Writ Appeal No.797 of 2008 against the order dated 25.6.2008 passed by the learned single Judge in Writ Petition No.25194 of 2005 on the file of this Court.
Writ Appeal No.992 of 2008 against the order dated 25.6.2008 passed by the learned single Judge in Writ Petition No.12933 of 2005 on the file of this Court.
For appellant in W.A.No.797 of 2008: Mr.M.S.Govindarajan For appellant in W.A.No.992 of 2008: Mr.R.Selvakumar For respondents 1 to 3 in both W.As:
Mr.D.Sreenivasan, Addl.G.P.
For respondent-4 in both W.As:
Mr.V.Raghavachari, assisted by Mr.S.Umapathy COMMON JUDGMENT S.J.MUKHOPADHAYA,J In both the Writ Appeals, as common order of the learned single Judge in W.P.Nos.12933 and 25194 of 2005, dated 25.6.2008, is under challenge, they were heard together and disposed of by this common judgment.
2. The properties comprised in Patta Nos.786 and 789, belonging to the husband of the appellant-Kolanjiammal in W.A.NO.797 of 2008 and the father of the appellant-S.Karunanidhi in W.A.No.992 of 2008, were brought for auction-sale by the respondents 1 to 3 under the provisions of the Tamil Nadu Revenue Recovery Act, 1864. The appellants unsuccessfully challenged the auction-sale before the learned single Judge, giving rise to these Writ Appeals.
3. When the Writ Appeals were taken up earlier, the appellants showed their intention to pay back the dues of the respondents 1 to 3-State, and on 22.7.2008, the appellant-Kolanjiammal was allowed time to file supplementary affidavit and state as to whether she is agreeable to deposit the total amount with 10% interest with the Prohibition and Excise Department of the State, as was offered by the highest bidder. If it was agreed, then in that case, the Court may decide the question as to whether the amount(s) deposited by the auction-purchaser be refunded with 10% interest.
4. Pursuant to the Court's order, the appellant-Kolanjiammal deposited certain amount, as noticed by this Court on 13.4.2009 and prayer was made to set aside the sale.
5. Learned counsel appearing on behalf of the fourth respondent-auction purchaser opposed the prayer on the ground that the sale has taken place four years back and in the absence of any petition under Section 37-A or Section 38 of the Tamil Nadu Revenue Recovery Act, 1864, the Court should not interfere with the sale.
6. We have heard the learned counsel appearing for the parties and noticed their rival contentions.
7. It appears that the appellant-Kolanjiammal (W.A.No.797 of 2008) has deposited the following amounts during the pendency of the Writ Petition(s)/Writ Appeal(s):
Date of depost Amounts deposited 31.5.2005 Rs.32,600/-
22.8.2005 Rs.50,000/-
24.7.2008 Rs.2,09,300/-
28.3.2009 Rs.50,000/-
On the other hand, the appellant-S.Karunanidhi (W.A.No.992 of 2008) has deposited only a sum of Rs.30,000/- on 31.5.2005, i.e. during the pendency of the Writ Petition and no further amount was deposited by him.
8. Learned counsel appearing on behalf of the fourth respondent-auction purchaser brought to our notice and not disputed by the learned counsel for the appellants or the learned counsel appearing for the respondents 1 to 3-State that the auction took place on 29.7.2005 and the total amount was deposited by the auction-purchaser on the same day. Because of the pendency of the Writ Petition(s)/Writ Appeal(s), the confirmation of the sale was not made, and it was made on 23.7.2008.
9. Section 37-A of the Tamil Nadu Revenue Recovery Act stipulates application to set aside the sale of immovable property on deposition of the amount within 30 days, as quoted hereunder:
"Section 37-A: Application to set aside sale of immovable property on deposit--(1)Any person owning or claiming an interest in immovable property sold under this Act may, at any time within thirty days from the date of sale, deposit in the treasury of the taluk in which the immovable property is situated--
(a) a sum equal to five per centum of the purchase money.
(b) a sum equal to the arrears of revenue for which the immovable property was sold, together with penalty thereon and the expenses of attachment, management and sale and other costs due in respect of such arrears, and may apply to the Collector to set aside the sale.
(2) If such deposit and application are made within thirty days from the date of sale, the Collector shall pass an order setting aside the sale, and shall repay to the purchaser the purchase money so far as it has been deposited, together with the five per centum deposited by the applicant:
Provided that if more persons than one have made deposit and application under this section, the application of the first depositor to the officer authorized to set aside the sale shall be accepted.
(3) If a person applies under Section 38 to set aside the sale of immovable property, he shall not, unless he withdraws such application, be entitled to make an application under this section."
10. Per contra, under Section 38 of the Tamil Nadu Revenue Recovery Act, 1864, instead of deposition of such amount, application to set aside the sale can be filed only on certain grounds, as quoted hereunder:
"Section 38: Application to set aside sale:--(1) At any time within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity, or mistake, or fraud, in publishing or conducting it; but, except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof.
(2) If the application be allowed, the Collector shall set aside the sale and may direct a fresh one.
(3) Order confirming or setting aside sale--On the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under Section 37-A or under clause (1) of this section or if such application has been made and rejected, the Collector shall make an order confirming the sale, provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale.
3-A: No sale shall be set aside by the Collector under sub-section (2) or sub-section (3), unless the purchaser has had a reasonable opportunity of making his representations.
(4) Refund of deposit or purchase-money when sale set aside--Whenever the sale of any lands is not so confirmed or is set aside, the deposit or the purchase-money, as the case may be, shall be returned to the purchaser.
(5) On confirmation of sale Purchaser's name to be registered--After the confirmation of any such sale, the Collector shall register the lands sold in the name of the person declared to be the purchaser and shall execute and grant a certificate of sale between his seal and signature to such purchaser.
(6) Certificate of sale--Such certificate shall state the property sold and the name of the purchaser, and it shall be conclusive evidence of the fact of the purchase in all Courts and Tribunals, where it may necessary to prove the same; and no proof of the Collector's seal or signature shall be necessary, unless the authority before whom it is produced shall have reason to doubt its genuineness."
11. Admittedly, the appellants have not filed any petition to set aside the sale, which took place on 29.7.2005. Though confirmation of the sale has been made on 23.7.2008, that will not bring forward the date of sale for the purpose of counting the period of limitation of 30 days as stipulated under Section 37-A or Section 38 of the Tamil Nadu Revenue Recovery Act, 1864.
12. In the above circumstances, even if the appellants have deposited certain amounts during the pendency of the Writ Petitions/Writ Appeals before this Court, as they cannot file a petition to set aside the sale either under Section 37-A or under Section 38 of the Tamil Nadu Revenue Recovery Act, 1864 at this belated stage, and more than four years have passed after the sale took place, we are not inclined to grant the relief in the present Writ Appeals. The Writ Appeals are accordingly dismissed. No costs. The Miscellaneous Petitions are closed.
13. In view of the dismissal of the Writ Appeals, the amount(s), if any deposited by both the appellants, be refunded, within 15 days from the date of receipt/production of a copy of this judgment and the appellants may bring to the notice of the authorities concerned that the amount(s) have been deposited on one or other date(s).
cs To
1. The Revenue Divisional Officer, Perambalur District, Perambalur.
2. The Divisional Excise Officer, Perambalur District, Perambalur.
3. The Tahsildar, Veppanthattai Taluk, Perambalur District