IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WPC.No. 3959 of 2004 (U) ------------------------ PETITIONER: ---------- ANNA, W/O.MATHEW, KOTTARATHARA HOUSE, THUDANGANADU KARA MUTTAM VILLAGE, THODUPUZHA TALUK. ADDL. PETITIONER IMPLEADED -------------------------- ANIES, WIFE OF MATEW, AGED 61, RESIDING AT PAZAYIDATH KOLEPRA, KODAYATHOOR, HOUDUPUZHA., ADDL. PETITIONER IMPLEADED AS PER ORDER DT. 15.7.2011 N IA. NO.11223/2011. BY ADVS.SRI.E.SUBRAMANI SRI.S.EASWARAN SRI.SUJESH MENON V.B. RESPONDENT(S): -------------- 1. THE DISTRICT COLLECTOR, IDUKKI DISTRICT. 2. THE REVENUE DIVISIONAL OFFICER,IDUKKI. 3. THE TAHSILDAR, THODUPUZHA. 4. P.J.CLEETUS, S/O.JOSEPH, PILIKKAL VEETTIL, KADATHIKARAYIL MUVATTUPUZHA TALUK. 5. MATHEW, S/O.THOMAS, PAZHAYIDATH KOLAPRA, KODAYATHUR. 6. THE COMMISSIONER, LAND REVENUE, TRIVANDRUM. ADDL. R7 IMPLEADED ------------------ DIRECTOR, VIGILANCE, ADDL. R7 IMPLEADED AS PER ORDER DT. 24.7.08 IN WPC 3959/04 R1,2,3,6 BY SENIOR GOVERNMENT PLEADER SRI.SHIBU JOSEPH R4 BY SRI.V.RAJENDRAN (PERUMBAVOOR) R4 BY ADVS. SRI.P.P.THAJUDEEN SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.10.2011, ALONG WITH WPC. 34141/2004, THE COURT ON 23-12-2011 PASSED THE FOLLOWING: VK WPC.No. 3959 of 2004 (U) -------------------------- APPENDIX -------- PETITIONER'S EXHIBITS ---------------------- EXT.P1. COPY OF THE SAID SALE DEED DT. 25.9.1999 EXT.P2. COPY OF THE DOCUMENT DT. 5.8.1963 EXT.P3. COPY OF THE NOTICE ISSUED BY THE THIRD RESPONDENT TO TE 5TH RESPONDENT DT. 6.11.2001. EXT.P4. COPY OF THE NOTICE ISSUED BY THE THIRD RESPONDENT TO THE 5TH RESPONDENT DT. 6.11.2002 EXT.P5. COPY OF THE CLAIM PETITION FILED BY THE PETITIONER. EXT.P6. COPY OF THE ORDER DT. 31.3.2003 BY TH 2ND RESPONDENT. EXT.P7. COPY OF THE JUDGMENT IN OP 13289 OF 2003 DT. 20.10.2003. EXT.P8. COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE 6TH RESPONDENT. EXT.P9. COPY OF THE ORDER NO.LR (B7) 50708/03/KDIS. DT. 23.1.2004 PASSED BY THE 6TH RESPONDENT. ANNEXURE A1. COPY OF DEATH CERTIFICATE 28.12.2009 ISSUED BY THE REGISTRAR OF BIRTHS & DEATHS, MUTTOM GRAMA PANCHAYAT, MUTTOM. ANNEXURE A2. COPY OF WILL NO.52/11/06 DATED 4.10.2006 OF THE SUB REGISTRAR OFFICE, ARAKULAM. RESPONDENT'S EXHIBITS : --------------------- ANNEXURE R7 (A). THE ENQUIRY REPORT IN E6-23350/08 OF VIGILANCE AND ANTI CORRUPTION BUREAU, KOTTAYAM DATED 24.10.2008. / TRUE COPY / P.A. TO JUDGE VK P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 ......................................................................... Dated this the 23rd December , 2011 J U D G M E N T Revenue sale of the property in question as confirmed by the second respondent vide Ext. P2 and affirmed in Revision by the 6th respondent vide Ext.P9 is under challenge in W.P. © No. 3959 of 2004, stating that the petitioner's property wrongly included in the sale proceedings, is not liable to be proceeded against, in respect of the default on the part of the 5th respondent/son-in-law. 2. W.P.(C) 34141 of 2004 has been preferred by the auction purchaser, who is the 4th respondent in the other writ petition (W.P.(C)No.3959 of 2004), stating that, despite satisfaction of the entire sale consideration, delivery is still to be effected, which, hence is sought for. 3. During the pendency of the above proceedings before W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 2 this Court, the petitioner in W.P.(C) No.3959 of 2004 (5th respondent in W.P.(C)No.34141 of 2004) expired and her daughter has come into the party array as the Addl. Petitioner in W.P.(C)No.3959 of 2004 as per the order dated 15.07.2011 in I.A.No.11223 of 2011 and so also, as the Addl.7th respondent in W.P.(C) 34141 of 2004, as per the order in I.A.NO. 11201 of 2011 in the said writ petition. The parties and documents are referred to, as described in W.P.(C) 3959 of 2004 for convenience, unless otherwise described in the context. 4. The 5th respondent in W.P.(C) No.3959 of 2004 was doing some 'Abkari' business, who turned to be a defaulter in respect of payment of 'kist' amount to the Government. Under such circumstances, the Government proceeded with steps under the Revenue Recovery Act and the property stated as belonging to the 5th respondent was sold in public auction, to the 4th respondent, who satisfied the entire bid amount of Rs.4,78,500/-. The sale was confirmed by the RDO as per W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 3 Ext.P6 order dated 31.03.2003. Both the O.P.No.13289 of 2003 filed by the petitioner challenging confirmation of sale and W.P. (C) No.28047 of 2003 filed by the 4th respondent/auction purchaser to effect delivery, were disposed of as per Ext. P7 common judgment dated 20.10.2003, relegating the petitioner to have the remedy pursued under Section 83 of the Kerala Revenue Recovery Act. Ext.P8 Revision Petition preferred before the 6th respondent (Commissioner for Land Revenue) happened to be dismissed as per Ext. P9 order dated 23.01.2004, which in turn is under challenge in W.P.