IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 OP.No. 14068 of 2000(Y) ----------------------- PETITIONER: ------------ ABRAHAM THOMAS, SON OF ABRAHAM, PALAKUNNAM ESTATE, VALAKAYAM, CHIRAKKADAVU P.O., VIA. KANJIRAPPALLY. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SMT.K.R.PRIYA SRI.S.MADHAVAN NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE COMMISSIONER FOR LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOTTAYAM. 4. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM. 5. THE TAHSILDAR, KANJIRAPPALLY. 6. THE DEPUTY TAHSILDAR (RR), KANJIRAPPALLY. ADDL. 7. K.R. CHANDRASEKHARAN NAIR, MANJU VIHAR, KOORALI P.O., KOTTAYAM. ADDK, R7 IS IMPLEADED AS PER ORDER DATED 23.6.2004 ON I.A. 3448/04 R1 TO R6 BY GOVERNMENT PLEADER SRI.K.P. PRADEEP R7 BY ADV. SRI.T.R.RAMACHANDRAN NAIR SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ONCMP 22757 OF 2000 IN OP 14068 OF 2000 DISMISSED 15.2.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF APPLICATION DATED 23.11.89 SUBMITTED BY PETITIONER TO THIRD RESPONDENT. EXT.P2 TRUE COPY OF NOTICE NO. B. 7370/89 DATED 16.12.89 ISSUED TO PETITIONER BY 4TH RESPONDENT. EXT.P3 TRUE COPY OF STATEMENT DATED 22.12.89 SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT. EXT.P4 TRUE COPY OF LETTER NO. B. 7370/89 DATED 22.12.89 ISSUED BY 4TH RESPONDENT TO PETITIONER. EXT.P5 TRUE COPY OF RECEIPT DATED 22.12.89 ISSUED TO PETITIONER BY 4TH RESPONDENT. EXT.P6 TRUE COPY OF PETITION DATED 8.2.2000 SUBMITTED BY PETITIONER TO 5TH RESPONDENT. 4TH RESPONDENT'S EXHIBITS: EXT.R4(a) RR REQUISITION NO. A1-668/86-87 DEATED 27.12.1988 OF THE ADDL. SALES TAX OFFICER, PONKUNNAM FORWARD VIDE LETTER NO. B4-5877/87 DATED 18.1.89 OF THE DISTRICT COLLECTOR, KOTTAYAM TO THE TAHSILDAR, KANJIRAPPALLY. EXT.R4(b) DEMAND NOTICE NO. B2-47/ST/89 DATED 1.2.89 UNDER SECTIONS 7 AND 34 OF THE RR ACT. EXT.R4(c) LETTER NO. B7370/89 DATED 4.1.90 OF THE RDO, KOTTAYAM. EXT.R4(d) PETITION DATED 10.8.90 SUBMITTED BY K.R. CHANDRASEKHARAN NAIR BEFORE THE TAHSILDAR (RR), KANJIRAPPALLY. EXT.R4(e) COPY OF THE DECREE IN OS NO. 241/88 DATED 30.10.89 EXT.R4(f) SALES DEED NO. 205/91 REGISTERED AT THE SUB REGISTRAR'S OFFICE, KANJIRAPPALLY DATED 12.12.90 EXT.R4(g) COPY OF OS NO. 553/90 FILED BEFORE THE MUNSIFF'S COURT, KOTTAYAM BY K.R. CHANDRASEKHARAN NAIR ON 8.8.90 EXT.R4(h) COPY OF THE JUDGMENT AND DECREE DATED 9.11.93 PRONOUNCED IN OS NO. 553/90 BY THEMUNSIFF COURT, KOTTAYAM. 7TH RESPONDENT'S EXHIBITS: EXT.R7(a) TRUE COPY OF THE SALE DEED DATED 12.12.1990 3 EXT.R7(b) TRUE COPY OF THE DECREE IN O.S. 553 OF 1990 DATED 9.11.1993 OF THEMUNSIFF COURT OF KOTTAYAM. EXT.R7(c) TRUE COPY OF THE JUDGMENT IN WPC 39257 OF 2003 DATED 12.12.2003 EXT.R7(d) TRUE COPY OF THE COMMUNICATION NO. 929/04-A7 DATED 23.2.2004 EXT.R7(e) TRUE COPY OF THE PLAINT IN OS NO. 241 OF 1988 OF THE DISTRICT COURT, KOTTAYAM DATED 22.4.1988 EXT.R7(f) TRUE COPY OF THE WRITTEN STATEMENT IN DO.DO. DATED 22.11.1988 EXT.R7(g) COPY OF THE JUDGMENT IN OS 241 OF 1988 DATED 30.10.1989 EXT.P7(h) TRUE COPY OF THE PLAINT I OS 553 OF 1990OF THE MUNSIFF COURT OF KOTTAYAM DATED 8.8.1990 EXT.R7(i) TRUE COPY OF THE WRITTEN STATEMENT IN OS 553 OF 1990 DATED NIL. EXT.R7(j) TRUE COPY OF THE JUDGMENT IN OS NO. 553 OF 1990 DATED 9.11.1993 TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 14068 OF 2000 -------------------------------------------- Dated this the 15th day of February, 2008 JUDGMENT This O.P. is filed for direction to the Government to reauction the property of the deceased defaulter so that petitioner can participate in the sale. According to the petitioner, sale first made in recovery proceedings was at much below the market value and the petitioner offered higher price. In order to establish petitioner's bona fides, Government permitted the petitioner to deposit Rs. 50,000/- which the petitioner deposited without any delay. However, Government Pleader submitted that resale could not be conducted because civil court decree prohibits it. No judgment or decree of the civil court is seen challenged in this O.P. It is for the Government to examine the effect of civil court judgment and decree and if there is no prohibition against resale, to proceed for sale in public auction and the petitioner is free to participate in the same. Since first sale below the market price is already cancelled, petitioner has no surviving grievance. Petitioner gets right to participate in the auction only if the Government is 2 proceeding to reauction the property again, which will depend upon whether liability still exits or whether there is any prohibitory order by civil court. However, since reauction is not so far held, petitioner is entitled to refund of the amount already deposited. Therefore there will be direction to the concerned authority to refund the amount deposited by the petitioner without any delay on production of a copy of this judgment. Respondents will consider the civil court judgment and decree and if there is no prohibition against sale of the property of the defaulter, property will be sold in public after due publication and petitioner is entitled to participate in the same. O.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 3