IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 3728 of 2010(M) ------------------------ PETITIONER : ------------------ SURESH KUMAR, SOBHIT HOUSE, MANGADU CHERRY, MANGADU VILLAGE, KOLLAM. BY ADVS. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND RECENEU, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOLLAM. 4. THE DEPUTY TAHSILDAR (RR), KERALA FINANCIAL CORPORATION, KOLLAM. 5. THE DISTRICT MANAGER, KERALA FINANCIAL CORPORATION, KOLLAM. 6. N.KANAKA BOSE, MULAMOOTTIL HOUSE, MANGADU, KILIKOLLOOR, KILIKOLLOOR P.O., KOLLAM. * ADDITIONAL R7 IMPLEADED 7. SABU, ATTINGAL HOUSE, M MANGAD P.O., KOLLAM *IMPLEADED AS ADDITIONAL RESPONDENT 7 AS PER ORDER DATED 02/06/2010 IN I.A. NO. 6612/2010. R1 TO R4 BY GOVT. PLEADER SRI. MATHEW GEORGE VADEKKEL R5 BY ADV. SRI. A.A. ABDUL HASSAN, SC, KFC R6 BY ADVS. SRI.R.RANJITH SRI.V.V.RAJA R7 BY ADV. SRI.K.SUBASH CHANDRA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON 04/10/2010 DELIVERED THE FOLLOWING: ...2/- WP(C).No. 3728 of 2010(M) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF CONFIRMATION OF SALE OF IMMOVABLE PROPERTY ISSUED TO THE PETITIONER BY THE DEPUTY COLLECTOR (RR), KERALA FINANCIAL CORPORATION, THIRUVANANTHAPURAM, DATED 1/11/1999. EXT.P2: COPY OF THE SALE CERTIFICATE ISSUED TO THE PETITIONER BY THE DEPUTY COLLECTOR (RR), KERALA FINANCIAL CORPORATION, THIRUVANANTHAPURAM, DATED 17/12/1999. EXT.P3: COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, MANGADU DATED 01/02/2000. EXT.P4: TRUE APPLICATION SUBMITTED BY THE SIXTH RESPONDENT BEFORE THE THIRD RESPONDENT DATED 29/1/2000. EXT.P5: COPY OF THE LETTER ISSUED BY THE GOVERNMENT TO THE SIXTH RESPONDENT DATED 17/11/2003. EXT.P6: COPY OF THE REPRESENTATION SUBMITTED BY THE SIXTH RESPONDENT BEFORE THE GOVERNMENT ON 2/11/2005. EXT.P7: COPY OF THE ORDER ISSUED BY THE GOVERNMENT AS G.O.(RT) NO. 3303/2006 DATED 5/7/2006. EXT.P8: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 9386/2007 DATED 10/7/2007. EXT.P9: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 12/6/2008. EXT.P10: COPY OF THE ORDER PASSED BY THE GOVERNMENT DATED 30/12/2008. EXT.P11: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WP(C) NO. 2706/2009 DATED 11/6/2009. EXT.P12: COPY OF G.O.(MS) NO. 7/10/RB DATED 5/1/2010. RESPONDENT'S EXHIBITS: EXT.R6(a): PHOTOSTAT COPY OF THE COMMUNICATION ISSUED VIDE A TELEGRAM, ASKING THE 6TH RESPONDENT TO APPEAR ON 9.9.1999. EXT.R6(b): PHOTOSTAT COPY OF THE COMMUNICATION ISSUED THROUGH A TELEGRAM, ASKING THE 6TH RESPONDENT TO MEET THE GM ON 18.12.1999. EXT.R6(c): PHOTOSTAT COPY OF THE REPRESENTATION DATED 17.1.2000. EXT.R6(d): PHOTOSTAT COPY OF THE REPRESENTATION DATED 29.1.2000 SUBMITTED BEFORE THE DISTRICT COLLECTOR, KOLLAM. EXT.R6(e): PHOTOSTAT COPY OF THE DEMAND NOTICE DATED 2-8-1999 ISSUED TO THE 6TH RESPONDENT FROM THE OFFICE OF THE KFC, TRIVANDRUM. ...3/- WP(C).No. 3728 of 2010(M) -3- EXT.R6(f): PHOTOSTAT COPY OF THE DEMAND NOTICE DATED 1-9-1999 ISSUED TO THE 6TH RESPONDENT FROM THE OFFICE OF THE KFC, TRIVANDRUM. EXT.R6(g): PHOTOSTAT COPY OF THE COMMUNICATION DATED 31.5.2000 ISSUED BY THE DISTRICT MANAGER, KFC TO THE DISTRICT COLLECTOR, KOLLAM. EXT.R6(h): THE COMMUNICATION DATED 13.12.2000 ISSUED BY THE DISTRICT COLLECTOR, TO THE GOVERNMENT. EXT.R6(i): PHOTOSTAT COPY OF THE REPRESENTATION DATED 2.11.2005, SUBMITTED BEFORE THE GOVERNMENT. //TRUE COPY// P.S. TO JUDGE Mn C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 3728 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 4th day of October, 2010 JUDGMENT P12 order issued by the 1st respondent is under challenge in this writ petition. 