(C)No. 3959 of 2004. The other writ petition preferred by the auction purchaser, as already mentioned herein before, is mainly for causing the delivery of the property to be effected. 5. The case of the petitioner in W.P.(C) No.3959 of 2004 is that, he became the owner of the property by virtue of Ext. P1 sale deed executed on 25.09.1999, which was executed pursuant to a Court sale, as per the decree passed in O.S. No. 62 W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 4 of 1994 of the Sub Court, Thodupuzha in a suit for specific performance preferred by the petitioner/plaintiff against the son- in-law(5th respondent) and his brothers/sisters. It is stated that the 5th respondent/son-in-law does not have any right or interest whatsoever in the above property and that the revenue could have proceeded against the actual property of the 5th respondent as covered by Ext.P2 Gift Deed executed by his father, which is stated as different from the property conveyed to the petitioner as per Ext. P1. There were several rounds of litigation before different civil courts as well, in relation to the property concerned . 6. When the matter came up for consideration before this Court, an interim order was passed on 24.07.2008 in W.P.(C) No.3959 of 2004 , suo motu impleading the Director of Vigilance as the additional 7th respondent, who was ordered to conduct an enquiry as to the lapses, if any, leading to Ext.P1 court sale effected in favour of the petitioner. This is for the reason that, W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 5 the son-in-law of the petitioner, i.e., the 5th respondent, who participated in Abkari auction had executed a 'solvency bond' covering 2.37.23 hectares of land on 25.02.1993 and on the very next day i.e. 26.02.1993, he along with his brothers/sisters, executed a sale agreement covering the above 'solvency property' in favour of the mother-in-law , i.e., writ petitioner, finally leading to Ext. P1 sale deed effected in execution. It was observed that the course pursued was apparently a collusive attempt to defraud the revenue by the 5th respondent/son-in-law of the writ petitioner with the involvement of others concerned. The Director of Vigilance has conducted an enquiry through the Superintendent of Police, VACB, Eastern Range, Kottayam and an affidavit dated 28.10.2008 has been filed before this Court, along with a copy of the enquiry report in E6-23350 OF 2008. The crux of the report reveals that the property conveyed to the petitioner included the 'solvency property' as well and that the W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 6 conveyance was caused to be effected in a collusive manner by the 5th respondent. It is also stated that the sale effected by the defaulter in respect of his landed property has been proceeded against by the concerned Tahsildar, since the transaction was hit by Sec.44 of the Revenue Recovery Act. Pendency and finalisation of various civil suits in respect of the issue is also referred to therein. It is further pointed out that no Government Officials were parties to the civil suit before the Sub Court, Thodupuzha in O.S. 62/94, culminating in Ext. P1 conveyance and that all the Government Officials had taken every effort to protect the interest of the Government and they were not at fault in any manner. 7. Along with the reply affidavit dated 15.03.2004 filed by the petitioner in W.P.(C) 3959 of 2004, Ext. P11 lawyer notice has been produced, as to the proposed suit to be filed against the said revenue officials, to preserve and protect the property covered by Ext.P1 from being encroached upon and acted upon W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 7 otherwise. The report filed by the Superintendent of Police as referred to above reveals that the Munsiff's Court, Thodupuzha has passed the decree in the said Suit on 14.03.2007 permitting the petitioner/plaintiff to construct a wall through the western boundary line, with the help of an Advocate Commissioner; while declining the other reliefs sought for. Pursuant to the turn of events as above, the auction purchaser who has filed the other writ petition (W.P.