IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 6356 of 2007(F) --------------------------------------- PETITIONER(S): ------------------------ M.V. UNNIKRISHNAN, MEETHALAVALAPPIL, EDAKKAD AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT. BY ADV. MR.RAJESH P.NAIR RESPONDENT(S): ------------------------- 1. DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KANNUR. 2. LAKSHMANAN, VILLAGE OFFICER, MUZHAPILANGAD, RESIDING AT `SOUPARNIKA' KULAMKADAVU RAOD, MUZHAPILANGAD, KANNUR. 3. C.C. NARAYANAN, DETPUTY TAHSILDAR (KANNUR), RESIDING AT VELAM, MAYYIL P.O., KANNUR DISTRICT. 4. MANALERI BALAN, S/O.RAMAN, MANALERI HOUSE, MUZHAPILANGAD, KANNUR DISTRICT. 5. K. VINODKUMAR, S/O. GOVINDAN, EDAKKAD AMSOM, THOTTADA DESOM, KANNUR DISTRICT. 6. MURALI P., S/O.SEKHARAN, EDAKKAD AMSOM, THOTTADA DESOM, KANNUR DISTRICT. 7. SHAJI. C.K., `VENU GEETHAM', NEAR B.P.L. TOWER, P.O. THANA, KANNUR DISTRICT. W.P.(C) NO.6356/2007 8. MANAGER, CANARA BANK, CALTEX, KANNUR. 9. DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE, KANNUR. 10. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. R1,3,9 & 10 BY SR. GOVT. PLEADER MR. P.K.BABU R4 BY ADV.MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. R8 BY MR..V.B.HARI NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6456/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE NO.D5 16/02-03/BL DTD. 3.12.04. P2:- COPY OF THE SALE NOTICE NO.D5 16/02-03/BL DTD. 21.2.05. P3:- COPY OF THE JUDGMENT DTD. 23.3.05 IN WPC. 9729/05. P4:- COPY OF THE APPLICATION UNDER S. 53 DTD. 30.3.05. P5:- COPY OF THE REMINDER DTD. 8.12.05. P6:- COPY OF THE REMINDER DTD. 2.7.06. P7:- COPY OF THE COMPLAINT FILED TO THE CHIEF SECRETARY DTD. 10.6.06. P8:- COPY OF THE INTIMATION RECEIVED FROM THE OFFICE OF THE CHIEF SECRETARY DTD. 14.6.06. P9:- COPY OF THE COMMUNICATION DTD. 4.11.06. P10:- COPY OF THE COMPLAINT FILED ON 8.6.06. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, TELLICHERRY WHO IS THE AUTHORISED OFFICER DT. 12.8.05. R4(b):- COPY OF THE CERTIFICATE OF SALE IN FAVOUR OF RESPONDENT NO. 4 BY THE REVENUE DIVISIONAL OFFICER, TELLICHERRY,. DT. 20.1.06. R4(c):- COPY OF THE RECEIPT FOR PAYMENT FOR OBTAINING ELECTRICITY CONNECTION BEFORE THE KERALA STATE ELECTRICITY BOARD, DTD. 22.4.06. R4(d):- COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MUZHAPPILANGAD DTD. 20.6.06. R4(e):- COPY OF THE BUILDING TAX PAYMENT RECEIPT DTD. 18.11.06. R4(f):- COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE S.R.O., KADACHIRA, DTD. 28.2.06. R4(g):- COPY OF THE ASSIGNMENT DEED EXECUTED BY BHARATHAN AND OTHERS IN FAVOUR OF USMAN AS DOCUMENT NO.57/07 DTD. 5.1.07. R4(h):- COPY OF THE ASSIGNMENT DEED EXECUTED BY VIJAYAN AND HIS SISTER PRASEETHA IN FAVOUR OF MAHESH AS DOCUMENT NO.189/0-7 OF S.R.O. KADACHIRA, DTD. 12.1.07. TRUE COPY P.S. TO JUDGE tss P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 6356 OF 2007 ......................................................................... Dated this the 5th August, 2009 J U D G M E N T The challenge involved in the Writ Petition is against confirmation of the revenue sale in respect of the property belonging to the petitioner, notwithstanding the fact that there was a specific direction given by this Court vide Ext. P3 judgment, relegating the petitioner to approach the statutory authority under Section 53 of the Kerala Revenue Recovery Act, holding that no confirmation of the sale could be effected before finalisation of the proceedings as above. 2. With regard to the sequence of events, it is to be noted that the petitioner had availed a loan of Rs. Two lakhs from the respondent Bank in the year 2002, creating equitable mortgage over 9 cents of land, which belonged to the petitioner . It is the case of the petitioner that so far, nearly 70% of the liability was W.P.(C) No 6356 OF 2007 2 cleared , despite which, the Bank proceeded with coercive steps; which however was dropped on appreciating the actual facts and figures. Subsequently, on 03.12.2004, Ext.P1 demand notice was issued, followed by Ext.P2 sale notice dated 21.02.2005, leading to the sale conducted on 01.03.2005, whereby the property was bid in favour of the successful bidder/4th respondent. 3. Met with the said circumstances, the petitioner approached this Court by filing W.P.(C)No. 9729 of 2005, which invited Ext.P3 judgment, whereby the petitioner was directed to avail the statutory remedy as provided under Section 53 of the Revenue Recovery Act, making it clear that, on filing such proceedings within the prescribed time, the confirmation of the sale would stand stayed. 4. In conformity with the observations in Ext. P3 judgment, the petitioner preferred Ext.P4 appeal dated 30.03.2005, which was sent by registered post to the first respondent, who, admittedly, has received the same within the prescribed time, as admitted in paragraph No. 5 of the counter W.P.(C) No 6356 OF 2007 3 affidavit filed from his side. 5. The only contention raised by the first respondent is that the said appeal was considered and rejected by the said respondent, intimating the position to the petitioner, though no copy of any such order has been produced along with the counter affidavit, nor has it been mentioned anywhere, as to how the order was served upon the petitioner or as to the date on which the service was effected. 