Point of Law: Once the sale is set aside as illegal, the property as a consequence will have to be restored to the original owner. For the denial of right to property of appellant is contrary to law and the deprivation is unconstitutional.

JUDGMENT :

BASANT BALAJI, J.

1. The additional appellant Nos. 3 to 5 are the legal heirs of the original appellants. W.P. (C) No. 11937 of 2009 was filed by the first appellant for quashing Ext.P8 order and to direct the respondents to restore 15 cents of landed property situated in Re. Sy. No. 265/2 and the machine kept therein to the appellant, as the entire sales tax arrears in respect of the said land have been paid of. A declaration was also sought for that the Government has no authority or right to retain the land and property owned by the father of the first appellant after the receipt of the entire tax arrears due to the tax department.

2. The facts of the case in brief are as follows:

The original appellant’s father started a foundry, namely Ranee Metal Industry. After his death, the first appellant and his brother were conducting the unit. There were sales tax arrears for the period 1994-95 and 1995-96 to the tune of Rs. 1,19,915/-. Since the Sales Tax arrears were not remitted, revenue recovery proceedings were initiated against the first appellant. The property and the building together with the machine were attached. The property of the appellants was put to auction and since there were no bidders, the Government purchased the property as bought-in-land for Rs. 1/- under Section 50(2) of the Kerala Revenue Recovery Act (for short ‘the Act’). Thereafter, the appellants approached the Government expressing their willingness to clear the tax liability. The Government, as per Ext.P4 order, granted stay of the revenue recovery proceedings subject to the condition that the appellant shall pay 40% of the amount remitted before 29.9.2001 and the balance in six instalments.

3. It is the case of the appellants that the father of the first appellant had fully complied with the conditions stipulated in Ext.P4 and that the entire amounts were remitted as directed. In the year 2008, the appellants came to know that the Government purchased the property under Section 50(2) of the Act and immediately they sent representation to release the property since the entire liability was wiped off. Repeated reminders were also sent and ultimately Ext.P8 was issued on 18.2.2009 stating that the request of the father of the appellant for re-conveyance or restoration of the land was not possible, since the request for restoration is made after two years after the confirmation of the sale.

4. A counter affidavit was filed in the Writ Petition on behalf of the first respondent wherein it is stated that as per Revenue Recovery Certificate Nos. 343 and 344/98-99 dated 26.2.1999, the Additional Sales Tax officer has requested the first respondent to recover the sale tax arrears from the appellants amounting to Rs. 1,19,915/-. Notice in Form No. 1 and 10 under Sections 7 and 34 of the Act were issued to the appellants and the same were published by affixture on 26.3.199 by the Village Officer, Cheruvannur. Even after the service of notice, since the appellants did not turn up to clear up the arrears, the landed property of the appellants measuring 10 cents comprised in Re. Sy. No. 265/2 of Cheruvannur Village in Kozhikode Taluk was attached on 3.7.1999 and after complying all procedures, the property was put for sale on 8.11.2000, 28.12.2000 and 8.2.2001. Since there were no bidders for the auction, the property was purchased on behalf of the Government for an amount of Rs. 1/- on 8.2.2001. The sale was confirmed by the Revenue Divisional Officer as per order dated 8.6.2001. Later on 27.8.2001, the Revenue Minister allowed instalment facilities. Moreover there were other demands towards sale tax arrears pending against the appellant as per requisition issued by Commercial Tax Officer, III Circle, Kozhikode. It was also contended that the request for re-conveyance of the land bought-in by the Government was received after a period of 9 years after the confirmation of sale and as per the existing Government Orders, re-conveyance of bought-in-land to the