2. There is a chequered history with respect to the dispute, which arises pursuant to sale of an immovable property conducted under provisions of the Kerala Revenue Recovery Act, 1968 (for short the Act). The property belonged to the 6th respondent was proceeded against for recovery of amounts due to the Kerala Financial Corporation. The sale was conducted on 4-8-1999 and the property was bid in auction by the petitioner for a sum of Rs.1,26,500/-. The sale was confirmed as per Ext.P1 dated 1-11-1999. Consequently, Ext.P2 sale certificate was executed on 17-12-1999. The petitioner had effected mutation in the revenue records, as evidenced from Ext.P3 W.P.(C) No. 3728/2010 2 land tax receipt. Thereafter, a portion of the property was sold by the petitioner to the addl. 7th respondent . 3. During January 2000, Ext.P4 petition under section 53 of the Act was filed by the 6th respondent before the District Collector, seeking to set aside the sale. The District Collector has not considered Ext.P4, obviously because the application was not filed before confirmation of the sale. The 6th respondent filed various representations before the Government on various dates like 17-1-2000, 18-1-2000, 26- 6-2000, 25-9-2000, 7-3-2001 and 23-7-2001. By Ext.P5 order dated 17-11-2003 Government rejected those representations observing that the District Collector was justified in not considering Ext.P4 in view of section 53 and that the allegations regarding in-adequacy of sale price and irregularity in payment of the bid amount are not factually correct. 4. But thereafter, in the year 2005, the Government issued Ext.P7 order based on a representation filed by the 6th respondent dated 2-11-2005, set aside the auction W.P.(C) No. 3728/2010 3 conducted on 4-8-1999 in relaxation of the relevant provisions in the Act, as a special case, and the 6th respondent was permitted to settle the outstanding liabilities. In Ext.P7 it was found that the sale was not conducted in proper manner. 5. The petitioner has challenged Ext.P7 order before this Court. In Ext.P8 judgment this Court observed that the matter should go back to the Commissioner or the Government for taking a fresh decision, because in Ext.P7 order the sale was set aside without notice to the petitioner and without hearing him. The Government was directed to re-consider the matter after affording an opportunity of hearing to the petitioner, the 6th respondent, and the person to whom a portion of the property was sold. It was made clear that the Government is not the statutory authority empowered to hear appeal, the matter should be transferred to the Land Revenue Commissioner. Accordingly, the matter was referred to the 2nd respondent, Commissioner of Land Revenue. In Ext.P9 order, the 2nd W.P.(C) No. 3728/2010 4 respondent found that the sale was conducted as per Rules and that there was no reason to believe that any foul play had occurred. The request for setting aside the sale was therefore declined. 6. Aggrieved by Ext.P9, the 6th respondent filed a further revision before the Government, as per section 83(2) of the Act. By Ext.P10 order the Government set aside the auction, in relaxation of the relevant provisions of the Act as a special case, and the 6th respondent was allowed to settle the liability. It was found that there occurred irregularities in conduct of sale. Against Ext.P10 order the petitioner again approached this Court filing W.P.(C) No.2706 of 2009. This Court found that there occurred inordinate delay on the part of the 6th respondent in filing Ext.P6 application because sale was conducted and confirmed in the year 1999, whereas Ext.P6 was filed only on 2-11-2005. Referring to Section 83(3) and the proviso thereof it was observed that, there is no satisfaction arrived at by the Government to the extent that there was “sufficient cause” W.P.