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Judges : K.A.ABDUL GAFOOR
Mahadevan Pillai - Appellant
Versus
Kerala Financial Corporation - Respondent
Case No : O.P.No. 17182 of 1992
Decided On : 05/21/1997
Advocates Appeared :
P. Gopalakrishnan Nair For Petitioner V.B. Unniraj, M.V. Ibrahimkuttty & Government Pleader (T.P. Sajan) For Respondents
Publication of Sale Notice - Kerala Revenue Recovery Act - S.49, S.75 - The court found that there was no publication of the sale notice as envisaged in S.49 of the Revenue Recovery Act. The discretion vested in the 3rd respondent to publish the notice in newspapers was not exercised reasonably, leading to a lack of wide publicity and maximum price for the property. The sale was quashed as it was found to be bad due to the lack of publication of notice in terms of S.49 read with S.75(2).
Fact of the Case:
The petitioner challenged Ext. P6, a sale notice issued under the Kerala Revenue Recovery Act, claiming lack of publication of the sale notice as envisaged in S.49 of the Act. The petitioner sought an order of stay of the sale proceedings, which was granted on condition of remitting a substantial portion of the amount in default. The petitioner could not comply, and the sale was conducted. The petitioner also sought amendment of the original petition to challenge a statutory declaration of lawful succession of purchase of the property by the 3rd respondent.
Finding of the Court:
The court found that there was no publication of the sale notice as envisaged in S.49 of the Revenue Recovery Act. The discretion vested in the 3rd respondent to publish the notice in newspapers was not exercised reasonably, leading to a lack of wide publicity and maximum price for the property. The sale was quashed as it was found to be bad due to the lack of publication of notice in terms of S.49 read with S.75(2).
Issues: The main issue was the lack of publication of the sale notice as required by S.49 of the Revenue Recovery Act. The court also addressed the availability of alternative remedy, the responsibility for missing items of machinery, and the sufficiency of consideration and insufficiency in the sale price.
Ratio Decidendi: The court held that when there is flagrant violation of the statutory provision and lack of notice, it will be unjust to relegate the petitioner to alternative remedy. The discretion vested in the 3rd respondent to publish the notice in newspapers was not exercised reasonably, leading to a lack of wide publicity and maximum price for the property. The lack of publication of notice in terms of S.49 read with S.75(2) rendered the sale bad and liable to be quashed.
Final Decision: The court quashed the sale conducted pursuant to Ext. P6 and its confirmation, and ordered the properties to continue to be in the possession of the Kerala Financial Corporation. They were free to put the properties to sale in accordance with law by publishing the notice in the newspapers. The original petition was allowed to the above extent with no costs.
K.A. Abdul Gafoor, J. This original petition was filed on 28.12.1992 challenging Ext. P6 and seeking a direction ‘to give sufficient publicity before the sale is conducted". Ext. P6 is a sale notice issued under the provisions of the Kerala Revenue Recovery Act notifying the sale of the property of the petitioner. One among the main contentions of the petitioner is that "there has been no publication of the sale notice as envisaged in S.49 of the Revenue Recovery Act". The petitioner sought for an order of stay of the sale proceedings. This Court granted a stay on condition that the petitioner shall remit a substantial portion of the amount in default. The petitioner could not comply with the condition. Therefore, the sale was conducted pursuant to Ext. P6. Subsequently, the petitioner sought amendment of the original petition corporations shall engage against Ext. P10, a statutory declaration of lawful succession of purchase of immovable property by the 3rd respondent, in favour of respondents 4 and 5 who had purchased the property in auction sale.
2. he petitioner, a Small Scale Industrialist availed loan from the Kerala Financial Corporation. He submits that as there was delay in the grant of loan, the price of machinery and other accessories increased by that time. The Electricity Board,& also revised its policy to the effect that the industrial consumers shall set up their own transformers. So, the petitioner could not start the industry though he acquired machinery and put up necessary building. He submits that he could not start the industry as there was delay in sanctioning the loan. But the fact remains that the petitioner has availed loan. Therefore, the petitioner cannot dispute its repayment. As per the conditions of grant of loan, in case the petitioner defaults in due repayment, the 1 st and 2nd respondents can take over industrial unit with its properties and sell it. Accordingly the properties including landed property, the building and machinery were taken over by the 1st and 2nd respondents. It was put to sale in terms of the provisions of the Revenue Recovery Act by issuing Ext. P6 notice. It was at that time the petitioner approached this Court challenging the sale proceedings stating that there was no notice in terms of sanction 49 of the Revenue Recovery Act. The petitioner has several other contentions but except this none deserve consideration. S.49 of the Kerala Revenue Recovery Act, 1968 contains the procedure to be adopted in the matter of sale of immovable properties. It is provided that sale shall be by public auction to the highest bidder and that the Collector or the authorised officer - in this case the 3rd respondent - shall issue a notice. Ext. P6 is that notice. It is also provided in sub-s.(2) that "the notice shall be duly served and published at least thirty days before the date of sale". S.75 of the Act provides the mode of publication of notices etc. Sub-s.(1) provides that in the case of sale of immovable property it shall be by affixture of a copy of the notice. Sub-s.(2) provides as follows:
"The Collector or the authorised officer may, in this 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".
3. he subject matter of the sale in this case is 74.633 cents of land in Sy. No. 178714- 2 of Kayamkulam Village and the buildings therein. Admittedly, it. is an industrial unit, it is stated in the statement filed by the third respondent that 'the sale notice has already been published in the property, on the defaulter, Taluk Office, Village Office and Panchayat Office in English and Malayalam as per the Rules in the prescribed forms". Admittedly, no publication has been made as enjoined in sub-s.(2) of S.75 by publishing the notice in two newspapers. Of course, such publication shall be at the discretion of the 3rd respondent. A discretion vested in a public of
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