IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26677 of 2008(A)
1. K.GOPALAKRISHNAN,S/O.CHINNAN NAIR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. THE PRINCIPAL SECRETARY TO GOVERNMENT
3. THE DISTRICT COLLECTOR,
4. THE TAHSILDAR, REVENUE RECOVERY
For Petitioner :SRI.R.RAMADAS
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :02/12/2010
O R D E R
P.R. RAMACHANDRA MENON J.
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W.P (C) No. 26677 Of 2008
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Dated, this the 2nd day of December, 2010
JUDGMENT
The issue involved in this Writ Petition is, whether the property taken
over by the Government as ‘bought in land’ under Section 50 (2) of the
Kerala Revenue Recovery Act, pursuant to the default made by the
petitioner, is liable to be re-conveyed to him, admittedly when the liability to
the revenue has been satisfied.
2. The sequence of events as narrated in the Writ Petition shows
that the petitioner, who was running a small scale industry, engaged in
manufacturing and sale of wire cut bricks and hollow bricks, had availed a
loan from the Kerala Financial Corporation, on the strength of the property
concerned given as security. The petitioner, because of some unforeseen
circumstances turned to be a defaulter, whereupon the KFC sought to
attach the properties resorting to the remedy under the Kerala Revenue
Recovery Act and the attachment was effected on 22.12.2000. Later,
observing that, there was some sales tax arrears to be cleared by the
petitioner, the property was sought to be proceeded against at the instance
of the sales tax authorities and accordingly, the 4th respondent, invoking the
provisions under the Kerala Revenue Recovery Act proceeded against the
properties of the petitioner in the year 2003. The liability in respect of the
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assessment years 1991 – ’92 to 1993 – ’94, which was sought to be
recovered from the petitioner was stated as ` 27,384/-. The petitioner
made an attempt to clear the liability by effecting some paltry payments,
such as ` 2,000/- on 09.02.2000 and ` 3,000/- on 05.02.2001, as borne by
Ext. P1 receipt. But, the repayments could not be effected thereafter,
under which circumstances, the property having an extent of 6.500 cents
was put to sale by way of public auction. The steps taken in this regard
turned to be futile, as there was no bidder to purchase the property, under
which circumstance, the Government decided to bid the property, invoking
the power and procedure as contemplated under Section 50 (2) of the
Kerala Revenue Recovery Act and accordingly, the property was bid by the
Government for a notional amount of ` 1 as ‘bought in land’. The said
event was on 27.03.2003. Thereafter the sale was confirmed as per Ext.
P3 proceedings dated 31.01.2004.
3. Nearly three years after the confirmation of the sale as aforesaid,
the 4th respondent issued Ext. P4 communication dated 01.08.2007, giving
an idea and impression to the petitioner that the property already taken
over by the Government as ‘bought in land’ could be re-conveyed to him, if
the entire dues to the Government, as stated therein towards the principal
amount, interest and cost was satisfied, however, making it clear that, an
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application had to be submitted in this regard and that the authority to
consider and pass appropriate orders was none other than the
Government. Believing the words of the 4th respondent to be true, the
petitioner decided to clear the entire liability to the sales tax department,
which was quantified in Ext. P4 as ` 73,858/ and accordingly, the
petitioner remitted a total sum of ` 74,687/-, due as on the date of
clearance on 22.10.07, as borne by Ext. P5 receipt. After satisfying the
liability as above, the petitioner preferred Ext. P6 representation before the
4th respondent for causing the property to be re-conveyed as assured in
Ext. P4.
4. It appears that the representation preferred by the petitioner was
admittedly forwarded by the 4th respondent for further steps to the higher
authorities. Later, the petitioner was served with Ext. P8 communication
dated 30.06.2008, informing that, though the petitioner had cleared the
entire liability, the application preferred by the petitioner for re-conveyance
could not be considered, as it was beyond the period of two years as
stipulated in the existing rules/guidelines. The petitioner has approached
this Court challenging Ext. P3 confirmation of sale and Ext. P8
communication turning down the request of the petitioner for causing the
property to be re-conveyed.
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5. Heard the learned Government Pleader appearing on behalf of the
respondents as well.
6. The learned counsel for the petitioner submits that the course and
conduct pursued by the respondents is quite arbitrary and illegal. The
petitioner was made to understand that the property would be re-conveyed
to the petitioner, once the entire liability to the State was cleared, which fact
as stated in Ext. P4, is not disputed by filing any counter affidavit. It is also
stated that the petitioner, based on the assurance given had cleared the
remaining liability as well, which was to be paid to the Kerala Financial
Corporation, who had attached the property much earlier in the year 2000,
who in turn has issued Ext. P7 clearance certificate in this regard. This
being the position, the stand taken by the respondents cannot, but be
deprecated, which hence is liable to be intercepted by this Court, submits
the learned counsel for the petitioner.
7. The learned Government Pleader appearing for the respondents
submits that Ext. P8 communication has been issued, taking note of the
contents of the guidelines issued by the Government in this regard,
specifying a period ‘two years’ so as to prefer an application, if at all any re-
conveyance is desired.
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8. The issue to be considered is whether any unlawful gain is
intended to be extended to the Government, by virtue of the stipulation
under Section 50 (2) of the Kerala Revenue Recovery Act or whether the
said provision has been incorporated to protect the interest of revenue in
respect of the ‘defaulted amount’. It is brought to the notice of this Court
during the course of hearing that, the issue had been considered by a
Division Bench of this Court earlier inn W.A. 1742 of 2009, observing that
the property could be released to the owner/defaulter in the manner
specified therein. By virtue of the above binding precedent, this Court finds
that the petitioner is also entitled to get similar relief.
9. In the above circumstances, the impugned orders are set aside
and the 3rd respondent / District Collector is directed to reconsider the
application preferred by the petitioner in the light of the observations in the
judgment dated 09.07.2010 passed by the Division Bench of this Court in
W.A. 1742 of 2009 and pass appropriate orders, taking all consequential
steps to cause re-conveyance of the property to the petitioner in
accordance with law. This exercise shall be pursued and finalized, as
expeditiously as possible, at any rate, within three months, from the date of
receipt of a copy of this judgment. The petitioner shall produce a copy of
this judgment along with copy of the judgment in W.A. 1742 of 2009 before
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the District Collector within two weeks from the date of receipt of a copy of
this judgment.
The Writ Petition is disposed of.
P. R. RAMACHANDRA MENON, JUDGE
kmd