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2022 DIGILAW 978 (KER)

Fouzia, W/O. O V Ahamed v. A. M. Vrindha

2022-11-15

BASANT BALAJI, S.V.BHATTI

body2022
JUDGMENT : Basant Balaji, J. The Additional 2nd respondent in O.P. No.7196 of 1993 is the appellant. The first respondent was the petitioner, and the 2nd respondent was the 1st respondent before the learned Single Judge. (The parties are referred to as the defaulter and the auction purchaser, in this appeal) 2. The brief facts, which are essential for the disposal of this Writ Appeal are as follows:- Five acres of land comprised in survey No.1/1A of Tolambra Amsom, belonged to the defaulter. It was attached on 17.12.1986 pursuant to the recovery proceedings initiated for realization of sales tax arrears. Out of the 5 acres, 3 acres of land was sold on public auction on 29.6.1987 for a sum of Rs.25,818.39/-. The auction purchaser/appellant bid in auction and purchased the property. On the date of sale itself 15% of the bid amount was remitted by her. In the meanwhile, the defaulter filed appeal before the Sales Tax Appellate Tribunal, Kozhikode challenging the common order of the appellate Assistant Commissioner along with the stay petition. Thereafter, she approached this court and filed O.P. No.5628 of 1987 for speedy disposal of the appeal and this court by judgment dated 13.7.1987 directed to dispose of the appeals as expeditiously as possible and the confirmation of the sale was stayed till the disposal of the appeals and the stay petitions. Therefore, the revenue did not accept the balance 85% from the auction purchaser. The appeal filed by the defaulter for the year 1982-83 was dismissed and another appeal filed challenging the assessment for the year 1983-84 was allowed and the matter was remanded for fresh disposal. Due to the change of circumstances, arrears got reduced to Rs.11,675.65/-plus interest. So revised revenue certificate was resubmitted to the District Collector on 28.12.1988. 3. The defaulter filed revision before the Board of Revenue challenging the sale conducted on 29.6.1987 under Section 83 of the Kerala Revenue Recovery Act, 1968 (for short ‘the RR Act’). The Board of Revenue, by Ext.P1 order dated 30.5.1992 finding irregularity in the sale set aside the sale subject to the defaulter remitting the amounts due to the Government, which may be fixed by the Sub Collector within 3 months from the date of order. The Board of Revenue, by Ext.P1 order dated 30.5.1992 finding irregularity in the sale set aside the sale subject to the defaulter remitting the amounts due to the Government, which may be fixed by the Sub Collector within 3 months from the date of order. The sub collector, thereafter, by Ext.P2 order dated 28.8.1992 quantified the amount as Rs.46,419/-and directed the defaulter to pay the amount within 3 months from the date of getting the order failing which it will presumed that the defaulter was not willing to remit the amount found due to the Government. While calculating the amount due, the Sub Collector had quantified interest for the period from 5.2.1990 to 31.8.1992 at the rate of 18% per annum. On 7.11.1992 the defaulter sent a representation to the District Collector informing that as per the RR Act, only 6% interest can be demanded and requested for re-computation. The defaulter thereafter approached this court by filing O.P. No.15670/1992 for a quashing the order dated 28.8.1992 whereby the sub collector quantified the amount with interest at the rate of 18%. This court by judgment dated 30.11.1992 disposed of the O.P. directing the defaulter to deposit interest at the rate of 6% per annum and if deposit is made, Ext.P3 petition was directed to be disposed of within one month. The defaulter did not remit interest at the rate of 6% as ordered by this court in O.P. No.15670 of 1992. 4. The 2nd respondent thereafter, issued proceedings on 16.3.1993 on the representation filed by the default on 7.11.1992 and held that the defaulter has to deposit the amount with 12% interest per annum from the date of deposit of the bid amount by the auction purchaser till the payment, within a period of 7 days of the date of receipt of the order. On 21.3.1993, the defaulter again sent another representation to the respondents informing that as per the judgment in O.P. No.15670 of 1992, it was declared that only 6% interest can be recovered from her. But the Sub-Collector, by notice dated 12.4.1993, directed the defaulter to deposit the bid amount with interest at the rate of 12% interest on or before 20.4.1993 together with cost of stamp paper. The auction purchaser challenged the proceedings of the Sub collector dated 16.3.1993 (Ext.P5) and notice dated 12.4.1993 (Ext.P7) before this court. But the Sub-Collector, by notice dated 12.4.1993, directed the defaulter to deposit the bid amount with interest at the rate of 12% interest on or before 20.4.1993 together with cost of stamp paper. The auction purchaser challenged the proceedings of the Sub collector dated 16.3.1993 (Ext.P5) and notice dated 12.4.1993 (Ext.P7) before this court. The prayers sought for in O.P. No.7196 of 1993 are as follows: (i) issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Exhibits P5 and P7 and quash the same. (ii) declare that the respondent has no authority to demand interest at the rate of 12% as made in Exhibits P5 and P7 (iii) issue a writ or mandamus or any other appropriate writ, order or direction, directing the respondent to permit the petitioner to remit the amount demanded as per Exhibits P5 and P7 with interest at the rate of 6%. (iv) stay the operation and further proceedings pursuant to Exhibits P5 and P7, pending disposal of this Original Petition. (v) such other appropriate writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of the case, and (vi) award costs. 5. The Original Petition was filed on 1.6.1993 and was disposed of on 6.6.1997 whereby the learned Single Judge held that challenge to Ext.P5 directing the payment of interest at the rate of 12% is not illegal and the contention levelled against Ext.P5 and P7 were negatived. But at the time of hearing, the defaulter produced an order of the 2nd respondent dated 3.5.1993 confirming the sale in favour of additional 2nd respondent since the defaulter did not comply with the direction to deposit interest at the rate of 6% as per the judgment in O.P. No.15670 of 1992. 6. At the time of admission of O.P. No.7196 of 1993 an order was passed in C.M.P. No.12505/1993 granting interim stay of all proceedings on condition of the petitioner depositing a sum of Rs.17,500/-within a period of 15 days from the date of order. 7. 6. At the time of admission of O.P. No.7196 of 1993 an order was passed in C.M.P. No.12505/1993 granting interim stay of all proceedings on condition of the petitioner depositing a sum of Rs.17,500/-within a period of 15 days from the date of order. 7. The learned Single Judge held that though the order is seen passed on 3.5.1993, the order was received by the defaulter after the filing of the Original petition and since the main question was pending before this court, the subsequent proceedings passed by the Sub Collector is only consequential and the confirmation of sale ordered by the Sub Collector on 3.5.1993 was set aside. The Writ Appeal is filed challenging the judgment of the learned Single Judge setting aside the confirmation of sale on 3.5.1993. 8. Heard Shri O V Maniprasad for the appellant, senior counsel Shri S Krishnanunni, assisted by Mr.Thareeq Anwar, for the first respondent and Government pleader for the second respondent. 9. The counsel for the appellant argues that the order of confirmation of sale on 3.5.1993 was never challenged in O.P. No.7196 of 1993 nor it was produced till the date of final hearing. The only challenge in the O.P. was regarding the rate of interest quantified by the Sub Collector as 12% to be deposited and the consequential notice directing the payment of interest with the bid amount at 12% on or before 20.4.1993 and in such a situation the learned Single Judge without a challenge to the order confirming the sale dated 3.5.1993 ought not have set aside. The counsel further argues that the learned Single Judge has stated in the judgment itself that the order dated 3.5.1993 was received by the defaulter on 4.6.1993. The original petition was filed on 1.6.1993 and finally heard and disposed of on 6.7.1996 and the defaulter purposefully did not produce the order before the court nor the original petition was amended for including a prayer for quashing it. Moreover, the defaulter did not make the auction purchaser a party to the O.P. and on coming to know of the Original Petition the auction purchaser got herself impleaded as per order dated 21.10.1994 in CMP No.24191 of 1994. In none of the proceedings before the statutory authorities the defaulter was made a party and she was kept in dark in all the orders which the defaulter obtained from the authorities. 10. In none of the proceedings before the statutory authorities the defaulter was made a party and she was kept in dark in all the orders which the defaulter obtained from the authorities. 10. The counsel further submits that the learned Single Judge had in exercise of his jurisdiction under Article 226 of the Constitution of India quashed the confirmation of sale dated 3.5.1993 in the absence of any challenge. To wit it is argued that the jurisdiction is exercised in excess and the appellant suffered prejudice. 11. The senior counsel for the first respondent argues that order dated 3.5.1993 was received by the defaulter only after filing of the Original Petition and at the time of hearing, the order was produced through a memo. Acting on the memo and finding that the order has been received by the defaulter during the pendency of the original petition and being a consequential order has quashed it rightly. He further submits that as per interim order in CMP No.12505 of 1993 the defaulter has issued a cheque for Rs.17,500/-within the time granted by this court and it was produced before the auction purchaser on 18.6.1993 thereby, the condition imposed by the learned Single Judge was fully complied. It is taking note of the compliance of order in CMP No.12505 of 1993 that the learned Single Judge quashed the order of the Sub Collector dated 3.5.1993 and hence, no interference is warranted to the judgment of learned Single Judge. 12. This O.P. has a chequered history. For sales tax arrears for the years 1982-83 and 1983-84 assessments were finalized and the defaulter was directed to pay a sum of Rs.25,818.39. Challenge against the assessment order before the appellate Assistant Commissioner Kannur was also dismissed in the year 1986. After the dismissal of the appeal, the District Collector initiated revenue recovery proceedings for the recovery of an amount of Rs.11,675.65/-under the Act from the defaulter. Demand under Section 7 of Act was served on the defaulter. On receipt of the notice the defaulter approached the Government on 23.6.1986 and obtained order dated 23.6.1986 whereby the defaulter was permitted to remit the arrears in six monthly instalments with effect from 30.6.1986. But the defaulter did not remit the amount as directed by the Government. Demand under Section 7 of Act was served on the defaulter. On receipt of the notice the defaulter approached the Government on 23.6.1986 and obtained order dated 23.6.1986 whereby the defaulter was permitted to remit the arrears in six monthly instalments with effect from 30.6.1986. But the defaulter did not remit the amount as directed by the Government. On 30.6.1986 a notice prior to attachment under section 34 was issued and it was served by affixture at the residence of the defaulter. The defaulter again approached the government on 3.10.86 and the Government stayed the revenue recovery proceedings for a period of two months from 3.10.1986 to enable the defaulter to remit the amount as ordered on 23.6.1986. The defaulter did not remit the said amount also. 13. On 13.3.1987 the Government permitted the default to remit the arrears in six instalments again with effect from 25.3.1987. This opportunity was not availed by the defaulter. Sale notice was issued for sale of property fixing the revenue sale on 19.5.1987 but the sale could not take place for procedural reasons and a fresh notice of revenue sale was fixed on 29.6.1987. The sale was conducted on 29.6.1987 for 3 acres of barren land comprised in Re.Sy.1/1A of Tholambra amsom and the auction purchaser purchased the same for Rs.28,550/-and on the very same day 15% of the bid amount amounting to Rs.43,82.50/- was remitted by her. 14. As per the Section 54 of the Act, on the expiration of thirty days from the date of sale, if no application to set aside the sale is made under Section 52 or Section 53 or if any such application has been made and rejected, the District Collector shall make an order confirming the same. After the sale was conducted on 29.6.1987 the defaulter filed appeals as T.A.(VAT) Nos.134 of 1987 and 135 of 1987 before the Sales Tax Appellate Tribunal Kozhikode challenging the common order of the Appellate Assistant Commissioner along with the stay petition and immediately approached this court within two days of filing of the appeals for a direction to dispose of the appeals pending before the Tribunal. This court, by judgment in O.P. No.5628 of 1987 directed the State Tax Appellate Tribunal, Kozhikode to dispose of the appeal along with stay petition expeditiously and till such a time the confirmation of sale was directed to be kept in abeyance. This court, by judgment in O.P. No.5628 of 1987 directed the State Tax Appellate Tribunal, Kozhikode to dispose of the appeal along with stay petition expeditiously and till such a time the confirmation of sale was directed to be kept in abeyance. On 12.10.1987 the Sales Tax Appellate Tribunal Kozhikode dismissed the appeal TA (VAT) No.134 of 1987 and T.A.(VAT) No.135 of 1987 were allowed and by remanding for fresh disposal. Thus the arrears reduced to Rs.1167.65 plus interest. Therefore Revenue Recovery Certificate for the year 198384 was resubmitted to the District Collector. The District Collector directed the defaulter to remit the balance amount together with amount equal to bid amount as provided under Section 52 of the RR Act. The defaulter requested time for remitting the amount till 3.6.1989. On 24.6.1989 the Government again granted instalment facility to the defaulter to pay the defaulted instalments in 6 instalments and directed to pay Rs.5,000/-before 15.7.1989. The defaulter did not deposit the first instalment of Rs.5,000/-nor remitted any of the instalments. It is at this juncture, the auction purchaser was directed to remit balance 85% of the bid amount on 5.2.1990 and as per challan No.109, the auction purchaser deposited the entire amount. 15. On 29.5.1990, since no payments were effected by the defaulter as ordered by the Government, the 2nd respondent confirmed the sale in favour of the auction purchaser, as there was no objection regarding the sale. No petitions were filed under Sections 52 or 53 of the Act. 16. The auction purchaser on 12.12.1990 challenged the confirmation order of the respondent dated 29.5.1990 before the Board of Revenue under Section 83 of the Act. The auction purchaser was not made a party in the revision. Though a stay petition was filed to stay the revenue recovery proceedings the Board of Revenue did not grant any stay. Therefore, O.P. No.2226 of 1991 was filed to quash the proceedings dated 29.5.1990 of the respondent confirming the sale and the order of the Board of Revenue dated 12.12.1990 declining stay. By judgment dated 24.7.1991, this court directed the Board of Revenue to dispose of the revision in accordance with law as early as possible. But no stay of further proceedings was granted by this court. On 29.8.1991 a sale certificate was issued to the auction purchaser by the respondent. By judgment dated 24.7.1991, this court directed the Board of Revenue to dispose of the revision in accordance with law as early as possible. But no stay of further proceedings was granted by this court. On 29.8.1991 a sale certificate was issued to the auction purchaser by the respondent. The board of Revenue, on 30.5.1992 set aside the confirmation of sale subject to the defaulter remitting the amount found due to the Government within 3 months from 30.5.1992. The Sub Collector quantified the amount as Rs.46,419/-with 18% interest per annum. A petition was filed by the defaulter stating that she is liable to pay interest only at the rate of 6% and not 18%. The defaulter filed O.P. No.15670 of 1992 challenging the proceedings of the Sub Collector directing remittance of Rs.46,419/-with interest at the rate of 18%. The auction purchaser was not made a party respondent in the original petition. This Court disposed of the petition on condition that the defaulter remits interest at the rate of 6% per annum within a period of one month and if such deposit is made, it was directed the Sub Collector to dispose of the representation. The Sub Collector, thereafter, held that interest has to be remitted by the defaulter at the rate of 12% with the bid amount and the defaulter was directed to remit the amount, but since no amounts were deposited, even the bid amount, the Sub Collector by proceedings dated 3.5.1993 again confirmed the sale. 17. The Writ petition was filed challenging the order of the Sub collector directing payment of interest at the rate of 12% per annum and the consequential notice for payment of it. 18. Section 83 of the RR Act is extracted below. “Power of revision of Commissioner of Land Revenue and Government. (1) The [Commissioner of Land Revenue] may, either of its own motion or on an application by any person interested, call for any proceeding which has been taken by the Collector or the authorised officer under this Act and may make such inquiry or cause such inquiry be made and, subject to the provisions of this Act, may pass such orders as it thinks fit: Provided that no order shall be passed under this subsection without previous notice to the party who may be affected by such order. (2) The Government may, either suo motu or on an application by any person interested, call for the record of any proceeding taken by the Commissioner of Land Revenue] under sub-section (1) and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders as they think fit. Provided that no order shall be passed under this subsection without previous notice to the party who may be affected by such order. 83. (3) An application for revision under sub-section (1) or sub-section (2) shall be made within ninety days from the date on which the order in question was communicated to the applicant: Provided that the '[Commissioner of Land Revenue] or the Government, as the case may be, may, if it or they is or are satisfied that the applicant was prevented by sufficient cause from making the application within that period, admit an application made ate the expiry of that period.” 19. A learned Single Judge of the this court in Abdul Salam v. Tahsildar, Nilambur and others (2020 KHC 634) has held that as follows: “S.83 confers the Commissioner of Land Revenue with the power to call for any proceeding which has been taken by the Collector or the authorised officer under the Act and to make such enquiry or cause such enquiry to be made and, subject to the provisions of the Act, to pass such orders as he thinks fit. S.83(2) empowers the Government to call for the record of any proceeding taken by the Commissioner for Land Revenue under Sub-section (1) of S.83 and to make such enquiry or cause such enquiry to be made and to pass such orders as the Government deems fit. The provisos to S.83(1) and S.83(2) denudes the power of the Commissioner for Land Revenue and the Government to pass an order without previous notice to the party who may be affected by such order.” 20. It can be seen that the Board of Revenue, while considering the revision under Section 83 of the Act, did not comply with the first proviso which prescribes that no order shall be passed under this sub-section without previous notice to the party who may be affected by such order. The Board of Revenue had miserably failed to comply with Section 83 of the Act. The Board of Revenue had miserably failed to comply with Section 83 of the Act. The revisional order passed by the Board of Revenue was behind the auction purchaser. When a statute prescribes that a particular thing has to be done in a particular way, the authorities has to fully comply with the statutory directions. See the decision reported in Chandra Kishore Jha v. Mahavir Prasad, [ (1999) 8 SCC 266 ] and if the same is not done, the order passed by the authorities will not stand in the eyes of law. 21. In Bharat Amratlal Kothari and another v. Dosukhan Samadkhan Sindhi and others (2010 KHC 6008, the Apex court, in paragraph No.14 held as follows: “The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Art.226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished. Though the provisions of the Code are not made applicable to the proceedings under Art.226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed by the petitioner. Though the court has very vide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner. In Krishna Priya vs. University of Lucknow 1984 (1) SCC 307 ], overlooking the rule relating to grant of admission to Postgraduate course in medical college, the High Court in the exercise of powers under Art.226 of the Constitution directed the Medical Council to grant provisional admission to the petitioner. In Krishna Priya vs. University of Lucknow 1984 (1) SCC 307 ], overlooking the rule relating to grant of admission to Postgraduate course in medical college, the High Court in the exercise of powers under Art.226 of the Constitution directed the Medical Council to grant provisional admission to the petitioner. This Court set aside the order passed by the High Court observing that "in his own petition in the High Court, the respondent has merely prayed for a writ directing the State or the College to consider his case for admission yet the High Court went a step further and straightway issued a writ of mandamus directing the College to admit him to M.S. course and thus granted relief to the respondent which he himself never prayed for and could not have been prayed for". Again, in Om Prakash vs. Ram Kumar 1991 (1) SCC 441 ], this Court observed, "A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute". Though a High Court has power to mould reliefs to meet the requirements of each case, that does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the court.” 22. The honourable Apex Court in Ghaziabad Development Authority v. Ugrasen (Dead) by LRs and others [(2010) 11 Supreme Court Cases 557], held as follows: 30. In Trojan & Co. v. Nagappa Chettiar this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under: (AIR p. 240, para 22) "22.... It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case." 31. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case." 31. A similar view has been reiterated by this Court in Krishna Priya Ganguly v. University of Lucknow and Om Prakash v. Ram Kumar observing that a party cannot be granted a relief which is not claimed. 32. Dealing with the same issue, this Court in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi held: (SCC p. 246, para 30) "30... Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner." 33. In Fertilizer Corpn. of India Ltd. v. Sarat Chandra Rath this Court held that "the High Court ought not to have granted reliefs to the respondents which they had not even prayed for". 34. In view of the above, law on the issue can be summarised that the court cannot grant a relief which has not been specifically prayed by the parties. The instant case requires to be examined in the light of the aforesaid certain legal prepositions.” 23. As seen from the records the Original Petition was filed on 1.6.1993. The order dated 3.5.1993 confirming the sale was received by the defaulter on 4.6.1993. The original petition was disposed on 6.6.1997. The auction purchaser deliberately did not produce the order dated 3.5.1993 before this court after 4.6.1993 till 6.6.1997 nor the auction purchaser was made a party. In fact on coming to know of the original petition, the auction purchaser got herself impleaded in the original Petition to sustain the confirmation of sale. The learned Single Judge at the time of hearing on 6.6.1997 without a challenge of the same, quashed the confirmation of sale. 24. Rule 155 of the Kerala High Court Rules reads as follows: 155. New ground or relief not to be raised.--No ground shall be relied upon and no relief sought at the hearing except the grounds taken and reliefs sought in the Original Petition and the accompanying affidavit: Provided that the Court may, at the hearing allow the said petition and affidavit to be amended upon such terms as to costs or otherwise as the Court thinks fit. 25. 25. It is an admitted fact that the order dated 3.5.1993 which was quashed by this court was never challenged in the original petition. It was only produced through a memo on the date of final hearing. The Original Petition was filed challenging the order of the Sub Collector directing payment of interest at the rate of 12% on the bid amount as well as the notice directing payment of the amount. The proceedings by which the sale was confirmed on 3.5.1993 was never challenged. The learned Single Judge, by the judgment, has held that the challenge to the proceedings of the Sub Collector fixing interest at the rate of 12% per annum is in order. Therefore, there was nothing left to be decided. The learned Single Judge acting on the memo without any challenge to the order dated 3.5.1993 set aside the same. 26. The learned Single Judge set aside the sale on the submission of the counsel for the petitioner that the order in C.M.P. No.12205 of 1003 was fully complied within the time limit stipulated in the order. It is axiomatic that when the final order is passed all the interim orders passed will merge with the final order. In the case on hand, when the final order is one rejecting the challenge made in the Original Petition, the compliance of the interim order is of no significance. At best the payment is arrears post facto circumstance and will not constitute a reason to set aside the sale. The ground for setting aside a sale are made out both in facts and law. In the absence of a successful challenge to the main prayer, granting any other prayer is incorrect. 27. On going through the judgment of the learned Single Judge, we are of the considered opinion that in the absence of a challenge to the order of confirmation of sale dated 3.5.1993, in favour of respondent setting aside the sale is impermissible. Rule 155 of the Kerala High Court Rules mandates that no ground shall be relied upon and no reliefs sought at the time of hearing, except the grounds taken and reliefs sought in the Original Petition and accompanying affidavit be considered. The defaulter has not raised any ground nor relief challenging the confirmation of sale by the Sub Collector on 3.5.1993. The defaulter has not raised any ground nor relief challenging the confirmation of sale by the Sub Collector on 3.5.1993. Hence, we are of the view that the judgment of the learned Single Judge warrants interference and has to be set aside accordingly, we do so. In the result, this Writ Appeal is allowed, the impugned judgment reversed to the extent of setting aside the confirmation of sale by the Sub Collector on 3.5.1993.