pertaining to the years 1993-94 and 1994-95, amounting to Rs.6,78,452/-. Before conducting the sale, notice under Section 36 of the Kerala Revenue Recovery Act (for short the W.P.(C).17751/04 -2- Act) was issued to the petitioner, which he had acknowledged on 6.5.1999. Initially the sale in question was posted on 28.6.1999 and it was adjourned for want of sufficient bidders. According to the 1st respondent, notice in form-16 with respect to sale scheduled on 28.7.1999 was also issued to the petitioner by registered post and it was also affixed at his residence. Publication of the notice was also done at, the Village Office, the Panchayat Office and at the site. Five days prior to the date of sale the petitioner had approached this court in O.P.No.18687/99. Through Ext.P10 judgment this court directed the Appellate Assistant Commissioner, Commercial Taxes, Palakkad to consider and dispose of a stay petition filed along with the appeal filed before that authority, challenging the order of assessment. The recovery proceedings was directed to be kept in abeyance till the disposal of the stay petition by the appellate authority. It is evident that Ext.P5 produced in that writ petition is the copy of the auction notice dt.12.7.1999 issued to the petitioner. The said notice is produced as Ext.P11 in this writ petition. It is evident that the sale was conducted on 28.7.1999, since Ext.P10 judgment was not produced before the 1st respondent. Subsequently the 1st respondent filed a review petition before this court as R.P.No.334/1999. It was pointed out W.P.(C).17751/04 -3- that, the sale in question pursuant to Ext.P11 notice was conducted for realization of arrears pertaining to the years 1993- 94 and 1994-95, and that the appeal alleged to have been filed before the appellate authority pertains to the year 1992-93. Therefore it was contended that the sale conducted was not with respect to realization of amounts due for the year 1992-93. In the meanwhile, the auction purchasers have also approached this court by filing O.P.Nos.8573/2000 & 8586/2000 seeking directions for conformation of the auction sale. The review petition as well as the above said two writ petitions were disposed of by this court through judgment dt.13.6.2000, holding that the sale conducted in accordance with Ext.P11 notice (Ext.P5 in O.P.18687/99) is in order. The respondents are given liberty to confirm the sale if the bidders have paid the entire amounts and if it is otherwise in order. On the basis of the above said judgment, the Revenue Divisional Officer had confirmed the sales on 5.10.2000. Sale Certificates were executed and registered as per Document Nos.19/2001 and 20/2001 of the Sub Registrar Office, Kozhinjambara. 3. Another item of property having an extent of 62.5 cents comprised in Sy.No.75/3 in the same village was also proceeded against for realization of a sum of Rs.11,79,239/- with W.P.(C).17751/04 -4- respect to arrears of sales tax and penalty due from the petitioner. The said property was sold in auction on 16.1.2001 in 3 lots, to respondents 6, 4 and 5 respectively. Meanwhile the Appellate Assistant Commissioner, Palakkad as per order in STA.No.5960/01 dt.9.2.01 stayed collection of balance tax and surcharge due for the years 1993-94 and 1994-95 on the condition of the petitioner paying a sum of Rs. 1 lakh and Rs.10,000/- towards disputed tax and surcharge due for the years 1993-94, and Rs.2000 towards tax due for the year 1995- 96. But the petitioner failed to comply with those conditions and the sale conducted on 16.1.2001 was confirmed through proceedings of the Revenue Divisional Officer, Palakkad dt.3.3.2001. The petitioner approached this court by filing O.P.No.6515/01 and through judgment dt.7.3.2001, the Appellate Assistant Commissioner was directed to dispose of those appeals and till that time further proceedings of the revenue recovery was stayed. The Appellate Assistant Commissioner had dismissed those appeals through order dt.10.12.2001 and hence the confirmation was given effect. Sales certificates were executed and registered in favour of the purchasors as per document Nos.386/02, 385/02 and 384/02 of S.R.O., Kozhinjambara. W.P.(C).17751/04 -5- 4. Against the sale conducted on 28.7.1999, the petitioner filed revision before the Government on 23.3.2001. As per Ext.P3 letter the Government have forwarded the said revision to the District Collector, Palakkad since he is the competent authority. Meanwhile the petitioner had approached this court in O.P.No.22891/02 and through judgment dt.12.8.2002 the District Collector was directed to dispose of that revision petition within a time limit. It is evident from the records that, challenging the sale conducted on 16.1.2001 the petitioner filed revision petition before the Land Revenue Commissioner, which was in turn disposed of remanding the matter for consideration and disposal by the District Collector. The District Collector disposed of both the revision petitions through orders issued on 2.12.2002 as per reference Nos.B5.54779/94 (1) dt.2.12.2002 and B5.54779/94 (2) dt.2.12.2002. Ext.P5 produced in this writ petition is the order of the District Collector pertaining to challenge against the sale conducted on 28.7.1999. The petitioner has not produced second order as an exhibit in the writ petition. According to him, he had received only Ext.P5 order. 