THE KADUTHURUTHY URBAN CO-OP. BANK LTD v. STATE OF KERALA

WP(C) 14580/2004APPENDIXPETITIONER'S EXHIBITS:EXT.P1TRUE PHOTOSTAT COPIES OF THE AWARD PASSED BYTHE ASST. REGISTRAR OF CO-OP. SOCIETIES DATED16.9.1996.EXT.P2TRUE PHOTOSTAT COPY OF THE JUDGMENT DATRED20.1.2003 PASSED IN O.P. NO. 9303/2000 OF THIS COURT.EXT. P3TRUE PHOTOCOPY OF THE PROCEEDINGS DATED31.7.2003 OF CONFIRMATION ISSUED BY THE 3RDRESPONDENT.EXT.P4TRUE PHOTOCOPY OF THE PROCEEDINGS DATED1.4.2004 COMMUNICATED TO THE PETITIONER ON15.4.2004.EXT.P5TRUE PHOTOSTAT COPIES OF THE MORTGAGE DEEDNO. 660/1995 DATED 20.2.1995.EXT.P6TRUE PHOTOSTAT COPY OF TE MORTGAGE DEED NO.661/1995 DATED 2.2.1995.EXT.P7TRUE PHOTOSTAT COPY OF THE MORTGAGE DEEDNO. 689/1995 DATED 20.2.1995.EXT.P8TRUE PHOTOSTAT COPY OF SALE DIARY IN E.A. NO.804/1997 DATED 27.11.1995.EXT.P9TRUE PHOTOSTAT COPY OF SALE DIARY IN E.A. NO.826/1997 DATED 27.11.1998.EXT.P10TRUE PHOTOSTAT COPY OF SALE DIARY IN E.A. NO.810/1997 DATED 27.11.1998.EXT.P11TRUE PHOTOSTAT COPY OF SALE DIARY IN E.A. NO.810/1997 DATED 27.11.1998.EXT.P11TRUE PHOTOSTAT COPY OF THE LETTER FORCONFIRMATION DATED 10.6.1999.EXT.P12TRUE PHOTOSTAT COPY OF THE LETTER FORCONFIRMATION DATED 23.4.2001.EXT.P13TRUE PHOTOSTAT COPY OF THE LETTER FORCONFIRMATION DATED 23.4.2001.EXT.P14TRUE PHOTOSTAT COPY OF THE STATEMENTPERTAINING TO THE TRANSACTION AS ON TODAY. :2:WP(C) 14580/2004RESPONDENTS' EXHIBITS:EXT.R12(a)PHOTOCOPY OF THE FORM OF PROCLAMATION OFLAND NO. G1-1588/97 DATED 21.4.2004 ISSUED BY THE4TH RESPONDENT.// TRUE COPY //P.S. TO JUDGE.knc/- P.R. RAMAN, J.=============W.P.(C) NO. 14580 OF 2004===================DATED THIS, THE 9TH DAY OF FEBRUARY, 2007J U D G M E N TPetitioner is a Co-operative Bank registered under the Kerala Co-operative Societies Act, doing business in Kottayam District. 2. According to the petitioner, Respondents 5 to 11 are the legalheirs of Late Sri. Karunakaran, Kunnumchirayil, Muttuchira, who died on4.7.1992. Sri. Karunakaran and his son Shiju, the 7th respondent hadavailed three business loans from the petitioner Bank on 9.6.1992 and assecurity for the said loans, it is stated that they executed a mortgage deedNos. 1408/1992, 1409 & 1410/2002. After the death of Karunakaran, hislegal representatives - Respondents 5 to 11 availed three other loans whichwere secured as per registered mortgage deed Nos. 659, 660 and 661/1995,executed on 22.2.1995. While accepting the mortgage, they verified theregisters of the sub registry by taking out the encumbrance certificate andfound that the only mortgages in their favour bank was the existingliability. In connection with the above loan transaction, title deedspertaining to 1 Acre and 50 cents of land comprised in Sy. Nos. 871/5 and WP(C) 14580/2004:2:871/4 covered by Sale deed No. 878/1968 of SRO, Kaduthuruthy standingin the name of Late Karunakaran was deposited with the petitioner Bank.Subsequent to the death of Karunakaran and after availing of loans byrespondents 5 to 11, the transaction became a non performing one andsubsequently, recovery proceedings were initiated against respondents 5 to11 by resorting to the remedies under Section 69 of the Kerala Co-operativeSocieties Act by filing arbitration cases. Eventually, an award was passedon 16.9.1996, copy of which is produced as Ext.P1 series in this writpetition. Even after the award, the judgment debtors did not close thetransaction and hence the petitioner instituted execution proceedings andthe mortgaged properties were put to sale in public auction. As there wasno bidders, the Bank sought leave and bid the property in auction and thematter was communicated to Respondents 5 to 11. The sale was confirmedand and confirmation letter was given on 10.6.1999 to the Bank, whichassumed possession of the property. While so, petitioner came to knowthat the property in question was going to be sold by the 4th respondent forcertain abkari dues allegedly due from Late Karunakaran. Though thepetitioner gave a report dated 2.9.1999 to the Village Officer, Muttuchira,through its General Manager ; ignoring the same, the Tahsildar, Vaikomissued sale notification for sale of the property for the alleged abkari dues WP(C) 14580/2004:3:amounting to Rs. 3,53,281/-. No notice was issued to the petitioner, whohave a valid, substantial and subsisting interest in the property which wasalerted through the report submitted to the Village Officer and in suchcircumstances, petitioner filed O.P. 9303/2000 before this Court, which wasdisposed of by Ext.P2 judgment dated 