IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 WP(C).No. 148 of 2010(P) ------------------------ PETITIONER(S): --------------- P.K.BALAN, S/O. KUMARAN, PUZHAKKADAVIL HOUSE, K.S.E.B., E-10-4, ASHOK NAGAR, AYYANTHOL, THRISSUR DISTRICT. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): --------------- 1. TAHSILDAR, KODUNGALLUR. 2. REVENUE DIVISIONAL OFFICER, THRISSUR. 3. CHANDRA KALADHARAN, NEDUMPARAMBIL HOUSE, MATHILAKAM, KODUNGALLUR. ADV. SRI.K.G.BALASUBRAMANIAN FOR R3 GP SRI.V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 148 of 2010 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF AN INTERIM ORDER PASSED ON 18.11.05 BY THIS HONOURABLE COURT EXT.P2- TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE RDO, THRISSUR ON 18.2.08 EXT.P3- TRUE COPY OF THE JUDGMENT MADE IN WP(C).11124/09 DATED 8.7.09 EXT.P4- TRUE COPY OF THE ORDER PASSED BY THE RDO, THRISSUR VIDE PROCEEDINGS NO.B1-6523/09 DATED 5.11.09 EXT.P5- TRUE COPY OF THE ORDER DATED 7.10.08 PASSED BY THE RDO, THRISSUR EXT.P6- TRUE COPY OF THE CERTIFICATE OF IMMOVABLE PROPERTY RELATING TO SALE OF PROPERTIES MENTIONED IN EXT.P5 ISSUED BY THE 2ND RESPONDENT EXT.P7- TRUE COPY OF THE ORDER PASSED BY THE HONOURABLE SUPREME COURT OF INDIA IN CIVIL APPEAL 7844-46/2009 DATED 27.11.09 EXT.P8- TRUE STATEMENT OF ACCOUNT SHOWING THE DETAILS OF AMOUNT PAID BY THE PETITIONER AND COLLECTED BY THE 1ST RESPONDENT BY AUCTIONING THE PROPERTIES OF THE PETITIONER (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).148/2010 -------------------- Dated this the 12th day of January, 2010 JUDGMENT 1. Though notice has been served by special messenger to all the respondents, there is no appearance on behalf of the 3rd respondent. 2. The challenge in this writ petition is against Exts.P4 and P5. To the extent it is relevant, facts pleaded are that in relation to the conduct of a toddy shop for the period 1997-2000, Revenue Recovery Proceedings were initiated against the petitioner, he being one of the licensee. That was challenged unsuccessfully in a writ petition and on its dismissal, an appeal filed was also dismissed. Petitioner thereupon filed a Special Leave Petition, which was admitted and was pending in the Apex Court. 3. During the pendency of the SLP, recovery proceedings continued and the immovable properties of the petitioner, including a residential house, were put on auction on 12.2.2008. Petitioner states that immediately thereafter on 18.2.2008, he moved the 2nd respondent by filing Ext.P2 appeal, seeking to set W.P.(C).148/10 2 aside the auction. According to the petitioner, there was no progress in the matter and complaining of delay in the disposal of Ext.P2 appeal, he approached this Court by filing W.P.(C). 11124/2009. That writ petition was disposed of by Ext.P3 judgment rendered on 8.7.2009, directing that if Ext.P2 was received and was pending same shall be taken up, considered and disposed of in accordance with law, within three months from the date of receipt of a copy of the judgment. 4. Petitioner states that pursuant to Ext.P3 judgment, he was issued a notice of hearing. It is stated that he appeared and on perusal of the facts, it was revealed that the 2nd respondent had already rejected the appeal by Ext.P5 order dated 7.10.2008. When this was discovered, Ext.P4 order was again passed by the 2nd respondent on 5.11.2009, in purported compliance with Ext.P3 judgment reiterating that the appeal was already rejected. It was thereupon that this writ petition is filed mainly contending that rejection of appeal by Ext.P5, was without notice and thus in violation of principles of natural justice. It is also his case that the material irregularities in Ext.P2, though raised were not considered while arguing the same. Petitioner also has a case that the auction has been set aside by the Apex W.P.(C).148/10 3 Court in Ext.P7 order and that going by Ext.P7 order, the payments already made by the petitioner are in excess of what was actually due and therefore, the excess amounts paid are due to be refunded to him. 5. As far as this writ petition is concerned, all that this Court is concerned with is the validity of Exts.P4 and P5. If as contended by the petitioner, the said orders have been issued in violation of principles of natural justice, necessarily the orders will be invalidated and matter will have to be reconsidered by the 2nd respondent putting the petitioner, the 3rd respondent and the Deputy Commissioner of Excise, Thrissur, on notice and after hearing them and considering the entire materials available with them. In this case, although the learned Government Pleader attempted to sustain Exts.P4 and P5, I am inclined to think that, in the circumstances of the case, the petitioner is justified in his contention that the order was passed without putting him on notice. If it were otherwise, petitioner would not have prosecuting W.P.(C).11124/2009 resulting in Ext.P3 judgment. In such circumstances, I agree with the learned counsel for the petitioner that Exts.P4 and P5 orders were issued in violation of principles of natural justice and for W.P.(C).148/10 4 that reason, these orders are liable to be invalidated. Accordingly, I quash Exts.P4 and P5 and the writ petition is disposed of with the following directions. 6. The 2nd respondent shall reconsider Ext.P2 appeal filed by the petitioner with notice to the petitioner, the 3rd respondent and the Deputy Commissioner of Excise, Thrissur. This shall be done as expeditiously as possible, at any rate, within six weeks of production of a copy of this judgment. While orders are passed as above, 2nd respondent shall duly advert to Ext.P7 order passed by the Supreme Court. It is directed that depending upon the outcome of Ext.P2, if Ext.P6 certificate of sale of immovable property issued in favour of the 3rd respondent is to be revised, necessary order in that behalf will also be passed by the 2nd respondent. 7. Petitioner may produce a copy of this judgment before the 2nd respondent for compliance. ANTONY DOMINIC, Judge mrcs