6. The case of the petitioner is that no such order was ever passed by the first respondent. The petitioner was made to run from pillar to post, to get his appeal considered and decided, in accordance with law. The learned Counsel for the petitioner submits that the petitioner had sent Ext. P5 reminder on 08.12.2005, which was sent by registered post, but it did not attract any response. This was followed by Ext.P6 reminder dated 02.07.2006, sent by registered post, which also did not yield any positive result. The petitioner preferred Ext. P7 complaint before the Chief Secretary, again by registered post. This led to Ext. P8 reply dated 14.06.2006, stating that the W.P.(C) No 6356 OF 2007 4 matter has already been referred to the concerned department for appropriate action. Subsequently, Ext. P9 reply dated 04.11.2006 was sent to the petitioner in an evasive manner, stating that the concerned property had been sold for a sum of Rs. 1.36 lakhs. In other words, Ext.P9 reply did not mention anything as to the course of events pursued/followed by the District Collector, with regard to the fate of Ext.P4 appeal. It is also brought to the notice of this Court that the petitioner has filed Ext. P10 complaint before the Dy.S.P. as to the course of events transpired, involving the sale , projecting that, it is a part of a shady transaction. 7. The third respondent has filed a counter affidavit stating in paragraph No.4 that the District Collector had dismissed the application preferred by the petitioner under Section 53 of the Act on 16.08.2005, simultaneously intimating the position to him and that the petitioner has not chosen to challenge the said order. In view of the observation made herein before, as to the obscurity in the matter of alleged disposal of Ext. P4, particularly for want of production of a copy of the W.P.(C) No 6356 OF 2007 5 relevant order and the manner and date of service of notice, no reliance can be placed on the statement under any circumstances. The third respondent has also asserted that the confirmation of sale was effected by the RDO, since no petition seeking to set aside the sale, as contemplated under Section 52 was obtained in the office of the said respondent. 8. Obviously, Section 52 says that the application to set aside the sale should be preferred within 'thirty' days, before the District Collector or such other authorities as authorised and permitted under the Statute. In the instant case, admittedly, the petitioner preferred Ext. P4 application to set aside the sale before the first respondent/District Collector, who has virtually admitted the receipt of the same in paragraph No. 5 of the counter affidavit . This being the position, there was absolutely no need, necessity or occasion for the RDO to have considered any such application. More so, when, it is the case of the first respondent as well as the third respondent, that Ext. P4 preferred under Section 53 was considered, decided and rejected by the 'District Collector' himself, though copy of the relevant W.P.(C) No 6356 OF 2007 6 proceedings does not form part of the records . 9. The 4th respondent/successful bidder has filed a counter affidavit referring to the sequence of events, contending in paragraph No.2 that Ext. P4 appeal was considered and rejected by the 'RDO' as per the order dated 12.08.2005. This, however, does not have any significance in view of the admitted position, as narrated by the first and third respondents in their counter affidavits. The learned Counsel for the 4th respondent submits that pursuant to the confirmation of sale, the 4th respondent has effected various constructions in the property in question and hence, if any interference is made, it will be detrimental to the rights and interests of the said respondent. But the fact remains that, immediately on effecting the sale on 01.03.2005, i.e., within 30 days ( as contemplated under the relevant provisions), the petitioner preferred Ext.P4 appeal before the statutory authority . The said appeal was directed to be considered by this Court as per Ext. P3 judgment, making it clear that the petitioner will be entitled to file such appeal and that no confirmation of sale would be effected, till finalisation of W.P.(C) No 6356 OF 2007 7 such proceedings. This being the position, the very confirmation of the sale by the RDO, is liable to be declared as an instance of contumacious act on the part of the said respondent, which cannot but be deprecated in the strongest possible words. The first respondent has also not given any explanation with regard to the non compliance of the directions given by this Court vide Ext. P3 with regard to sale, which is a matter to be dealt with seriously. 10. However, considering the facts and circumstances, this Court does not propose to have a microscopic analysis of the turn of events and finds that it will only be enough, if the impugned proceedings are set aside and the first respondent is directed to re-consider Ext.P4 appeal in accordance with law, after giving an opportunity of hearing to all concerned. In the above circumstances, the first respondent is directed to reconsider Ext. P4 appeal preferred by the petitioner under Section 53 of the Act , seeking to set aside the sale conducted on 01.03.2005, after giving an opportunity of hearing to the petitioner as well as to the 4th respondent . The above W.P.(C) No 6356 OF 2007 8 proceedings shall be finalised as expeditiously as possible and at any rate within two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk