IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 20069 of 2010(G) -------------------------- PETITIONER(S): --------------- 1. K.RAGHUNATHAN ASARI, AGED 46 YEARS, PALLIVETTA, PLAVILA VEEDU, PANAKODU.P.O, THOLIKODU. 2. CHANDRAN ASARI, AGED 48 YEARS, PALLIVETTA, PLAVILA VEEDU, PANAKODU.P.O, THOLIKODU. BY ADV. SRI.LATHEESH SEBASTIAN SRI.M.FATHAHUDEEN RESPONDENT(S): --------------- 1. PRINCIPAL SECRETARY TO GOVT., DEPARTMENT OF REVENUE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM - 695 001 3. THE VILLAGE OFFICER, THOLICODU VILLAGE, THOLICODU - 695 541 4. THE BRANCH MANAGER, THE INDIAN BANK, THOLIKODU BRANCH - 695 541 BY GOVT. PLEADER SRI.MATHEW GEORGE VADAKKEL R4 SRI.S.SREEKUMAR - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.20069 of 2010-G ---------------------------- Dated this the 28th day of June, 2010. J U D G M E N T The deceased mother of the petitioners had availed a loan from the fourth respondent Bank, creating mortgage in respect of the property of nearly 10 cents of land, covered by the document bearing No.1453/1984 of SRO, Vithura. The loan amount could not be satisfied on time, under which circumstances, the fourth respondent sent a requisition to the revenue authorities seeking for realization of the amount due, invoking the machinery under the Kerala Revenue Recovery Act. 2. Pursuant to the steps taken under the Kerala Revenue Recovery Act, the property in question was put to public auction, but since there was no bidder, the property was finally bid by the Government, as ‘bought-in-land’ as provided under Section 50(2) of the Kerala Revenue Recovery Act and it became vested with the Government; who did not clear the liability to the Bank. Subsequently, the liability to the Bank was cleared by the petitioner, as borne by Ext.P5 certificate issued by the Bank, requesting the W.P(C) No.20069 of 2010-G 2 Village Officer ie. the third respondent to close the revenue recovery proceedings in furtherance to the compromise settlement. The collection charges and notice charges mentioned in Ext.P1 have also been satisfied by the petitioners, as borne by Ext.P2. After satisfying the liability as above, though the petitioners approached the second respondent seeking for re-conveyance of the property, the application dated 12.8.2009 submitted in this regard was turned down by the second respondent, as per order dated 29.3.2010, holding that the property has already been taken by the Government under Section 50(2) of the Revenue Recovery Act and since the application for re-conveyance was preferred only after two years ie. beyond the stipulated time, the request of the petitioners was not liable to be entertained. 3. Even though the petitioners approached the first respondent/Principal Secretary to Government of Kerala, the order passed by the second respondent was confirmed and the application was rejected as per Ext.P4 order dated 17.4.2010. Exts.P3 and P4 are under challenge in this Writ Petition. 4. Heard the learned Government Pleader appearing on behalf of the respondents 1 to 3 and Sri.S.Sreekumar, the learned W.P(C) No.20069 of 2010-G 3 standing counsel appearing for the fourth respondent Bank as well. 5. The rights and liberties of the persons concerned to have the property re-conveyed in a situation similar to this, had come up for consideration before this Court earlier and after considering the legal and factual position, it was held by this Court as per the decision reported in Ayisha Teacher V. District Collector (2009(4) KLT 53) that, in the case of recovery proceedings based on the requests made by the concerned institution notified under Section 71 of the Kerala Revenue Recovery Act, it was not proper for the Government to have bid the property in the name, the Government making unlawful gains. The sale involved in the said case was set aside and the property was directed to re-conveyed to the party concerned. Aggrieved by the above decision, the matter was taken up by the Government in appeal and after considering the factual position, final verdict was passed by the Division Bench as per the decision reported in District Collector V. Subaida Beevi (2010(1) KLT 913), whereby the sale set aside was confirmed, though for another reason, however, observing that the State Government is empowered to conduct the sale; but making it clear that, the property ought to have been bid in the name of requisitioning W.P(C) No.20069 of 2010-G 4 authority and not in the name of Government. In other words, the observation made by this Court in the decision reported in Ayisha Teacher V. District Collector (2009(4) KLT 53) that the Government cannot have any unlawful enrichment on the basis of the requisition made by somebody else stands upheld. 6. In the instant case also, there is no case for the respondent State that, any amount was liable to be paid by the petitioner to the Government to be realized as ‘arrears of public revenue due on the land’. The amount to be paid by the petitioner was to the fourth respondent Bank, which was sought to be recovered, as if it were arrears of public revenue due on land, invoking the machinery under the Revenue Recovery Act by virtue of the enabling provision under the said Act. It is very much evident that the liability to the fourth respondent Bank has been cleared by the petitioner, as borne by Ext.P5, certificate issued by the Bank. The liability with regard to the collection charges and such other expenses payable to the Revenue Department in connection with the proceedings have also been satisfied as borne by Ext.P2. In the above circumstances, there is absolutely no justification for having the property retained at the hands of the Government. W.P(C) No.20069 of 2010-G 5 7. In the above facts and circumstances, Exts.P3 and P4 orders impugned in the Writ Petition are set aside and the property is directed to be re-conveyed to the petitioner at the cost of the petitioner. The proceedings in this regard shall be finalized by the second respondent, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment before the second respondent for taking further steps and shall satisfy all the requirements, in accordance with law. The Writ Petition is allowed as above. No cost. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge ab W.P(C) No.20069 of 2010-G 6