20.1.2003, directing to consider theclaim of the petitioner before confirmation of sale. Thereafter, petitionerfiled an application before the 4th respondent on 22.1.2003, to stop the saleproceedings and accordingly, the sale was adjourned to 7.2.2003 on whichday also petitioner filed another application. But ignoring the objectionsand claims of the petitioner, the Tahsildar conducted the sale on 7.3.2003 infavour of the 12th respondent and thereafter the sale was confirmed on31.7.2003 as evidenced by Ext.P3 produced herein. On receipt of Ext.P3,though the petitioner preferred a revision before the second respondent,without conducting a proper hearing, the same was dismissed by Ext.P4proceedings dated 1.4.2004. Hence petitioner impugns Exts.P3 and P4. 3. It is urged that Ext.P3 has been passed without issuing notice tothe petitioner in spite of the fact that petitioner is interested in the property,that the property is at present in the ownership and possession of thepetitioner, that the property having a value of Rs. 10 lakh at present hasbeen put in public auction for recovery of a paltry sum of Rs. 3,53,000/- WP(C) 14580/2004:4:which was bid in auction for an amount of Rs. 5,25,000/-, that theproceedings jeopardize the interest of the petitioner and mala fides andoblique motives writ large on the face of Ext.P3 which is liable to be setaside. According to the petitioner, Ext.P4 is vitiated since none of thegrounds urged by them has been considered by the second respondentwhile passing Ext.P4, that the abkari dues have not been declared as publicrevenue due on land in the purview of Section 2(J) of the Kerala RevenueRecovery Act, that petitioner Bank is a secured creditor as has a firstcharge created upon the property to be sold, that no notice has been issuedto the petitioner by respondents 3 and 4, that petitioner is prepared to invokeSection 51 and tender the amount due to the Government and acquire thestatus of a judgment creditor as contemplated under Section 47 of the KeralaRevenue Recovery Act,; but the same will be possible only if the entireproceedings are set aside. On the aforesaid grounds, it is prayed thatExts.P3 and P4 be quashed and a direction be issued commandingrespondents 3 and 4 to consider the claim preferred by the petitioner.4. Respondent No.12 who is the auction purchaser filed a counteraffidavit inter alia contending as follows: As per Rule 5(11) of the KeralaAbkari Shops (Disposal in Auction) Rules, 1974, all the auction purchasersin whose names the sale of shops are declared by the auctioning officer at WP(C) 14580/2004:5:the time of auction shall not be permitted to transfer or encumber any of theassets to the detriment of the amount that may become due under thecontract including the deposit due from them and such transactions, if any,notice shall be deemed void to the extent of the sum due under such contractand this is the legal position applicable to late Karunakaran, since thecontract was for the period 1983-84. If any transfer is made or anyencumbrance is created in any of the assets, the same will be void andhence the mortgage of the properties by the legal heirs of Karunakaran, whoare respondents 5 to 11 with the petitioner Bank is void as per Rule 5(11) ofthe Rules. It is an admitted case that solvency certificate dated 28.2.1983was used by the defaulter for bidding Shop Nos. 17 and 23/1983-84 ofKuruvilangadu Excise Range and the properties covered by such solvencycertificate and other assets at the time of contract are not liable to betransfered as per Rule 5(11) of the Rules and hence Exts.P3 and P4 are notliable to be interfered with. He purchased the property for an amount of Rs.5,25,500/- and the total extent is 1.37.289 acres of landed property in avillage area and so the sale consideration is more than the market value.The sale is confirmed by the Revenue Divisional Officer, the thirdrespondent herein as per proceedings dated 31.7.2003, that the revisionpetition of the petitioner Bank was dismissed by order dated 1.4.2004, as WP(C) 14580/2004:6:per Ext.P4, the properties were handed over to the 12th respondent andproclamation of purchase of land was notified by the Tahsildar on21.4.2004, as evidenced by Ext.R12(a). He is in possession of the propertyand agreed to sell the same to some other persons since the saleconsideration was already paid by him after availing loan from privatepersons. The first respondent admittedly received Rs. 5,25,500/- as early ason 7.3.2003. The Board of Directors