Basant Balaji, J.
1. The additional appellant Nos.3 to 5 are the legal heirs of the original appellants. W.P. (C) No.11937 of 2009 was filed by the first appellant for quashing Ext.P8 order and to direct the respondents to restore 15 cents of landed property situated in Re.Sy.No.265/2 and the machine kept therein to the appellant, as the entire sales tax arrears in respect of the said land have been paid of. A declaration was also sought for that the Government has no authority or right to retain the land and property owned by the father of the first appellant after the receipt of the entire tax arrears due to the tax department.
2. The facts of the case in brief are as follows:-
The original appellant’s father started a foundry, namely Ranee Metal Industry. After his death, the first appellant and his brother were conducting the unit. There were sales tax arrears for the period 1994-95 and 1995-96 to the tune of Rs.1,19,915/-. Since the Sales Tax arrears were not remitted, revenue recovery proceedings were initiated against the first appellant. The property and the building together with the machine were attached. The property of the appellants was put to auction and since there were no bidders, the Government purchased the property as bought-in-land for Rs.1/- under Section 50(2) of the Kerala Revenue Recovery Act (for short ‘the Act’). Thereafter, the appellants approached the Government expressing their willingness to clear the tax liability. The Government, as per Ext.P4 order, granted stay of the revenue recovery proceedings subject to the condition that the appellant shall pay 40% of the amount remitted before 29.9.2001 and the balance in six instalments.
3. It is the case of the appellants that the father of the first appellant had fully complied with the conditions stipulated in Ext.P4 and that the entire amounts were remitted as directed. In the year 2008, the appellants came to know that the Government purchased the property under Section 50(2) of the Act and immediately they sent representation to release the property since the entire liability was wiped off. Repeated reminders were also sent and ultimately Ext.P8 was issued on 18.2.2009 stating that the request of the father of the appellant for re-conveyance or restoration of the land was not possible, since the request for restoration is made after two years after the confirmation of the sale.
4. A counter affidavit was filed in the Writ Petition on behalf of the first respondent wherein it is stated that as per Revenue Recovery Certificate Nos.343 and 344/98-99 dated 26.2.1999, the Additional Sales Tax officer has requested the first respondent to recover the sale tax arrears from the appellants amounting to Rs.1,19,915/-. Notice in Form No.1 and 10 under Sections 7 and 34 of the Act were issued to the appellants and the same were published by affixture on 26.3.199 by the Village Officer, Cheruvannur. Even after the service of notice, since the appellants did not turn up to clear up the arrears, the landed property of the appellants measuring 10 cents comprised in Re.Sy.No.265/2 of Cheruvannur Village in Kozhikode Taluk was attached on 3.7.1999 and after complying all procedures, the property was put for sale on 8.11.2000, 28.12.2000 and 8.2.2001. Since there were no bidders for the auction, the property was purchased on behalf of the Government for an amount of Rs.1/- on 8.2.2001. The sale was confirmed by the Revenue Divisional Officer as per order dated 8.6.2001. Later on 27.8.2001, the Revenue Minister allowed instalment facilities. Moreover there were other demands towards sale tax arrears pending against the appellant as per requisition issued by Commercial Tax Officer, III Circle, Kozhikode. It was also contended that the request for reconveyance of the land bought-in by the Government was received after a period of 9 years after the confirmation of sale and as per the existing Government Orders, reconveyance of bought-in-land to the original land owner or legal heir is applicable only if the owner remits the full amount and applies for re-conveyance within two years from the date of confirmation of sale. It was also averred that sale notice in Form No.16 as provided under Section 49(2) of the Act was served on the appellants and it was duly published in the Gazette Notification dated 9.11.1999. Since all steps and procedures were followed under the Act before conducting the sale, the sale conducted is not vitiated and the question of re-conveyance does not arise.
5. The learned Single Judge, by the impugned judgment, found that the request made by the appellants for re-conveyance of the amount which was purchased by the Government as bought-in-land after the sale was confirmed though after the remittance of the entire amount due is legally not sustainable in view of the decision laid down by this court in State of Kerala v. George Jacob [2010 (3) KLT 483] and hence dismissed the Writ Petition. Aggrieved by the judgment of the learned Single Judge, this Writ Appeal is filed by the legal heirs of the original writ petitioner, as the original petitioner died pending consideration of the appeal. The wife of the original petitioner, though impleaded as additional second appellant also expired and thus the children have come on record as per order dated 2.11.2021 in I.A. No.1 of 2021.
6. Heard the learned counsel for the appellants Smt. A C Vidya and the learned Special Government Pleader Shri Hanil Kumar.
7. The learned counsel for the appellants contended that the entire sale procedures is vitiated as the procedure contemplated under Section 49 of the Act is not followed. Section 49 of the Act prescribes that the notice of the sale of the property shall be duly served and published at least thirty days before the date of sale, which the respondents have failed to comply and sale of the property conducted on 8.2.2001 is illegal.
8. The learned special Government Pleader, on the other hand, submitted that in the counter affidavit filed in the Writ Petition itself it was specifically stated that sale notice and Form 16 as provided under Section 49(2) of the Act were duly served on the appellants. It was published in the village office as well as in the Gazette and there is no procedure irregularity and hence, there is ground for setting aside the sale. Since the main contention raised by the appellants was that the notice of sale as contemplated under Section 49(2) of the Act is not served on him, we directed the special Government Pleader to produce the original files in respect of the property which was the subject matter of the sale. The special Government Pleader produced the entire files along with note files before us for our perusal. It is seen from the original revenue recovery files that the sale of property was adjourned eight times for want of bidders. The original file does not disclose that notice was duly served on the appellants before the sale conducted in all the seven occasions. Moreover, the note file which was also produced for perusal shows that there are endorsement to the effect that Form No.16 notice is not seen served on the defaulter and the service of Form 16 notice is statutory. Endorsements are there in respect of the sales conducted on 30.2.1999, 21.2.2000, 26.4.2000, 7.6.2000, 3.8.2000, 8.11.2000 and 8.2.2001. For a clear understanding of the facts of the case and the procedure adopted by the Revenue Officer, the endorsements of the Tahsildar dated 4.1.2000, 1.2.2000, 26.4.2000, 8.6.2000 and 7.1.2000 are extracted hereunder:
The sale is posted to 30.12.99. Please see the report of the Village Officer, Cheruvannur at page 41 CF. The Form 16 notice is not seen served on the defaulter. The serving of Form 16 notice is statutory. So also there are no bidders also. In this circumstances the sale may be adjourned. Copy of document also to be gathered.”
The land sale is posted to 21.2.2000. Please see the report of Village Officer, Cheruvannur at page 49F. The form 16 notice has not been served on the defaulter since the stipulated period is over. Hence the land sale may be re-posted. Date may be noted”.
“Attended village office, Cheruvannur. No bidders were present. The served copy of the sale notice is not seen in this file. Sale may be adjourned. Next sale may be conducted on 7.6.2000.”
“I attended village office on 7.6.2000. In this case also the Village Officer has omitted to serve notice in Form 16 to the party. Copy of the document is also not available. As such the sale may be adjourned to 3.8.2000 for rectifying these defects.”
“Served copy of the Form 16 has not been received from Village Officer and the publication of sale notice has not been received from Cheruvannur Kollam Grama Panchayath. Copy of the Document F is also not available. Land sale may be conducted on 8.11.2000.”
The endorsement by the Tahsildar on 4.1.2000 clearly shows that service of Form No.16 notice is statutory. So, it is not a case in which the respondents were unaware of the legal position. It was with full knowledge that statutory provision are violated that the sale was conducted and bid by the Government itself whereby substantial prejudice and irreparable loss has been caused at the hands of the respondents.
9. Section 49 of the Act deals with the Procedure for Sale of Immovable Property, which is extracted as follows:-
“49. Procedure for sale of immovable property.- Immovable property attached under this Act may be sold in accordance with the following provisions, namely:-
(1) The sale shall be by public auction to the highest bidder. The time and place of sale shall be fixed by the Collector or the auhorised officer having jurisdiction over the village in which the property is situate.
(2) Previous to the sale, the Collector or the auhorised officer, as the case may be, shall issue a notice thereof in English and in Malayalam and also in the language of the locality where such language is not Malayalam, specifying,-
i. the name of the defaulter;
ii. the position and extent of the land and of his buildings and other known improvements thereon;
iii. the amount of revenue assessed on the land, or upon its different sections;
iv. the amount for the recovery of which the sale is ordered;
v. the proportion of the public revenue due during the remainder of the current financial year; and
vi. the time, place and conditions of sale.
The notice shall be duly served and published at least thirty days before the date of sale.
(3) A sum of money not less than fifteen per cent of the bid amount of the immovable property shall be deposited by the person declared to be the purchaser with the officer conducting the sale immediately after such declaration and where the remainder of the purchase money is not paid within thirty days of the date of the sale, the money so deposited shall be liable to forfeiture.
(4) The officer conducting the sale may, in his discretion, adjourn the sale to a specified day and hour, recording his reasons therefor. If the date to which the sale is so adjourned is within sixty days of the original sale, notice of the adjourned sale shall be published in the taluk and village offices concerned, in the office of the local authority within whose jurisdiction the property is situate and also on some conspicuous part of the immovable property brought to sale. If the date of the adjourned sale is beyond sixty days of the original sale, fresh notice shall be served and published as if it were the original sale.
(5) where the purchaser refuses or omits to deposit the said sum of money or to complete the payment of the remaining purchase money, the property shall be re-sold at the expenses and hazard of such purchaser, and the amount of all loss and expense which may attend such refusal or omission shall be recoverable from such purchaser in the same manner as arrears of public revenue due on land. Where the immovable property is sold at the second sale for a higher price than at the first sale, the difference shall be the property of the defaulter.
(6) All persons bidding at the sale shall be required to state whether they are bidding on their own behalf or as agents, and in the latter case to deposit a written authority signed by their principals. If such requisition be not complied with, their bids shall be rejected.”
10. Sub clause (2) of Section 49 of the Act stipulates that notice shall be ‘duly served’ and published at least 30 days before the date of sale.
11. Section 50 of the Act deals on bidding on behalf of Government as follows:
“50. Bidding on behalf of Government.-
(1) When an immovable property is put up for sale at the time and place specified in the notice under clause (2) of section 49 for the recovery of arrears of public revenue due on land, if there be no bid or if the highest bid be insufficient to cover the said arrears and those subsequently accruing due up to the date of sale, together with interest and cost of process, the officer conducting the sale shall postpone the sale to another date which shall not be later than sixty days from the date of the first sale and give notice of the subsequent sale as required under clause (4) of section 49.
(2) When the property is put up for sale on the date to which it was postponed under sub-section (1), at the time and place specified in the notice,-
(i) if there be no bid, the officer conducting the sale may purchase the property on behalf of the Government for an amount of ten paise; and may apply to the Collector to set aside the sale.
(ii) if the highest bid be insufficient to cover the arrears referred to in sub-section (1) and those subsequently accruing due up to the date of the sale and interest and cost of process, such officer may bid on behalf of the Government for an amount higher than such bid by ten paise, and in either case the Government shall acquire the property subject to the provisions of this Act.
(3) The provisions of clause (3) of Section 49 and Section 84 shall not apply to cases where immovable property is purchased on behalf of the Government under this section.
(4) Notwithstanding anything contained in this Act, after the confirmation of the sale, all the right, title and interest of the defaulter, purchased on behalf of the Government, shall be deemed to have vested in the Government from the date of purchase and if the defaulter is in actual possession of the property or if he is entitled to possession, the Collector or the authorised officer shall, immediately after the confirmation of the sale, take possession of the property. If the Collector or the authorised officer is opposed or impeded in taking possession, he shall, if a Magistrate, enforce the surrender of the land to himself and, if not a Magistrate, he shall apply to a Magistrate, and such Magistrate shall enforce the surrender of the land to the Collector or the authorised officer, as the case may be.”
12. Sub Section 4 of Section 50 of the Act clearly state that after the confirmation of sale, all the right, title and interest of the defaulter vests with the Government and if the defaulter is in actual possession of the property, the Collector or the authorised officer shall immediately after confirmation of the sale, take possession of the property.
13. Section 54 of the Act deals with Confirmation of Order or Setting Aside the Sale. After expiry of 30 days from the date of the sale, if no application to have the sale set aside is made under Section 52 or Section 53 or if any such application has been made and rejected, the Collector shall make an order confirming the sale.
