IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 21291 of 2010(J) -------------------------- PETITIONER(S): --------------------- BINOY P.P, AGED 34 YEARS, S/O. PAILY PULLITTEL HOUSE, MEKKADAMBUKARA VALAKOM VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT BY ADVS. SRI. K. RAMAKUMAR, SENIOR ADVOCATE SMT. SMITHA GEORGE RESPONDENT(S): ------------------------ 1. THE SECRETARY TO GOVERNMENT LAND REVENUE DEPARTMENT, GOVERNMENT OF KERALA THIRUVANANTHAPURAM 695 001 2. THE LAND REVENUE COMMISSIONER MUSEUM JUNCTION, THIRUVANANTHAPURAM 695 033 3. THE DISTRICT COLLECTOR, ERNAKULAM PIN 682 030 4. THE REVENUE DIVISIONAL OFFICER MUVATTUPUZH PIN 686 661 5. THE TAHSILDAR, MUVATTUPUZHA PIN 686 661 6. SMT. LISSY RAJAN PATTUPALAYIL, KARIMPANA PO MUVATTUPUZHA, ERNAKULAM 686 662. R1 TO R5 BY GOVT. PLEADER SMT. RANI DIOTHIMA R6 BY ADVS. SRI. RENJITH THOMAS SRI. NAVEEN THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(C).No. 21291 of 2010(J) APPENDIX PETITIONER'S EXHIBITS EXT. P1 COPY OF THE RECEIPT DT. 30.06.2008 ISSUED BY THE ADDITIONAL TAHSILDAR, MUVATTUPUZHA. EXT. P1(a) COPY OF THE RECEIPT DT. 28.07.2008 ISSUED BY THE TAHSILDAR, MUVATTUPUZHA. EXT. P2 COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DT. 03.09.2008. EXT. P3 COPY OF THE DECLARATION OF LAWFUL SUCCESSION OF PURCHASE OF IMMOVABLE PROPERTY. EXT. P4 COPY OF THE CERTIFICATE OF SALE OF IMMOVABLE PROPERTY, DT. 12.12.2008 OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. EXT. P5 COPY OF THE TAX RECEIPT DT. 14.01.2009 ISSUED BY VALAKAM VILLAGE OFFICE. EXT. P6 COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF LAND REVENUE, DT. 05.09.2009. EXT. P7 COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, DT. 28.10.2009. EXT. P8 COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNMENT. EXT. P9 COPY OF THE ORDER G.O.(MS) 224/10/RD DT. 10.06.2010 PASSED BY THE GOVERNMENT. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE PN C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No. 21291 OF 2010-J ------------------------------------------------- DATED THIS THE 21st DAY OF DECEMBER, 2011 J U D G M E N T Petitioner is the successful bidder with respect to 1 Acre 44 cents of land comprised in Sy.No.379/1A4 and 379/1A5 of Valakam village which was sold in public auction under the Kerala Revenue Recovery Act, 1968 (hereinafter referred to as the Act for short). The property was in ownership and possession of the 6th respondent, who is one among the defaulters in payment of amounts due to KSIDC, to the tune of Rs.1,30,89,000/- along with interest, for the recovery of which the proceedings under the Act was initiated. The sale in question was conducted on 30.6.2008. The property was bid for a sum of Rs.34,26,000/-. The sale in question was confirmed through Ext.P2 proceedings of the 4th respondent observing that the petitioner had remitted the entire bid amount within the time limit stipulated and also observing that the value fetched in the W.P.(c) No.21291/2010 -2- auction sale is fair and reasonable and that wide publication has been given to the auction sale. Ext.P2 order of the 4th respondent was issued on 3.9.2008. Subsequently on 29.11.2008 the 3rd respondent had rejected an application submitted by the 6th respondent seeking to set aside the sale, observing that there is no material irregularity with respect to the sale and also observing that the 4th respondent had already confirmed the sale. Against confirmation of sale and against the order of the District Collector the 6th respondent had approached the 2nd respondent who is the revisional authority under Section 83 (1) of the Act. Specific contentions raised in challenge before the 2nd respondent were that; (i). Confirmation was ordered without considering the application filed under Section 53 which was pending before the District Collector, (ii). There was no notice under Section 49(2) of the Act issued to the petitioner before 30 days prior to the auction, (iii). The land in question was mortgaged with a Bank and the Debts Recovery Tribunal had issued a decree in favour of the Bank, W.P.(c) No.21291/2010 -3- (iv). In the light of news published in newspaper it is clear that the fetched value is much lesser than the mortgaged value and there occurred collusion among the revenue officials and the auction purchaser, and (v). the amount due to KSIDC is attempted to be settled under One Time Settlement. Before the 2nd respondent the revenue authorities contended that, notice under Section 49(2) was duly served and that the public auction was conducted only after the service of notice. It was also contended that at the time of the sale there was no information about any decree of the Debts Recovery Tribunal or about any steps taken for One Time Settlement. It was specifically contended that the bid amount received is higher than the amount fixed by the Government and that wide publicity was given for the auction sale. According to the revenue authorities there was no material irregularity in the conduct of the sale and the paper news was totally baseless. Before the 2nd respondent, the petitioner contended that he had remitted the bid amount in time only by availing Bank loan, and therefore W.P.(c) No.21291/2010 -4- the property may be handed over at the earliest. 2. After considering the rival contentions, the 2nd respondent issued a cryptic order, which reads as follows:- “The basis for fixation of valuation of the land is not made clear. Further whereas the revenue recovery certificate is issued for Rs.1,30,89,000/-, the bid amount fetched is only Rs.34,26,000/- and Rs.50,10,000/-. The bid amount is grossly inadequate to cover the defaulted amount. Hence the case is remanded to the RDO for fresh disposal following the rules. The stay granted by the Commissioner of Land Revenue vide proceedings of even number dated 19-12-2008 also stands vacated.” 3. Pursuant to Ext.P6 order of the 2nd respondent, the 4th respondent issued Ext.P7 setting aside the sale and directing the Tahslidar to conduct fresh auction, after following the rules concerned. It is evident from Ext.P7 that, apart from reiterating the observation made by the 2nd respondent, the 4th respondent has not considered the merits of the issue or arrived at any independent conclusions. In Ext.P7 there is no findings to the effect that W.P.(c) No.21291/2010 -5- there exists any circumstances warranting cancellation of sale. 4. Aggrieved by Ext.P7 the petitioner had preferred revision before the Government under Section 83. But through Ext.P9 the said revision was rejected upholding that the 4th respondent had acted within his jurisdiction in a legal manner and that the Government finds no reason to interfere. The petitioner is challenging Exts.P6 & P7 orders of respondents 2 and 4 as well as Ext.P9 order passed by the Government. 5. Learned counsel for the petitioner contended that Ext.P6 order of remand was totally unsustainable because the 2nd respondent has not arrived at any conclusion on the merits of the decision taken by the 4th respondent in confirming the sale or on the merits of the decision taken by the District Collector in rejecting the application filed under Section 53. According to the petitioner the 2nd respondent, who is the revisional authority was not having any power to order a remand and to direct a re-consideration. There was W.P.(c) No.21291/2010 -6- no basis for the observations contained in Ext.P6 that the bid amount was grossly inadequate and also to observe that the basis for fixation of valuation of land was not made clear. It is contended that the fairness of the price fetched during auction cannot be assessed based on the quantum of the total dues. But it should be assessed on the basis of valuation of the property. There was no contention raised to the effect that the valuation arrived at by the revenue recovery authorities was erroneous or inadequate. Further, it is contended that, the 2nd respondent revisional authority was only having a limited jurisdiction in deciding correctness of the order passed under Section 53. It is also pointed out that the remand made by the 2nd respondent was invalid, because the 4th respondent become 'functus officio' when he confirmed the sale and there is no power of review conferred on such authority. The Petitioner raises further contention, that even though the matter was remanded for fresh consideration by the 4th respondent has not made any fresh, independent consideration, but only W.P.(c) No.21291/2010 -7- reiterated the observation contained in Ext.P6 order. Exhibit P9 order of the Government was also assailed on the ground that, being the revisional authority the Government ought to have looked into matter and appraised of the illegality and sustainability of Exts.P6 and P7 orders, which were impugned before the Government. 6. In the counter affidavit filed on behalf of the 2nd respondent it is contended that, the remand was made because the basis for fixation of the valuation was not clear and because the bid amount was grossly inadequate to cover the defaulted amount. It is stated that the 2nd respondent is vested with power to examine validity of the sale either suo motu or on application by any person, under Section 83 (1) of the Act. Exhibit P7 order of the 4th respondent was supported by stating that, under Section 54 of the Act the said authority has got power to set aside the sale. Further, it is contended that, since the object of an open auction is to get the maximum price, the authorities under the Revenue Recovery Act is duty bound to ensure W.P.(c) No.21291/2010 -8- the legality of the procedure adopted and reasonableness of the price fetched at the auction. 7. While considering the rival contentions I note of the fact that the 4th respondent has become 'functus officio' as and when the sale was confirmed and there is no power of review vested on such authority. Hence a re-exercise of the power under section 54 can be ordered only if the order confirming the sake is set aside. In the case at hand the 2nd respondent has not set aside the order passed by the 4th respondent confirming the sale. Therefore, the direction for fresh consideration is prima facie unsustainable. So also it is evident that the application submitted by the 6th respondent under Section 53 has already been rejected by the District Collector. Therefore, virtually there is an order passed by the District Collector rejecting the challenges raised against the sale. The revisional authority had neither set aside the order of the District Collector nor had ordered any fresh consideration of the matter by the District Collector. Apart from the above aspects it is worthy to note W.P.(c) No.21291/2010 -9- that, in Ext.P6 the revisional authority has not conducted any adjudication of the issue on the basis of grounds raised by the revision petitioner. It is pertinent to note that the contention of the 6th respondent that the sale fetched only less value than the market value was resisted by the Revenue Authorities stating that the sale was conducted at a price higher than the valuation fixed by the authority and that maximum price has been fetched because of the wide publicity given. But the 2nd respondent had failed in adjudicating the issues based on rival contentions nor had arrived at any conclusions or findings on such issues. On the other hand the Revisional authority observed that the basis for the valuation was not made clear. In fact such an issue was not raised before the 2nd respondent. Further there is nothing to indicate that the revisional authority had perused the files concerned with the valuation or reports if any obtained for arriving at the valuation of the property. In Ext.P6 it is observed that bid amount is grossly inadquate to cover the defaulted amount. The reasonableness of the bid W.P.(c) No.21291/2010 -10- amount has to be decided not on the basis of the quantum of arrears, but on the basis of valuation of the property in question. Merely because the arrears is very high the property will not fetch any amount higher than its market value. Therefore, it is evident that reasons upon which the matter was remanded is not at all sustainable. 8. The proviso to Section 54 enables the District Collector to set aside the sale, notwithstanding any rejection of application under Section 52 or 53, if he has reason to think that the sale is irregular or vitiated. But that power has to be exercised before confirmation of the sale. Once the sale is confirmed, even the Collector has no power to exercise the provisions contained under the proviso to Section 54. Since the 4th respondent had already confirmed the sale he was prevented from exercising powers vested under section 54. Therefore, question arises as to whether the 2nd respondent can direct the 4th respondent to exercise such power despite the sale stand confirmed. Going by provisions contained in Section 83 (1) W.P.(c) No.21291/2010 -11- of the Act, it is clear that power of the Revisional authority includes power for suo motu revision. But in this case it is evident that, the Revision Petition was filed by the 6th respondent. Even assuming for the sake of argument that, the direction for re-consideration issued by the 2nd respondent is having the effect of setting aside the order confirming the sale, it violates the proviso to Section 54, because if a petition under Sections 52 or 53 of the Act is already rejected then the power under the proviso can be exercise only on grounds other than which were alleged in such applications. In this case the Collector has already rejected an application filed under Section 53. The unreasonableness of the price fetched was one among the grounds upon which the application under Section 53 was adjudicated and decided. Hence the reasoning in Ext.P6 based on the same ground was not open, unless it is found that the rejection of Section 53 application was erroneous. Therefore it is clear that there occurred erroneous exercise of power vested on the 2nd respondent. W.P.(c) No.21291/2010 -12- 9. A Division Bench of this Court in the decision in Subaida Sulaiman V. Hamsa (1991 (2) KLT 158) held that, going by Section 53 of the Act it would be incorrect to say that mere inadequacy of the price fetched at the sale would by itself be a sufficient ground to set aside the sale. It is observed that the proviso to Section 54 does not indicate for what reasons or on what ground or under what circumstances the Collector can set aside the sale. It cannot be said that the legislature intended that the Collector can set aside the sale for no reason or for any irrelevant reasons. It is difficult to accept that the legislature did not intended to prescribe any guidelines in the matter of exercise of the power conferred on the Collector, under the proviso to Section 54. Reading of Sections 53 and 54 together, it appears that the proviso being a part of the scheme in the matter of setting aside the sale, they have to be read together. The picture becomes clear and the Collector can set aside the sale under the proviso to Section 54, only if he has reason to think that the W.P.(c) No.21291/2010 -13- sale ought to be set aside for the reasons mentioned in Section 53. De hors the reasons mentioned in Section 53, the Collector has no jurisdiction either under Section 53 or under the proviso to Section 54, is the observations made. 10. Considering the dictum in the above cited decision, it evidently clear that even the power vested in the proviso to Section 54 can be exercised only on limited grounds. In a recent decision of this Court in Suresh Kumar V. State of Kerala and others (2009 (3) KHC 497) it is held that merely because of some irregularity or mistake the sale is not liable to be set aside, unless it is held to the proper satisfaction of the concerned officer that substantial injury has resulted. It is further stated that the power vested with the revisional authority can be exercised only if it is satisfied that substantial injury has been resulted because of the sale, apart from any irregularity or mistake. In the case at hand revisional authority has not seen exercised any such adjudication. In yet another decision in P.V. Joseph V. Tahsildar, South Wynad Taluk (ILR W.P.(c) No.21291/2010 -14- 1980 (2) Ker.650) a learned judge of this Court observed that, in practice it is only when a question of confirmation is taken up by the Collector that there is occasion for him to scrutinize the relevant records, and if in that process the Collector finds reason for setting aside the sale, he has both the right and the duty to do so, after recording his reasons in writing. The purpose of the proviso to Section 54 of the Act in as much as, ordinarily, it is only after the exercise of that power, the Collector to pass any order to set aside the sale notwithstanding that no application under Sections 53 and 54 has been made. It is held that the Collector has no jurisdiction to set aside the sale after a period of 30 days from the date of the sale would virtually defeat the very purpose of Section 54 of the Act. After the expiry of that period the Collector has to apply his mind as to the legality and the reasonable of the price fetched for the auction. But in the case at hand it is evident that the Collector had exercised the power under Section 54 and already confirmed the sale in question. The view adopted in P.V. W.P.(c) No.21291/2010 -15- Joseph's case (cited supra) has been reiterated in a later decision in Captain V. District Collector (1996 (2) KLT 898. 11. Considering the settled legal principles as above, it is evident that the question to be considered is as whether the Revisional authority can direct the exercise of the power vested under the proviso to Section 54 when the Original authority had already confirmed the sale without finding any reason to exercise such power. Probably in a case of exercise of power under Section 83 (1) on suo motu the Revisional authority may be empowered to order such an exercise after setting aside the order of sale. But in the case at hand the 2nd respondent had exercised the power only on the basis of an application for revision filed by the 6th respondent. Therefore, exercise of the suo motu power was not at all warranted and sustainable. Further, the remand made for re-consideration on the basis of a ground which already adjudicated and rejected in an application filed under Section 53, is unsustainable. Therefore, the ground W.P.(c) No.21291/2010 -16- upon which re-consideration was directed by the 2nd respondent, is totally unsustainable. In this regard it is also pertinent to note that a Division Bench of this Hon'ble Court in Ammalu Sumathi V. Kesavan Nair (1993 (1) KLT 220) observed that there is no provision in the Act conferring power of review on any of the authorities having jurisdiction to confirm or set aside an auction sale. It is held that power of review can be resorted only in case of glaring omissions, patent mistakes or grave errors and not for re- hearing the case in its entirety. It is also well settled proposition that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. Review after the confirmation of the sale is not available to the original authority and hence such power cannot be exercised by the Revisional authority also. 12. On the basis of the findings as stated above I am of the view that Ext.P7 order passed by the Revisional authority is unsustainable. Consequently Exts.P6, P7 and P9 are liable to be declared as unsustainable. W.P.(c) No.21291/2010 -17- 13. On an evaluation of Ext.P6 order it is evident that none of the grounds raised by 6th respondent are sustainable in view of the contentions of the revenue authorities before the 2nd respondent and also in view of the procedure borne out from the records. Therefore, I am of the view that a remand of the matter for any further consideration by the Revisional authority is not warranted. This is especially because of the fact that the sale had taken place as early as on 30-06-2008 and the petitioner had deposited the entire amount at that time itself. It is also evident that a declaration under Section 57 (1) has been issued and draft sale certificate was issued by the 4th respondent as early as in December 2008 and the petitioner had even remitted the land tax with respect to the property. Further, it is worth to note that, there is no counter affidavit filed by the 6th respondent and no arguments were advanced on behalf of the said respondent. 14. In the result, writ petition is allowed and Exts. P6, P7 and P9 are hereby quashed. The 4th respondent is W.P.(c) No.21291/2010 -18- directed to take further steps pursuant to Ext.P2 proceedings through which the sale is confirmed in favour of the petitioner, for execution of the sale certificate and for handing over possession of the property, as early as possible, at any rate within two months from the date of receipt of a copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. OKB/AMG True copy P.A to Judge