IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 RP.No. 800 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.16852/2009 Dated 09/07/2009 .................... REVIEW PETITIONER(S): PETITIONER -------------------------------- JAMES VARGHESE, S/O.VARGHESEWE, PADANILATHU HOUSE, THIDANADU, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. SPECIAL DEPUTY TAHSILDAR (R.R), K.S.F.E., M.D.COMMERCIAL CENTRE, KOTTAYAM. 3. SPECIAL DEPUTY TAHSILDAR (R.R), K.S.F.E., KUMARANASAN SMARAKA MANDIRAM, COURT ROAD, ALAPPUZHA. 4. BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES, ETTUMANOOR BRANCH, KOTTAYAM. 5. BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES, ETTUMANOOR BRANCH, KOTTAYAM. 6. BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES, ETTUMANOOR BRANCH, KOTTAYAM. 7. BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES, ALAPPUZHA-II BRANCH, ALAPPUZHA. 8. THE KERALA STATE FINANCIAL ENTERPRISES, REGD. OFFICE, 'BHADRATHA' P.O.BOX 51O, CHEMBUKKADU MUSEUM ROAD, THRISSUR REP. BY ITS MANAGING DIRECTOR. 9. MINI PANICKER, MADAVANA HOUSE, EDAKKOLI, CHAKKAMPUZHA, PALA. 10. SATHEESH CHANDRAN NAIR P.S., "SRUTHI", KODIMATHA P.O., KOTTAYAM - 34. 11. REGHUNATHAN NAIR.D., MUTTATH HOUSE, UZHAVOOR EAST P.O., KOTTAYAM - 34. 12. TONY MATHEW, NADAKKAZHAKKAL HOUSE, BHAVANA LANE, EDAPPALLY P.O., COCHIN - 24. 13. DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM. 14. LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. ADV. SRI.M.SASINDRAN, SC, K.S.F.E., LTD. FOR R4 TO 8 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ----------------------------------------------- R.P. NO. 800 OF 2009 ------------------------------ Dated this the 13th day of October, 2009 O R D E R The Review Petitioner/Writ Petitioner had purchased a portion of the property owned by the 9th respondent by virtue of Ext.P1 sale deed dated 03.01.2007. But at the time of effecting the sale, the 9th respondent indebted much amount to the KSFE Ltd. and to recover the due amount, steps under the Kerala Revenue Recovery Act were being pursued. The factum of liability towards the KSFE Ltd. was never brought to the notice of the petitioner who was stated as a bonafide purchaser of the property in question. When the Revenue authorities at the instance of the KSFE Ltd. proceeded against the property covered by Ext.P1 sale deed, the petitioner approached the 13th respondent/District Collector who declined interference as per order dated 02.08.2008; which in turn was subjected to challenge before the 14th respondent/Land Revenue Commissioner by filing a Revision under Section 83(1) of the Kerala Revenue Recovery Act. After considering the facts and figures, the Land Revenue Commissioner rejected the Revision Petition and vacated the interim stay granted in this regard, as per order dated 30.04.2009, which was challenged in the above R.P. NO. 800/2009 2 Writ Petition. (the above order, stated as produced Ext.P9 in the Writ Petition, was subsequently substituted by a proper copy of the order produced as Annexure A1 in I.A. 7954/2009 and it was allowed by this Court as per order dated 30.06.2009). 2. Respondents 4 to 9 had filed detailed counter affidavit stating that at the time of Ext.P1 sale, the statutory requirements so as to attract section 44 of the Kerala Revenue Recovery Act had already been satisfied and that the petitioner himself had got impleaded as an additional respondent in WP(C) No. 16187/2007 filed by the guarantors to the transaction availed by the 9th respondent, where interference was declined, enabling further steps to be pursued, including sale. The petitioner had filed a reply affidavit stating that the order permitting the sale of the property of the 9th respondent was passed by the Court in WP(C) 16187/2007 much prior to 13.08.2007, the date on which the petitioner got impleaded in the proceedings. Nature of the notice issued as mentioned in paragraph 7 of the counter affidavit was also questioned therein. 3. During the course of hearing the Writ Petition, the learned counsel for the petitioner stated that the legal issue stood covered against the petitioner, vide the decision by a Division Bench of this Court in Special Tahsildar Vs. Vasu [2006 (4) KLT 557] and hence the reliefs sought for in the Writ Petition were stated as confined to have some time to R.P. NO. 800/2009 3 clear the liability by way of instalments. It was in the said circumstance, that the submission made by the learned counsel as aforesaid was recorded by this Court and the matter was disposed of, directing the petitioner to remit a sum of Rs.2,00,000/- (Rupees Two lakhs only) on or before 10.08.2009 and to clear the balance amount by way of ‘seven’ equal monthly instalments to be effected on or before the 10th of the succeeding months. 