5. From Ext.P5 it is evident that the sale conducted on 28.7.1999 was challenged mainly on the ground that the W.P.(C).17751/04 -6- petitioner had not received any notice before the sale. The District Collector, on a perusal of the records of the 1st respondent, found that notice with respect to the sale conducted on 28.7.99 was issued to the petitioner by registered post and the receipt was acknowledged by the petitioner. The said notice is Ext.P11. It is pointed out by the District Collector that the petitioner had produced the said notice as Ext.P5 in O.P.16867/99. It is clear from Ext.P10 judgment that the conclusions arrived by the District Collector in this regard is true and correct. The District Collector further observed that the sale notice was also produced in O.P.22891/02 as Ext.P1. Further contention raised before the District Collector was based on the interim stay order granted by this court in O.P.No.18678/99. The District Collector found that the stay order was having no effect since the sale was with respect to realisation of arrears pertaining to the years 1993-94 and 1994-95 and not in relation to arrears for 1992-93. It is also noticed that this fact was clarified by the judgment in R.P.No.334/1999 and that the sale was confirmed in compliance with the directions issued by this court in the judgment in the review petition. Petitioner had raised a serious contention before the District Collector relying on the provisions of Section 69 of the Act contending that there W.P.(C).17751/04 -7- was no proper service of notice on the petitioner with respect to the sale in question. The District Collector observed that provisions of Section 69 relates to procedure for recovery of public revenue due on land, when the defaulter or surety resides or holds property outside the District, and that procedure is not applicable in the case at hand. 6. Aggrieved by the orders passed by the District Collector, the petitioner filed Ext.P6 revision before the Commissioner of Land Revenue, the 3rd respondent herein. Ext.P8 is the order passed by the 3rd respondent disposing the revision petition. It is observed by the 3rd respondent that the authorities below have acted on the basis of valid requisition and that there is no material irregularity with respect to service of statutory notice. It is further observed that there is no violation with respect to the conduct of sale or confirmation of the auction sale as per the procedure contemplated under the Act. The view taken by the District Collector that Section 69 has no application, has been upheld by the 3rd respondent and the request for setting aside the sale was declined. 7. Heard Sri.G.Hariharan, learned counsel for the petitioner, Sri.K.P.Pradeep, learned Government Pleader and Senior Advocate Sri.P.Santhalingam appearing on behalf of W.P.(C).17751/04 -8- respondents 4 to 6. Elaborate arguments were advanced by Sri.G.Hariharan assailing Exts.P5 and P8 orders. The material irregularity with respect to sale pointed out is lack of proper service of notice of sale conducted on 28.7.1999. It is contended that at the time when Ext.P11 notice was issued the petitioner was residing at Pollachi in Tamilnadu State and that nobody was residing at the house at Velanthavalam in the property which is auctioned. In order to substantiate the said contention, learned counsel had pointed out Ext.P11 notice which is seen addressed to the petitioner in his address at Pollachi in Tamilnadu. Case of the petitioner is that Ext.P11 notice was not served on the address of the petitioner at Pollachi in Tamilnadu. According to him, he came to know about the said notice only when the same was affixed at the site at Velanthavalam. But as noticed above, the petitioner had produced Ext.P11 notice in O.P.No.16867/99 before this court as Ext.P5. The said writ petition was disposed of as per Ext.P10 judgment on 23.7.99, i.e. five days prior to the date of the sale. Hence it is crystal clear that the petitioner was having due notice regarding the auction which was scheduled to 28.7.1999. But the petitioner is raising a technical argument that actual service of notice at the place of residence, which was admittedly known to the 1st respondent, is lacking in this case. W.P.