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High Court Of Kerala
THE HONOURABLE MR. JUSTICE P.R. RAMACHANDRA MENON
Ayisha Teacher - Appellant
Versus
The District Collector - Respondents
WP(C).No. 8877 of 2009(D)
Decided On : 30 July 2009
Kerala Revenue Recovery Act 1968 - Sections. 50( 2) and 71 - Power of Government to declare the Act applicable to any institution - Bidding on behalf of Government - When warranted - Whether power under S.50(2) to appropriate "bought in land", if can be invoked only when it is to recover arrears of public revenue due on land ? Whether by issuance of a notification under S.71, amount due to such an institution if automatically get converted as "public revenue due on land" ? Held, When the respondents resorted to the steps under the Kerala Revenue Recovery Act, based on the requisition issued by the Assistant Commissioner of Customs, Kozhikode, presumably on the basis of the instructions given by the 'Mumbai Customs'; since no bidders had turned up in the auction scheduled, the property was subsequently taken over by the Government. There is absolutely no case for the Government that the deceased husband of the petitioner was a 'defaulter' to the Government/Revenue or that any amount was due to the Government from him. This being the position, because of the requisition submitted by the Customs authorities and since no bidders had turned up for the auction, the property of the deceased husband of the petitioner has now come to be vested with the Government of Kerala, to whom the former did not owe any amount. To put it further clear, by virtue of the exercise pursued, invoking the power under S.50(2), there is an "unlawful enrichment" by the Government of Kerala and the due amount to the Customs stands yet to be satisfied - The power under S.50(2) to appropriate the 'bought in land' can be invoked only when it is to recover the arrears of public revenue due on the land and the Government will not be justified to invoke the said power under any other circumstances. To put it more clear, the Kerala Revenue Recovery Act confers power on the Government to notify different institutions, to which the Kerala Revenue Recovery Act could be made applicable, as provided under S.71 of the Act. Once an institution is notified under S.71 of the Act, the dues to the said institution can be sought to be recovered invoking the machinery under the Kerala Revenue Recovery Act as in the case of arrears of public revenue due on land - In other words, just because of the notification under S.71, the amount due to such institution will not automatically get converted as 'public revenue due on land' - Taking over of the property by the Government, is declared as wrong and illegal and sale has to be conducted afresh with vide publicity, in accordance with law, for realization of the dues, to be satisfied to the 'Mumbai Customs' Department and clear that, this will not preclude the petitioner from satisfying the liability to the Mumbai Customs Authorities in the meanwhile and to save the property in question, which otherwise (but for the wrong exercise pursued by the Government) would have devolved upon the petitioner and the children, as the legal heirs of the deceased - The Writ Petition is allowed
Whether the property subjected to Revenue sale, pursuant to the requisition made by an Institution notified under Section 71 of the Kerala Revenue Recovery Act, can be taken over and appropriated by the Government as 'bought in land', invoking the power and procedure under Section 50 (2) of the said Act is the issue involved herein.
2. The petitioner is challenging the action on the part of the Government, whereby the property of her deceased husband, which devolved upon her and the three children, on his demise in 1999, was taken over by the Government as 'bought in land', when there was no bidder in the public auction conducted pursuant to the requisition made by the 'Mumbai Customs' for realization of the amounts due from the deceased to the said Department.
3. The petitioner is the widow of late Alliparambil Hamsa @ Babu, against whom some proceedings were taken by the Mumbai Customs in the year 1984, whereby the department imposed a fine of Rs. 2 lakhs and a requisition was made to the revenue authorities in Kerala for realization of the said amount. Invoking the machinery under the Kerala Revenue Recovery Act, the revenue authorities proceeded against the properties of the deceased defaulter and since there were no bidders, the sale was adjourned as prescribed and subsequently, the property was bid by the Government as 'bought in land' under Section 50 (2) of the 'Act'.
4. The learned senior Government Pleader submits that, the deceased husband of the petitioner was the absolute owner of the property in question, by virtue of Ext.P1 Partition Deed dated 3.6.1993, where his share was earmarked and alloted separately. Pursuant to the requisition made by the Mumbai Customs, it was the said property that was taken over by the Government as 'bought in land', invoking the power under Section 50 (2) of the Kerala Revenue Recovery Act, when no bidders turned up in the revenue sale. But the fact remains that, the above property was never conveyed or no monetary equivalent was ever paid to the Mumbai Customs, at whose requisition, the revenue sale was conducted by the authorities in Kerala. To put it more clear, the deceased husband of the petitioner was never indebted to the State/Revenue in any manner and the only liability was towards the Mumbai Customs. In the instant case, pursuant to the requisition made by the Mumbai Customs, since no bidders had turned up, the property happened to be appropriated by the Government of Kerala as 'bought in land', invoking the provision under Section 50 (2), which shows that there is an unlawful enrichment by the State, at the cost of the petitioner's husband and also the Mumbai Customs Department.
5. The learned counsel for the petitioner submits that, the petitioner is ready and willing to satisfy the entire liability to the Mumbai Customs and admittedly the liability of the deceased husband still stands and the Revenue Authorities in Kerala have not paid any amount to the Mumbai Customs, at whose instance, the auction was conducted. The learned standing counsel appearing for the Mumbai Customs, on instructions submits that, the department does not have any objection at all in re conveying the property to the petitioner, on condition that, she satisfies the entire liability to the Customs Department, particularly since the amount sought to be recovered is a 'fine'.
6. The crucial question to be considered is, whether the Government could have appropriated the land in question as 'bought in land' invoking the power under Section 50 (2) of the Kerala Revenue Recovery Act. Section 50 of the Kerala Revenue Recovery Act stipulates as follows :
50. Bidding on behalf of Government : -
(1) When an immovable property is put up for sale at the time and place specified in the notice under clause (2) of Section 49 for the recovery of arrears of public revenue due on land, if there be no bid or if the highest bid be insufficient to cover the said arrears and those subsequently accruing due u
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