4. It is now contended that, in compliance with the above direction, the petitioner deposited a sum of Rs.2,00,000/- (stated as effected 'under protest') and the present Review Petition has been filed stating that the submission made by the learned counsel for the petitioner was without his knowledge or consent; that he had given no instruction to have the matter disposed of by remitting the entire amounts by way of instalments and further that the very submission that the legal issue stood covered by the decision cited Supra was also not correct, as the said decision was not applicable to the case in hand. 5. Obviously, the Review Petition has been filed through another learned counsel and the nature of contentions raised in the Review Petition as well as in Annexure A1 affidavit reveal that absolutely no fault or error was made by this Court while disposing the matter. The factum of submission (as recorded in paragraph 2 of the impugned judgment) from R.P. NO. 800/2009 4 the part of the learned counsel then appearing for the petitioner, also seeking for time to clear the liability by way of instalments stands admitted. This being the position, the contention raised by the petitioner that, he did not instruct his counsel to have such course and that his instruction would have been wrongly understood by the counsel as stated in paragraph 3 of the Annexure A1 affidavit do not attract much attention; particularly since there is no error apparent on the face of the records, so as to justify a review. The law in this regard has been made clear by the Apex Court as per decision reported in BSNL and others Vs. Subash Chadra Kanchan and another in 2006 (8) SCC 279 (paragraph 15 and 17 to 20). But relying on the very same decision, particularly the contents of paragraph 20, Mr. Roy Chacko, the learned counsel appearing for the Review Petitioner submits that the concession made before the Court by the counsel is binding on the party whom he represents but a wrong concession made by the counsel on the point of law (stating that the legal issue was covered by the decision rendered by the Division Bench of this Court in Special Tahsildar Vs. Vasu [2006 (4) KLT 557]) would not be binding on the party concerned. 6. True, there cannot be any valid concession as to the point of law involved. The point involved in the dictum in Special Tahsildar Vs. R.P. NO. 800/2009 5 Vasu [2006 (4) KLT 557] was that prior attachment of the property was not a pre-requisite to attract the wrath of Section 44, if the transfer was after service of demand under the Act. The satisfaction required under the statute is sought to be established from the part of the concerned respondents in paragraph 7 of the counter affidavit filed in the Writ Petition, which however has been sought to be distinguished from the part of the Writ Petitioner in the last paragraph of the reply affidavit dated 09.07.2007 mentioning that it has not been stated in paragraph 7 of the counter affidavit as to whether the notice issued was under Section 7 or under Section 34 of the Kerala Revenue Recovery Act. In any view of the matter, this Court does not intend to go into the disputed questions of facts or as to the binding nature of the decision reported in Special Tahsildar Vs. Vasu [2006 (4) KLT 557], as the impugned judgment was passed only on the basis of the submission made by the learned counsel then appearing for the Writ Petitioner, seeking for some breathing time to clear the entire liability by way of instalments. 7. Normally, this Court would have declined interference at the very threshold, when it is seen that the party has chosen to take a ‘U turn’. But in the instant case, it remains to be a fact that the benefit to clear the entire liability by way of instalment was sought for by the learned counsel then appearing for the petitioner, only when he was confronted by the R.P. NO. 800/2009 6 opposite side, with the decision rendered by a Division Bench of this Court in Special Tahsildar Vs. Vasu [2006 (4) KLT 557], which was readily accepted as governing the legal issue involved; quite though this Court did not place any reliance on the said verdict for deciding the case. It is also stated in paragraph 3 of the affidavit filed as Annexure A1 in the Review Petition, that the instruction given by the Review Petitioner was only that he could raise a maximum of Rs.2,00,000/- to be deposited, if at all any such situation arose for showing his bonafides to obtain interim stay of further proceedings and further that the learned counsel would have sometimes misunderstood the instruction in a different manner as submitted before the Court. 8. As stated herein before, the proceedings of the respondents have been challenged from the part of the petitioner raising many a ground, factual as well as legal. The petitioner is stated as a bonafide purchaser of the property and admittedly he does not owe any amount to the KSFE Ltd. or to the Government under any head. That apart, pursuant to the judgment dated 9th July, 2009, the petitioner has deposited the initial sum of Rs.2,00,000/- as borne by Annexure A2 'fixed deposit receipt' issued from the Pala branch of the KSFE Ltd., a copy of which was produced before the second respondent along with Annexure A3 forwarding letter, revealing that the deposit was made 'under protest' and that he was R.P. NO. 800/2009 7 proposing to challenge the verdict by filing a Review Petition. 9. Considering the sequence of events and the dispute raised on the factual and legal points, this Court finds that, if there was any mistake on the part of the former counsel who represented the Writ Petitioner in making the submissions leading into the impugned judgment, it is likely to result in miscarriage of justice. On the other hand, if a chance is given to the petitioner to substantiate his case on merits, no serious prejudice is likely to be caused to any of the respondents. As it stands so, this Court finds it fit, just and proper to have the matter heard and decided on merits, than to have the doors of justice shut for ever. In the above facts and circumstances, taking a lenient view, this Court hereby recalls the judgment dated 09.07.2009 and the Writ Petition is restored to the files, to be considered for Admission by the appropriate Bench. The Review Petition is allowed as above. No cost. P.R.RAMACHANDRA MENON JUDGE dnc