The petitioner was the owner of 80 cents of property comprised in Sy. No.41/8 of Payyavoor Village, which he had purchased from one Sri. Augustin through Ext.P4 sale deed. The 3rd respondent was the original owner of the above said property, which he had sold to one Mr. Chengalai Francis by virtue of a registered agreement, copy of which is marked as Ext.P2. The said Sri. Francis had sold property to one Smt. Eliamma by virtue of another agreement, copy of which is marked as Ext.P3. It is contended that a sale deed was also executed in favour of Smt. Eliamma as per document No.1332/92 of SRO, Sreekandapuram. The property in question was sold in public auction under revenue recovery steps initiated against respondents 3 & 4. The 5th respondent had purchased the property in public auction in the sale conducted on 10-08-1999. According to the petitioner he had filed Ext.P5 objection before the 2nd respondent as early as on 21-01-1999, requesting to set aside the sale and also requesting to proceed against the defaulter (respondents 3 & 4). Thereafter the petitioner had approached this court in a writ petition seeking to quash the sale in question. In Ext.P6 judgment this court observed that the assignee of the defaulter, Smt. Eliamma had filed a suit as O.S. No.121/1992 before the Sub court, Payyannur which was eventually dismissed holding that the transfer of the property in question by the 3rd respondent herein was effected after he became a defaulter and hence the transfer is hit by Section 44 (2) of Kerala Revenue Recovery Act. Therefore it is observed that, the petitioner is the 4th owner of the property. But his predecessor in interest has no title. Therefore the petitioner cannot have a better claim than what his predecessor in interest had at the time of transfer. However, this court observed that, since the property was already sold in public auction, if the petitioner has to establish his right and title, the proper remedy is to approach the civil court. Question as to whether the property was purchased by the petitioner bonafidely without notice of the revenue recovery steps and as to whether he had obtained valid title etc; are matters which are required to be decided on the basis of evidence both oral and documentary. Hence the petitioner was given liberty to approach the civil court. In Ext.P6 judgment this court directed the revenue recovery steps to be kept in abeyance for a period of 2 months, within which time, it is was left open to the petitioner to seek interim relief if any. It is stated that, consequent to Ext.P6 judgment the petitioner had filed a suit as O.S. No.192/2006 before the Munsiff court, Thaliparamba. It is further stated that, the Sub Court, Payyannur had issued Ext.P7 interim order in the suit directing to maintain status-quo. Grievance of the petitioner is that during pendency of the above said suit the sale in question with respect to the property was confirmed by the competent authority as per Ext.P8, even without considering Ext.P5 objection. It is contended that the sale as well as its confirmation was done without issuing any notice to the petitioner and no opportunity of hearing was afforded to the petitioner before confirmation of the sale as contemplated under Section 54. The petitioner contended that eventhough, Section 54 does not specifically contemplate an opportunity of hearing to the land owner, such an opportunity is mandatory in compliance of principles of natural justice. Learned counsel for the petitioner had pointed a decision of this court in Mandoor Ali. V. Revenue Divisional Officer and others (2007 KHC 3757) in support of the above proposition. Inter alia the petitioner had raised a further contention that the property having an extent of 2.50 Acres comprised in re-sy No.5 of Eruvassy Village was bid in auction by the Government for a nominal amount of Rs.1/- and the steps against the property belonging to the petitioner was proceeded without appreciating the said fact. It is contended that the petitioner is liable to be proceeded against only if the amount in default is not recovered through the property purchased by the Government in auction.
2. In the counter affidavit filed by the 2nd respondent it is contended that the transfer of the property by the 3rd respondent was effected after the public revenue due on the land had fallen in arrears. It is stated that notice under Section 44 was issued to the predecessor in interest of the petitioner Smt. Eliamma, who in turn had filed a civil suit and obtained an interim stay on 16-08-1993. The said suit was dismissed on 06-07-1995 and further steps was then proceeded. While so, one Sri. Vatakara Augustine had filed a petition before the Government claiming right over the property. Eventhough the Government had stayed further action, the claim was finally rejected through order dated 05-11-1996. Thereafter the property was put to auction on different dates and finally on 10-08-1999. The sale was made in favour of the 5th respondent. It is stated that against the sale the petitioner had approached this court in a writ petition, which culminated in Ext.P6 judgment. The stay granted by this court in Ext.P6 judgment expired on 13-05-2005. Thereafter steps for confirming the sale was initiated and the sale was confirmed through Ext.P8 proceedings, issued on 21-01-2006. It is further stated that, on remittance of the sale price by the 6th respondent the sale certificate was issued, as per proceedings dated 10-11-2006 by the Revenue Divisional officer, Thalassery. It is further mentioned that possession of the property was handed over on 30-01-2007 since there was no orders restraining further actions.
3. While appreciating the rival contentions based on the factual scenario, it is evident that the sale was conducted as early as on 10-08-1999. Eventhough the petitioners claims that he had submitted Ext.P5 application on 21-08-1999, nothing is produced to show that such an application was forwarded to the 2nd respondent. However it is to be noticed that the application for setting aside the revenue recovery sale has to be submitted before the competent authority by depositing the amount in arrears or under Section 53 of the Act on the ground of any material irregularity or mistake etc. There is no evidence to show that the petitioner had approached the competent authority, who is empowered to confirm the sale, with any such application, within the time stipulated under the statute at any point of time before confirmation of the sale. It is evident from Ext.P6 that copy of Ext.P5 request was produced even in the earlier writ petition, which was seen marked as Ext.P3 therein. But the petitioner has not pursued any relief based on Ext.P5 in the earlier writ petition; and that no contention was seen agitated based on non-consideration of the application to set aside the sale. The observations contained in Ext.P6 judgment, based on the findings contained in the judgment of the suit filed by the predecessor in interest that the sale by the defaulter is hit by Section 44 (2) of the Revenue Recovery Act, remains as such. However, in view of the liberty granted to the petitioner by this court the petitioner had resorted to the remedy of civil suit seeking to set aside the sale. Therefore this court is of the considered opinion that contention of the petitioner based on non-consideration of Ext.P5 and the challenges raised against Ext.P8 cannot be adjudicated in this writ petition. The petitioner will be at liberty to pursue such remedies in the civil suit, as already upheld by this court in Ext.P6 judgment.
4. Further contention raised by the petitioner is based on the auction of 2.5 Acres of land belonging to the petitioner. It is contended that the Government had bid in auction the property and the further steps were initiated against the property of the petitioner without appropriating the said land. According to the petitioner the above aspect will create an irregularity in the revenue recovery proceedings, which will vitiate the action, including the sale of the petitioner's property. This court is of the considered opinion that such a contention cannot be countenanced, because the petitioner not being the defaulter has no locus standi to agitate any issue based on the irregularity of the sale of the defaulter's property. At the best, the petitioner is entitled to challenge only the steps initiated against the property which he had allegedly purchased by virtue of Ext.P4. Hence the challenges raised based on alleged irregularity with respect to sale of 2.5 Acres of land belonging to the defaulter, cannot be entertained.
5. Under the above mentioned circumstances none of the relief sought for in this writ petition can be granted. However the writ petition is dismissed without prejudice to the rights of the petitioner to pursue his remedies in the civil suit filed against the sale.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge