JOSEPH Vs. TAHSILDAR, S. WYNAD TALUK

JUDGEMENT

(1.) THE facts in short are these:Immovable property,6.85 acres in extent,comprised in R.S.Nos.629/1 A1 and 628 of Thariode Village,which belonged to the late N.D.Thommen,was attached for recovery of abkari arrears due from him,on 21st March 1974 and was sold in public auction on 14th July 1978 to the petitioner,who happened to be the highest bidder,for a sum of Rs.8,500.On 23rd August 1979 the Village Officer,Thariode served on the petitioner an order,dated 27th July 1979,a copy of which is Ext.P -3,from the 1st respondent,the Tahsildar,South Wynad Taluk;therein it was stated inter alia that the 2nd respondent,the District Collector,Kozhikode,in his proceedings No.K.Dis.18511/79,dated 17th March 1979 had ordered to set aside the sale dated 14th July 1978 on the ground that the amount of sale was not reasonable;there was also therein a direction that the amount of Rs.8,500 deposited by the petitioner as sale price of the property as per the two chalans,dated 22nd July 1978 and 7th August 1979 was to be refunded to him.According to the averment in Para.3 of the writ petition,the original of Ext.P -4,objections,dated 13th August 1979 to the resale proposed,was filed by the petitioner before the 2nd respondent,the District Collector,Kozhikode.It is also averred in that paragraph that no reply thereto had been received.In Para.4 of the counter affidavit filed on behalf of the respondents it is stated that the original of Ext.P -4 did not appear to have been received by the 2nd respondent.

(2.) THE prayer in the writ petition is for the quashing of Ext.P -3 order and also for the issue of a writ of mandamus directing the respondents not to set aside the sale in favour of the petitioner.The submission made by Sri.K.S.Sebastian,the counsel for the petitioner,is that,in not having confirmed the sale in favour of the petitioner,and having ordered resale of the property,the 2nd respondent has acted in violation of the provisions of S.54 of the Kerala Revenue Recovery Act,1968,( Act 15 of 1968 ),for short the Act.In Para.2 of the counter affidavit filed on behalf of the respondents the events leading to the auction sale in favour of the petitioner have been stated.In Para.3 it;is averred that on the 2nd respondent examining the sale papers submitted to him by the 1st respondent,for confirmation,it was found that the amount fetched at the auction sale,namely,Rs.8,500,for 6.85 acres of land was far below the market price for similar lands in the area and there were also certain irregularities in the conduct of sale.He had,therefore,recommended the setting aside of the sale to the 2nd respondent who accordingly set aside the sale and ordered resale of the land.The petitioner was duly informed about it,and was also asked to receive the refund.As for the delay of one year odd occurred in this case,it was stated that it was due to time taken for correspondence between respondents 1 and 2 regarding the procedure followed in the sale and reasonableness of the price fetched at the auction sale;the delay was not intentional,but due to exigencies of administration. S.54 of the Act reads as follows: "54.Order confirming or setting aside sale. - On the expiration of thirty days from the date of the sale,if no application to have the sale set aside is made under S.52 or S.53 or if any such application has been made and rejected,the Collector shall make an order confirming the sale:Provided that if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected,he may,after recording his reasons in writing,set aside the sale."

(3.) SRI Sebastian contended that the sale takes effect from the date of the sale,not from the date of the confirmation and,therefore,the Collector has no jurisdiction to interfere with the sale,and the period of thirty days expires from the date of the sale.In support of this contention he relied on the ruling of the Full Bench of this Court in Thankam and others v.Damodaran and others(1976 RLT 526(FB)) to which decision I myself was a party.I have carefully gone through that decision,and find that nothing said therein has any impact on the issue raised in the writ petition.The decision,while construing the provisions of S.39(4)of the Travancore Cochin Revenue Recovery Act,laid down that that sale takes effect from the date of sale,not from the date of confirmation drawing the distinction between the provisions contained in the Revenue Recovery Act on the one hand,and those of S.65 of the Code of Civil Procedure on the other.It has,however,to be borne in mind that decision did not lay down a proposition that on the expiry of the period of thirty days from the date of sale,the sale would become confirmed automatically in case there was no application for setting aside the sale,as contended by the petitioners.To hold that the Collector has no jurisdiction to set aside a sale after a period of thirty days from the date of sale expired would virtually destroy the very purpose of the proviso to S.54 of the Act in as much,ordinarily,it is only after the expiry of that period the Collector has to apply his mind as to the legality of the procedure adopted and the reasonableness of the price fetched at the auction.