14. Sections 74 and 75 of the Act deal with Service of notice and Mode of Publication of notices, etc, as follows:-
“74. Service of notice.- Where any [notice, demand or order] has to be served under this Act, such service shall be made-
(a) by delivery of a copy of such [notice, demand or order] to the person concerned, or, where such delivery is not possible, to an adult male member of his family, or, where this is not also possible, by affixture of a copy of the [notice, demand or order] on the outer door of his usual place of residence: or
(b) by registered post.
75. Mode of publication of notices, etc. –
(1) Where any notice, order or list is required to be published under the Act, the publication shall, unless it is expressly provided otherwise, be made as follows:-
(i) by affixture of a copy of the notice, order or list-
(a) where it relates to immovable property, on a conspicuous part of the property; or
(b) where it relates to movable property, on a conspicuous part of the premises from where the property was attached; and
(ii) by affixture of a copy of the notice, order or list on the office of the village in which, and on the office of the local authority within whose jurisdiction, the attachment or sale takes place.
(2) The collector or the authorised officer may, in his discretion, publish any notice, order or list in the Gazette or in one or two newspapers having circulation in the area in which the attachment or sale takes place or in both.”
15. From Section 74 of the Act it is clear that where any notice has to be served under the Act, it shall be served by delivery of a copy of the notice or demand to the person concerned or if it is not possible to an adult male member of his family or affixture of the same on the outer door of usual place of residence or by registered post. In this case, it is crystal clear from the records produced by the special Government Pleader that the notice contemplated under Section 49(2) of the Act is not served on the appellants at any point of time and the sale was conducted behind his back. So the sale is vitiated by irregularities. In such a case, the sale conducted on 8.2.2001 is illegal and void. The counsel for the appellants submitted that he came to know of the sale of the property as well as the confirmation only in the year 2008 and immediately he submitted an application for re-conveyance of the property since within two months of the confirmation of the sale, the Government has allowed him to remit 40% of the total outstanding on or before 29.9.2001 and the balance in six instalments which he has duly complied and hence, the property should have re-conveyed back to him.
16. The counsel for the appellants relied on the decision of the Division Bench of this court reported in Chandrasekharan C.K. v. State of Kerala and others [2018(3) KHC 399], where it was held that power of restitution of court is edificed on the acme principles of justice, equity and fair play and wherever it becomes necessary, writ court would not refrain from passing orders to ensure that litigants, who are illegally and unfairly divested of their properties, are restituted appropriately so that the allegation of unjust enrichment is not perpetrated. It was further held in the said decision that when basis of sale itself is eroded, State is not right in contending that there is no legal provision for re-conveyance of
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bought-inland. 17. It is an undisputed fact though controverted by respondents that notice has not been duly served on the appellants and the records duly produced by the State does not show that the notice as contemplated under Section 49(2) of the Act was duly served more so when the note file clearly states that notice could not be served on the petitioner/defaulter. In such a situation, the sale conducted on 8.2.2001 is with material irregularity and the same is illegal. Once the sale is found to be illegal, this court, under Article 226 of the Constitution of India, can set aside the sale and we do so. It is declared that the sale conducted on 8.2.2001 and the purchase of sale on behalf of the Government as bought-in-land is set aside. 18. The above discussion takes us to the next question viz., once the sale is set aside as illegal, the property as a consequence will have to be restored to the original owner. For the denial of right to property of appellant is contrary to law and the deprivation is unconstitutional. We notice that pending Writ Petition, the property which was taken over by the Government as bought-in-land, was assigned to two landless persons 2.5 cents each. The assigned land now stands in their name and are in possession. In the peculiar circumstances of the case, we order that property has to be restored to appellant, the assignees/ third parties, who are affected. The assignment of 2.5 cents in favour of the third party/assignee is under a special category viz. physically handicapped. So to balance the interest of the 3rd party and protect the right of appellant, we are of the considered view that the relief is moulded commensurating with the facts and circumstances recorded in this judgment. In such a situation, the only option available is to direct the respondents to assign equal extent of land, with similar market value taken in any other area of the same Taluk in the same district or alternatively acquire the subject land in accordance with law, pay compensation as early as possible, preferably within six months from the date of receipt of a copy of this judgment. Writ Appeal is allowed as above.