(C)No.34141 of 2004), has got the said writ petition amended. The Sale Deed No:1012, dated 21.05.2004 executed by the RDO, Idukki in favour of the auction purchaser has been produced in the amended copy of the writ petition as Ext. P9, simultaneously producing a copy of the judgment and decree dated 14.03.2007 in O.S.No.135 of 2004 of the Munsiff's Court, Thodupuzha as Exts. P14 and P15. The decreed portion in the judgment reads as follows: “In the result, O.S.No.135/2004 decree in part. The plaintiff is permitted to construct boundary wall through the western boundary W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 8 line of plot No.(1) shown in Ext.C1(a) plan is that through the black line having length of 143.6 metres with the help of an Advocate Commissioner. Ext. C1(a) plan will be appended to decree. Other reliefs are disallowed “ 8. A copy of Ext.C1(a) prepared by the surveyor for identifying the property is produced as Ext. P16 in W.P(C) 34141 of 2004. In the said circumstance, the petitioner has revealed himself in paragraph 17B of the amended writ petition, in the following terms.: ”17B. Exhibit P14 is a judgment passed by a competent civil court which is binding on all parties concerned. Hence the petitioner will be entitled only for the remaining property covered by Exhibit P9. Under the circumstances described above, the petitioner is entitled to get delivery of only the remaining property in Exhibit P9 minus the property covered by A schedule in Exhibit P15 decree. Hence the petitioner is entitled to get a writ of mandamus directing respondents 2 W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 9 to 4 to effect physical delivery of Exhibit P9 properties excluding the property covered by Exhibit P15 decree with proper access to it.” The amended writ petition (W.P.(C) No.34141 of 2004) contains the following prayers: “ i) issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 to 4 to effect physical delivery of Exhibit P9 properties to the petitioner excluding the property covered by Exhibit P14 and P15 with proper access to it and issue a plan showing the property delivered to the petitioner . iA) to issue a writ of mandamus or any other appropriate writ order or direction, directing respondents 1 to 4 to return the sale price of the property undelivered to the petitioner together with interest charged for this type of liability by the 1st respondent from 12.12.2002 onwards. iB) to issue a writ of mandamus or any other appropriate writ order or direction, directing W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 10 the 1st respondent to pay appropriate damages to the petitioner for the injury, hardship and damages incurred to him due to the negligence on the part of revenue authorities. ii) such other reliefs which this Hon'ble Court deem fit and proper in the circumstances of the case. ” 9. The learned Counsel for the petitioner in W.P.(C) No.3959 of 2004 submits that, in view of the limited relief sought for by the auction purchaser/writ petitioner in the other case (who is the 4th respondent in W.P.(C) No.3959 of 2004), no further orders are necessary in W.P.(C) No.3959 of 2004 and that the same can be closed. It is ordered accordingly. 10. With regard to W.P.(C)No. 34141 of 2004 , the respondents 1 to 4 therein are directed to effect physical delivery of Ext.P9 properties to the said petitioner, excluding the properties covered by Exts.P14 and P15 with access to the said W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 11 property. This shall be done as expeditiously as possible, at any rate within three months from the date of receipt of a copy of the judgment. It will be open for the petitioner in W.P.(C) No.34141 of 2004 to approach the Revenue authorities/District Collector, Idukki with regard to the claim for return of proportionate sale price. In the event of filing of any such application within one month, the same shall be considered and appropriate orders shall be passed in accordance with law, within a further period of two months thereafter. 11. It is made clear that this Court has not expressed anything with regard to the relative rights and interests between the Revenue and 5th respondent in W.P.(C) No.3959 of 2004. If the 5th respondent/defaulter has alienated any of his property contrary to the mandate under Section 44 of the Revenue Recovery Act, this Judgment will not preclude the rights and interests of the Revenue to proceed against such properties, in accordance with law. W.P.(C) Nos. 3959 OF 2004 & 34141 OF 2004 12 12. It is further made clear that this judgment is in furtherance to the finalisation of the proceedings by the Civil Court as per Ext. P14 judgment/decree (passed by the Munsiff's Court, Thodupuzha) and it is without prejudice to the rights and interests of the parties concerned, to proceed with the cause of action, if aggrieved, in accordance with law. Both the writ petitions are disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk