IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WA.No. 706 of 2010 ---------------------- AGAINST THE JUDGEMENT IN WPC.34242/2008 Dated 23/02/2010 .................... APPELLANTS/PETITIONERS ----------------------------- 1. SUJIR DINESH NAYAK, S/O. LATE SUJIR KESAV NAYAK, KASTHOORI BUILDING, MUMBAI-400020. 2. SUJIR ANANTH NAYAK, S/O.LATE SUJIR KESAV NAYAK, KASTHOORI BUILDING, MUMBAI-400020. 3. SUJIR SAROJINI NAYAK, W/O.LATE SUJIR KESAV NAYAK, KASTHOORI BUILDING, MUMBAI-400020. 4. SUJIR SURESH NAYAK, S/O.LATE SUJIR KESAV NAYAK, KASTHOORI BUILDING, MUMBAI-400020. (APPELLANTS 1 TO 4 ARE REP.BY THEIR DULY CONSTITUTED POWER OF ATTORNEY N.RAMANKUTTY NAIR, S/O.NARAYANAN NAIR, SHYLAM, NO.30, ARADHANA NAGAR, ULIYAKOIL, KOLLAM-19). BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENTS/RESPONDENTS ---------------------------------- 1. THE DISTRICT COLLECTOR, KOLLAM. 2. THE REVENUE DIVISIONAL OFFICER, KOLLAM. 3. THE TAHSILDAR (RR), KOLLAM. 4. VINOD, S/O.UNNIKRISHNAN, KULANGARA HOUSE, ASRAMAM, KOLLAM. W.A.NO.706 OF 2010 - 2 - 5. SMT.GEETHANJALI PAI, SUJIR VILLA, MUNDAKKAL, KOLLAM-1, REPRESENTED BY HER POWER OF ATTORNEY HOLDER P.K.GOPALAKRISHNA PILLAI, PULIMOOTTU PUTHEN VEEDU, KANNIMEL CHERRI, KILIKOLLOOR, KOLLAM. R1 TO R3 BY SR.GOVERNMENT PLEADER SMT.K.MEERA R4 BY ADV.SRI.S.ABDUL RAZZAK THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. ------------------------------------------ W.A. No.706 of 2010 ------------------------------------------ Dated this the 17th day of May, 2010 JUDGMENT J.Chelameswar, C.J. This is an appeal filed by the writ petitioners aggrieved by the judgment dated 23rd February, 2010 in W.P.(C) No.34242 of 2008-B. 2. The four appellants herein are represented in this appeal by their duly constituted power of attorney holder Sri.N.Ramankutty Nair, a fact which is very crucial and relevant for adjudicating the present appeal. 3. Appellants 1, 2 and 4 are the sons and appellant No.3 is the wife of one late Sri.Sujir Kesav Naik who was a partner of a firm carrying on some business which fell into arrears of sales-tax to the tune of approximately Rupees 2.5 crores. In order to recover the arrears of the said tax, the respondent State brought to sale landed property of the abovementioned deceased Sujir Kesav Naik W.A.No.706 of 2010 - 2 - admeasuring an extent of 5.22 Ares in Sy.No.6 of Block No.58 of Kollam East Village. The said property was brought to sale under the provisions of the Kerala Revenue Recovery Act, 1968 and the sale took place on 4.10.2006. The 4th respondent herein is the person who purchased the abovementioned property in the revenue sale. The said sale came to be confirmed by Ext.P6 order dated 13.12.2006. 4. The case of the appellants is that the deceased Sujir Kesav Naik filed Ext.P1 application invoking Section 53 of the Revenue Recovery Act which recognises the right to question the sale conducted under the abovementioned Act on any one of the various grounds mentioned in the said Section which reads as follows: 53. Application to set aside sale on ground of material irregularity, mistake, etc.- (1) At any time within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake fraud in publishing or W.A.No.706 of 2010 - 3 - conducting it; but, except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake, unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. (2) If the application is allowed, the Collector shall set aside the sale and may direct a fresh sale.” 5. The learned Judge by the judgment under appeal recorded a finding that such an application itself came to be filed by the deceased Sujir Kesav Naik through the 4th appellant herein by duly authorising him. The said application (Ext.P1) is dated 24.10.2006. 6. Subsequent to the receipt of the said application a hearing was conducted on 31.8.2007, but no orders on the objections came to be passed immediately and therefore the appellants herein approached this Court by way of W.P.(C) No.21684 of 2008 represented by the abovementioned power of attorney holder. This Court by the judgment dated 7th August, 2008 disposed of the writ petition directing the first respondent W.A.No.706 of 2010 - 4 - therein to pass appropriate orders on the abovementioned application. It was also observed therein that if orders have already been passed on Ext.P1, the same shall be communicated by the said respondent within three weeks from the date of production of a copy of the order. It may be mentioned here that such a conditional order came to be passed in view of the disposal of the writ petition at the admission stage. 7. In compliance of the direction issued by this Court, Ext.P5 order dated 21.10.2008 was issued by the District Collector. It appears that a copy of the said order was served on the abovementioned power of attorney holder also on 11.11.2008. 8. In substance, by Ext.P5 order, the objections raised against the sale were rejected. The sale of the property came to be confirmed by Ext.P6 order dated 13.12.2006 as required under Section 54 of the abovementioned Act. Challenging Exts.P5 and P6 orders, the instant writ petition W.A.No.706 of 2010 - 5 - came to be filed with a further prayer that the objections raised in Ext.P1 be reconsidered. By the judgment under appeal, the writ petition was dismissed essentially on the ground that the writ petitioners/appellants herein did not approach this Court with clean hands. 9. In this regard, the learned Judge recorded his findings as follows: “In the reply affidavit dt.14.1.2009 the petitioners have admitted that Sri.N.Ramankutty Nair had obtained Ext.P6 order on 5.11.2007. But it is pertinent to note that even thereafter the petitioners have approached this court complaining about non- issuance of orders on Ext.P1 application. The writ petition, WP (C) No.21684/08, copy of which is produced as Ext.R4(d), was seen filed on 17.7.2008, i.e. long after receipt of Ext.P6. It is further noticed that the said writ petition was filed on behalf of the petitioners herein by none other than Sri.N.Ramankutty Nair, as power of attorney holder of the petitioners. But there is clear suppression in that writ petition about passing of any proceedings confirming the sale. Hence it is clear and evident that W.A.No.706 of 2010 - 6 - knowing very well about confirmation of sale and the subsequent proceedings issued, the petitioners ventured to prosecute the matter further on the pretext that they are entitled to get an order on Ext.P1 petition. In the WP(C) No.21684/08, which is the writ petition filed at the first instance, the petitioners have not chosen to challenge Ext.P6 or the further proceedings. On the other hand they attempted to suppress all such further developments, which were within their knowledge. Therefore it is evident that the petitioners have not approached this court at that time with clean hands.” 10. It can be seen from the above extracted portion of the judgment under appeal that the earlier W.P.(C) No.21684 of 2008 was filed on 17.7.2008 by which time Ext.P6 confirmation order had been obtained by the abovementioned Ramankutty Nair on 5.11.2007. But the said fact was not brought to the notice of the Court while filing the said writ petition. In the said writ petition, a copy of which is filed as Ext.R4(D) in the instant writ petition, the appellants herein were represented by the abovementioned power of attorney holder W.A.No.706 of 2010 - 7 - Sri.Ramankutty Nair. 11. Confronted with this situation, learned counsel for the appellants sought to explain the discrepancy saying that Sri.Ramankutty Nair had obtained Ext.P6 order in his individual capacity and not in his capacity as the power of attorney holder of the appellants herein. The said submission is difficult to digest in view of the fact that the abovementioned Ramankutty Nair is not demonstrated to have any other interest in the abovementioned litigation or the property which is the subject matter of the litigation except in his capacity as the power of attorney holder of the appellants herein. Obviously, inspite of the proved knowledge of the confirmation of sale which perhaps could have been challenged in the abovementioned writ petition, the appellants and their power of attorney holder did not choose to do that and they seek to challenge the sale by way of second round of litigation in the instant writ petition which, in our view, is not permissible on a principle akin to the principle of W.A.No.706 of 2010 - 8 - constructive res judicata. We do not, therefore, see any reason to interfere with the judgment under appeal. The writ appeal is dismissed at the admission stage. J.Chelameswar, Chief Justice P.N.Ravindran, Judge vns