(C).17751/04 -9- He relies on provisions of Section 69 of the Act to contend that the sale has been vitiated since there was lack of service of notice at the place of residence of the petitioner. On a perusal of Section 69 it is evident that the said provision relates to procedure for recovery of public revenue due on the land when the defaulter or surety resides outside the District. It also deals with procedure for recovery of dues other than public revenue dues on land. Section 69(1) says that when the defaulter or his surety resides or holds property outside the district wherein the default has been committed, then the District Collector shall forward a certificate to the Collector of the District in which the defaulter or his surety resides or holds the property. In the case at hand the arrears arose within the district of Palakkad the properties which were sold in auction also situate within the very same district. Therefore there was no necessity for resorting to the procedure contemplated under Section 69. Learned counsel also relied on Section 49 of the Act and contended that there was no proper notice served on the petitioner within 30 days of the proposed sale. It is evident that the sale conducted on 28.7.1999 was originally scheduled on 28.6.1999. Ext.P11 notice specifically mention about the sale which was posted on 28.6.1999. The sale was adjourned to 28.7.1999 only because W.P.(C).17751/04 -10- there was no bidders available. In the counter affidavit filed on behalf of the 1st respondent it is specifically mentioned that before the sale, notice under Section 49(2) was issued to the petitioner, on 21.5.1999. Hence I find no merit in the contention raised based on Section 49. Further, as pointed out above, the petitioner had approached this court on many occasions prior to the date of the sale and after the date of the sale challenging the proceedings which will indicate that he was having sufficient knowledge about the auction sales. Hence I am of the opinion that the contentions regarding lack of proper notice does not deserve merit. 8. With respect to the sale conducted on 16.1.2001 it is the contention of the petitioner that the assessments pertaining to the year 1993-94 and 1994-95 has been subsequently set aside by the Sales Tax Appellate Tribunal, Palakkad as per Ext.P7 proceedings. It is evident from Ext.P7 that the said order was passed by the Tribunal only on 16.10.2002 whereas the sale was conducted on 16.1.2001 and it was confirmed on 7.3.2001 and sale certificate was already executed and registered immediately thereafter. By virtue of Ext.P7 the assessment were set aside and the matter was remitted back to the assessing authority for issuing revised assessments. It is submitted by the W.P.(C).17751/04 -11- learned counsel for petitioner that, pursuant to Ext.P7, a revised assessment was issued and the petitioner being aggrieved by such assessments has now approached the authority seeking 'One Time Settlement' under the Amnesty Scheme declared by the Government. Contention of the petitioner is that the total sale proceeds received through the sales conducted on 28.7.1999 and 16.1.2001 will be more than the amount actually due if the request of the petitioner for allowing the Amnesty benefit is sanctioned. But it is pertinent to note that the petitioner has no contention that as on the date of the sales, there was no arrears or there was no requisition for the amounts over and above the proceeds of the sale received. Subsequent annulment of the assessments if any, may entitle the petitioner to claim refund excess amounts if any recovered. But that cannot be raised as a ground to set aside the sales which were conducted long back and confirmed by all the statutory authorities. Learned senior counsel appearing for the respondents 4 to 6 submitted that the auctioned properties are now in the possession and enjoyment of those respondents. It is contended that mutation had already been effected and they are paying land tax for such properties. Copies of land tax receipts are also produced along with the counter affidavit filed on behalf W.P.(C).17751/04 -12- of them. 9. As stated above, I am not convinced that there is any material or patent illegality or irregularity with respect to the sales conducted, which were confirmed by the appropriate statutory authorities. Therefore, I find no ground to interfere with Exts.P5 and P8. Accordingly the writ petition deserves no merit and the same is hereby dismissed. 10. It is made clear that dismissal of the writ petition or confirmation of the sale will not in any manner prejudice the petitioner to claim refund of amount if any received in excess of the final settlement of the liability. C.K.ABDUL REHIM, JUDGE. okb