(C) No. 3728/2010 5 offered by the 6th respondent for condoning the inordinate delay. It was also observed that under section 53 of the Act the sale is not liable to be set aside just because it suffers from irregularities or mistakes, but the authority should be satisfied that 'substantial injury' has been resulted because of the sale. It is found that in Ext.P10 order the 1st respondent has not arrived at any conclusion that 'substantial injury' has been caused to the 6th respondent. On the basis of the above findings, Ext.P10 order was set aside and the 1st respondent was directed to consider entire issue afresh with specific reference to the relevant provisions and also to the aspects of 'delay' as well as the 'substantial injury', as stated in the judgment. The 1st respondent was directed to pass fresh orders after giving an opportunity of hearing to all the interested parties within three months. 7. Ext.P12 order which is impugned in this writ petition was issued by the 1st respondent in compliance with the directions contained in Ext.P11 judgment. Paragraph 8 W.P.(C) No. 3728/2010 6 of Ext.P12 order reads as follows:- 1.“8. Accordingly a hearing was conducted by Government on 16-10-09. Sri.Mohanan, Senior Superintendent, Commissioner of Land Revenue, Sri S.Sabu, Sri.Suresh Kumar, Sri.C.Ganesan, Chief Manager, Kerala Financial Corporation, Kollam, Sri. N. Vasudevan, Manager (R), Kerala Financial corporation, Smt. R.Chitra, Junior Superintendent (RR), Collectorate, Kollam, Sri.T.K. Mohanan, Kerala Financial Corporation, Advocate Sri. Siji S., Kollam for Addl. Respondent 8, Advocate Sri. Kallada M. Balachandran, Sri.N Kanaka Bose, Sri.N.Vasudevan, Sri. R. Ranjith were present. On verification of the connected reports & records the alleged violation of the provisions of law in the sale of the property is seen established. In the circumstances Government order to confirm the G.O.(MS) No.450/08/RD dated 30-12-2008 and the DistrictC ollector, Kollam shall take further action following due procedures.” (emphasis supplied). 8. It is evident that the authority who issued Ext.P12 has not applied its mind on the issue, based on the specific directions contained in Ext.P11 judgment. A highly cryptic order was issued even without proper advertence to the facts and circumstances of the dispute and also to the contentions raised on either side. W.P.(C) No. 3728/2010 7 9. It was not proper on the part of a person in the rank of a Principal Secretary to the Government to totally ignore the directions contained in Ext.P11 judgment, after noticing and reiterating such directions in the order itself (in paragraph 7 of Ext.P12). She had issued a highly cryptic order, without making any observations on the basis of such directions and without arriving at any findings on the specific aspects upon which the matter was referred for a fresh decision. 10. Under the above circumstances, without entering upon the merits of the issue, I am constrained to hold that Ext.P12 is totally unsustainable and liable to be set aside. Therefore, the writ petition is allowed and Ext.P12 is hereby quashed. The 1st respondent is directed to pass fresh orders, after affording a further opportunity of hearing to petitioner and respondents 6 and 7 herein. The matter should be decided afresh with specific reference to Ext.P11 judgment this Court and in strict compliance with the directions contained therein. Fresh decision in this regard shall be W.P.(C) No. 3728/2010 8 taken as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. C. K. ABDUL REHIM, JUDGE. mn.