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2001 DIGILAW 715 (KER)

Syed Meera Levai v. Asst. Collector

2001-12-04

M.RAMACHANDRAN

body2001
Judgment :- M. Ramachandran, J. The petitioner had been assessed for Agricultural Income tax, for the years 1984-85 to 1990-91, for a total sum of Rs. 66,996/-. Against the assessment orders, he had filed appeals as AITA Nos. 108 to 114 of 1994 before the Kerala Agricultural Income Tax Appellate Tribunal, Additional Bench, Kottayam. In the appeals interim orders had been passed staying the assessments on a condition and Ext. P2 shows that the condition prescribed had been satisfied by payment. But when the appeals were finally taken up for hearing, there were no representation on behalf of the petitioner and the appeals were consequently dismissed for default. Thereafter, proceedings for realisation of the amount assessed had been initiated without his knowledge and the petitioner's properties came to be attached and put for sale. 2. He only learnt that the revenue sale was carried out some time in March, 1999 and by Ext. P4 the petitioner was given notice that he is at liberty to move for setting aside the sale on remitting the entire amount payable within 30 days from the date of sale. The notice was dated 3.3.1999. The petitioner states that it was received on 20.3.1999. It is also averred that Ext. P5 representation had been forwarded by the petitioner objecting to the confirmation of the sale and pointing out that the sale is vitiated. In the meanwhile, the petitioner had moved the Appellate Authority for restoration of the appeals by setting aside the dismissal for default. Ext. P3 shows that the appeals were restored to file, by order dated 8.3.1999. However, before that, on 26.2.1999 auction had been conducted and the properties stood sold. By notice dated 3.1.2000 (Ext. P6), the Assistant Collector, Devikulam informed the petitioner that the sale stood confirmed. It was also pointed out that no application under S.52 or 53 of the Revenue Recovery Act had been received in the office for setting aside the sale and that is the reason for confirmation. 3. Respondents 1 and 2 have filed a counter affidavit showing the details of the action and it is submitted that Ext. P2 had not been received by the authority and it was to be -understood that the petitioner had not objected to the confirmation of the sale. The third respondent, who was the auction purchaser, had also filed a counter affidavit. P2 had not been received by the authority and it was to be -understood that the petitioner had not objected to the confirmation of the sale. The third respondent, who was the auction purchaser, had also filed a counter affidavit. He states that he had moved the authorities for getting possession of the land. There was delay in confirmation and so he had filed a claim before the Consumer Disputes Redressal Forum, Idukki demanding return of the money in deposit or confirmation of the sale in his favour. It is also seen from Ext. R3(c) that the Consumer Disputes Redressal Forum, by order dated 24.9.1999, directed that the amount in deposit made by the third respondent should be returned with interest or the property should be transferred in the name of the third respondent. The Government, obviously had taken the latter course and the confirmation order has been passed in the above said context. But no steps had been taken for giving possession. 4. S.52 of the Kerala Revenue Recovery Act prescribes the formalities for setting aside sale of immovable property, on deposit being made. A defaulter is obliged - to make deposit within the time prescribed for enabling him to get an order in his favour. S.53 of the Act refers to the procedure where a sale is to be set aside on material irregularity, mistake etc. But, as pointed out by the counsel for the petitioner, this strictly may not be relevant or applicable in this case. He, however, points out that there is material irregularity, but the law empowers the authority to set right the mistake and again put the properties for sale. That cannot be the course which could be allowed to be followed in this case. Evidently a stay order was in force and after the ex parte order when there was no such orders, the sale had been attempted to. The Act, according to me, has not taken note of the peculiar circumstances that have taken place here. But, it is found from Ext. P3 order, that the appeals were restored. Though normally a stay petition does not revive automatically on restoration, in the present appeals the stay order was so worded that on deposit, the stay will continue till the disposal of the appeals. But, it is found from Ext. P3 order, that the appeals were restored. Though normally a stay petition does not revive automatically on restoration, in the present appeals the stay order was so worded that on deposit, the stay will continue till the disposal of the appeals. Also there is a definite finding by the Tribunal that the petitioner was not issued notice of the posting date of the appeals and there was no service of notice. The earlier order was therefore totally unsupportable as passed in violation of the principles of natural justice. He should not have been put to any disadvantage because of the lapses committed by the authorities even though by that time third parties had entered the scene and attempted to establish their rights. But the stay has to be presumed as continuing at the time of confirmation order. 5. It is found that after the confirmation of the sale, the third respondent had been directed to produce stamp papers for handing over possession of the property that had been subjected to auction. But he had failed to produce any such stamp papers. It is also submitted by the parties that the petitioner is continuing in possession of the property in question. The appeals are yet to be disposed of. 6. For sale of the property, there was no adequate notice. Two items of properties have been sold, and double the amount in default has been got in deposit. It is not explained as to why both the items were sold away. The petitioner has been subjected to prejudice though it might have been unintentional. As such, in exercise of extra ordinary jurisdiction, he has to be granted reliefs. In the aforesaid circumstances, I set aside the confirmation of sale passed by the first respondent. Respondents 1 and 2 are directed to give back the amount in deposit to the third respondent, together with 10% interest as they had the benefit of utilising the money over the period of such deposit. As the petitioner is technically responsible for the debacle, I direct that the petitioner should pay a sum of Rs. 1000/- as costs to the third respondent. 7. I am told that the appeals filed by the petitioner are pending and yet to be taken and disposed of. The petitioner should see that applications are filed so that the appeals are expedited and orders passed. 1000/- as costs to the third respondent. 7. I am told that the appeals filed by the petitioner are pending and yet to be taken and disposed of. The petitioner should see that applications are filed so that the appeals are expedited and orders passed. Continuance of Revenue Recovery proceedings against the petitioner will depend upon the final out come of the said proceedings. The Original Petition is disposed of with the above direction.