of the petitioner Bank sanctioned theloan after knowing that late Karunakaran and his legal heirs are having hugeliabilities as arrears towards Government and the petitioner in collusionwith respondents 5 to 11 and late Karunakaran helped them to cheat theGovernment. If a vigilance enquiry is conducted in respect of themortgages and circumstances lead to the mortgages, it will clearly reveal theconspiracy for cheating Government between them and the petitioner hasno bona fides in approaching this Court. Ext.P4 order can be challengedbefore the Government by way of second revision under Section 83(2) ofthe Kerala Revenue Recovery Act. He has developed the property byinvesting huge amount and the petitioner has no preferential right. Hencethis writ petition is liable to be dismissed.5. On behalf of the second respondent - the Land RevenueCommissioner, a counter affidavit is filed by the Assistant Commissioner, WP(C) 14580/2004:7:Land Revenue. It is averred that as per revenue recovery certificate B7-6583/97 of the District Collector, Kottayam for realisation of Rs. 3,53,201/-along with 12% interest on Rs.1,46,500/- from 1.2.1996 being the abkariarrears for the period 83-84 on T.S. No. 17 and 23 of Kuruvilangadu Rangedue from the legal heirs of Kochukunju Karunakaran, Kunnamchira,Muttuchira Village in Vaikom Taluk, the Tahsildar, Vaikom initiatedrevenue recovery steps against the defaulters to realize the dues and theirmovable properties were attached and sold in public auction on 15.12.1997for an amount of Rs. 27,000/- and the said amount was adjusted towards theabkari dues. An extent of 1.43289 Acres of land in Sy. No. 871/4,5 and 50cents of land in Sy. No. 790/3A of Kuttuchira Village owned by thedefaulter had been attached and notice under Section 36 of the RevenueRecovery Act was issued to all legal heirs of late Kochu KunjuKarunakaran. Then attached properties excluding 6 cents were notified forsale on 3.9.1999; but the sale was postponed to 17.9.1989 for want ofsufficient bidders. In the meantime, the General Manager, KaduthuruthyUrban Co-operative Bank filed an objection petition claiming that thelanded properties in Sy. No. 871/4.5 notified for sale was mortgaged to theBank by late Kochukunju Karunakaran and the Bank bid the land in itsfavour on 27.11.1998. Hence the sale posted to 17.9.1999 could not be WP(C) 14580/2004:8:conducted. The details of the landed properties mentioned in the solvencycertificate produced by Kochukunju Karunakaran was gathered from theAssistant Excise Commissioner, Kottayam and on verification of the same,it was understood that the landed properties in Sy. No. 871/4,5 have beenincluded in the solvency certificate and the same lands were also seenmortgaged in 1992 and 1995 to the Bank. Thus the Government had a firstcharge over those properties and a reply to that effect was given to theBank. The sale was again notified to 28.3.2000 and the Bank filed O.P.9303/2000 challenging such sale. The said original petition was disposedof on 13.2.2003 and thereafter, revenue recovery steps were resumed andsale notice under Section 49 of the Revenue Recovery Act was issued to allthe legal heirs of late Kochukunju Karunakaran. In view of the stay orderin O.P. 1722/2003 filed by Sri. Kurian Joseph, sale of landed propertyextending 50 cents in Sy. No. 790/3A Muttuchira Village was adjournedand the rest of the property having an extent of 1.37.239 Acres in Sy. No.871/4, 5 in Muttuchira Village was bid for Rs. 5,25,500/- in the auction saleheld on 7.3.2003. In the light of the directions contained in the judgment inO.P. 9303/2000, the Bank authorities were also called for hearing by theRevenue Divisional Officer, Pala before confirming the sale. Thecontention of the Bank that they had got first charge over the property was WP(C) 14580/2004:9:rejected and the sale was confirmed in the name of Mathew Jacob, as perExt.P2 order dated 31.7.2003. Petitioner Bank filed a revision before theLand Revenue Commissioner, which was rejected by Ext.P4 order. Theproclamation of purchase of land in Appendix - VII in connection with thesale of property was also issued to the concerned parties by the Tahsildar,Vaikom, on 21.4.2004. It was in the mean time that the petitioner Bankfiled this writ petition.6. The grounds raised in the writ petition are contended to beuntenable. The sale was confirmed on 31.7.2003 as per the RevenueRecovery Act and Rules. It is further contended that as per Section 44(2) ofthe Kerala Revenue Recovery Act, any transfer of immovable propertymade by the defaulter after public revenue due on any land from him hasfallen in arrears with intent to defeat or delay the recovery of such arrearshall not be binding upon the Government. As per Section 3 of the KeralaRevenue Recovery Act, the public revenue due on land shall be the firstcharge on that land. Thus, the abkari arrears for the period 1983-84 beingthe first charge over the properties, the revision petition was dismissedobserving this fact also. Hence the second respondent also prayed fordismissal of the writ petition. WP(C) 14580/2004:10:7. For and on behalf of the first respondent, a separate counter is filedby the Under Secretary, Revenue Department, Secretariat. It is stated thatKarunakaran died on 4.7.1992 after availing loan from the Bank and ondefault of the loan, petitioner Bank filed arbitration case and an award waspassed. After that the legal heirs of the deceased closed all the loan on15.2.1995. and thereafter on 28.2.1995 they availed three business loansamounting to Rs. 50,000/- each, by executing another mortgage deed byRespondent Nos. 5, 7 and 9 in the Sub Registry Office, Kaduthuruthy, infavour of the Bank. For the said loan also, the same property was pledgedand the original document was pledged in the Bank for that purpose. Ondefault, the Bank filed arbitration case in this case also and an award waspassed on 16.9.1996. It is stated that valid requisition for realizing theabkari arrears for the period 1983-84 on T.S. No. 17 and 23 ofKuruvilangad Range from the legal heirs of late Karunakaran was receivedand hence the movable properties of the defaulters were attached and soldin public auction on 15.12.1997. Thereafter, an extent of 1.543.289 acres ofland in Sy. No. 871/4,5 and 50 cents of land in Sy. No. 790/3A ofMuttuchira Village were attached and excluding 6 cents, those propertieswere notified for sale on 3.9.99. The first respondent also referred to O.P.Nos. 9303/2000 and 1722/2003, which has already been referred to while WP(C) 14580/2004:11:dealing with the counter affidavits filed by the other respondents. Hence toavoid repetition, they are not reiterated herein. According to the firstrespondent, abkari arrears has got first charge over the properties. It isfurther contended that the Supreme Court in Dena Bank v. BhikhabhaiPrabhaudas Pareksh & Co. ((2000) 5 SCC 694) has held that the Statehas got first charge over the property of the defaulter. Petitioner had beenheard before confirmation of the sale and the same was done as per theRevenue Recovery Act. Placing reliance on Section 44(2) of the RevenueRecovery Act, it is contended that transfer of the immovable property by thedefaulter after public revenue due on any land from him has fallen in arrear,with intent to defeat or delay recovery of such arrears shall not be bindingupon the Government. They also prayed for the dismissal of the writpetition.8. Heard the parties.The petitioner contended that the solvencycertificate issued in favour of late Karunakaran, at the time of bidding inauction T.S. No. 17 and 23/ 1983-84 of Kuruvilangad Range and T.S.39/83-84 of Kaduthuruthi Range did not include the property in questionand prayed that the records be called for. Accordingly, records were calledfor and the entire records were produced with a memo. WP(C) 14580/2004:12:9. I shall now deal with the contention regarding as to whether therespondent State has got a first charge over the property in question. I haveperused the file. The solvency certificate contained in page 449 of the filewas in favour of Karunakarann. The certificate was issued as applied for byhim. The property offered is 3 Acres 19 cents of land in Sy. No. 790/3A,806/1, 791/18/1, 791/18/2, 791/7, 871/4 and 871/5 and the building. Theproperties are stated to be situated in Vaikom Taluk, Kaduthuruthy Village.The value shown is Rs. 2,02,500/-. There is a solemn affirmation on theabove details by Karunakaran on 28.2.1983. The certificate thereunderissued by the Tahsildar certifying that Kochukunju Karunakaran, residing atKunnamchirayil House, Kaduthuruthy Village, Vaikom Taluk is solvent tothe extent of Rs. 1,75,000/- on his own immovable properties over which hehas independent salable right and which are free from encumbrance as on15.2.1983. The certificate is issued on 28.2.1983. What has been sold inpublic auction for recovery of the abkari dues under the Revenue RecoveryAct, which is the subject matter of the writ petition is an extent of 1.37.389Acres of land in Sy. No. 871/4 and 871/5 of Muttuchira Village. Thus, whathas been sold in public auction forms part of the extent of land in respect ofwhich the solvency certificate was issued as early as on 28.2.1983. The saleconducted was for realization of the abkari dues for the period 1983-84 of WP(C) 14580/2004:13:T.S. Nos. 17 and 23 of Kuruvilangadu Range. By virtue of Rule 5 (11) ofthe Abkari Shops (Disposal in Auction) Rules, 1974, there is a first chargein favour of the Government. Rule 5(11) of the relevant rules thus: "Auction purchasers in whose names thesales of shops are declared by the auctioningofficer at the time of auction shall not be permittedto transfer or encumber any of their assets to thedet3riment of the amount that may become dueunder the contract including the deposit due fromthem and such transactions, if any, notice shall bedeemed void to the extent of the sum due undersuch contract."10. In view of the clear provisions contained in Rule 5(11) as above,any encumbrance created of the assets covered by the solvency certificatewill be deemed to be void to the extent of the sum due under such contract.Thus, the contention of the petitioner that the mortgage created in theirfavour is the first charge has to be repelled. Admittedly, the mortgage wascreated much later to the auction bid based on the solvency certificate issuedas referred to above. 11. In this connection, I may refer to the decision in W.A. 3023/2001arising out of O.P. 8245/1995 filed by the petitioner Bank inter alia raisingthe same contention which was however repelled by this Court. WP(C) 14580/2004:14: Of course, the parties are different but the principle to be applied is thesame.12. The petitioner Bank filed O.P. 8245/1995 before this Courtwherein they challenged the revenue sale conducted for recovery of certainabkari dues. In that case the 5th respondent one Mr. Joy, son of Kurianoffered the property concerned and he gave solvency certificate. Based onthe same, he bid the right to the abkari shops under the Abkari Shops(Disposal in Auction) Rules, 1974, on 8.3.1985. Subsequently, on15.3.1985, hr created a mortgage in support of his property in favour of thepetitioner Bank. The State brought the property to sale under the RevenueRecovery Act and respondent No.6 therein purchased the property.Petitioner Bank put forward a claim that since the property was the subjectmatter of mortgage in favour of the Bank created on 15.3.1985 the Bank isentitled to proceed against the property in preference to the claim madeunder the Abkari Act. That claim was rejected by the revenue Recoveryauthorities - both by the appellate authority as well as the revisionalauthority. It was thereafter that the writ petition was filed seeking to quashthe various orders passed, Exts.P1, P2 and P4 referred to therein. Thelearned Single Judge, after considering the relevant materials held that theliability created in favour of the State would prevail over the mortgage and WP(C) 14580/2004:15:right obtained by the Bank on the strength of that mortgage. The originalpetition was dismissed. There was a writ appeal as W.A. 3023/2001 whichwas also dismissed confirming the decision of the learned Single Judge. Itwas held that on a scrutiny of Rule 5(11) of the Abkari Shops (Disposal inAuction) Rules, it is seen that respondent No.5 was not permitted totransfer or encumber any of his assets to the detriment of the amount thatwould become due under the contract including the due deposit from himwhen he bids for and obtains the right to vend liquor in terms of the AbkariShops (Disposal in Auction) Rules. The moment he becomes a bidder, whois successful, the rule envisages that he cannot create any encumbrance onthe property. This additional reason was also stated to support theconclusion of the authorities and of the learned Single Judge. Accordingly,even at the admission stage, the writ appeal was dismissed.13. Thus, it is seen that the property in question which was solvedfor abkari dues for the year 1983-84 and there was a first charge in favourof the Government and any transaction subsequently entered into byKarunakaran or his legal heirs in respect of the very same property can onlystand subject to the realization of the dues under the Abkari Act from thedefaulter. In the circumstances, petitioner Bank cannot have any priority fortheir debt over the abkari dues. WP(C) 14580/2004:16:14. Section 28 of the Abkari Act reads thus: "All duties, taxes, fines and fees payable tothe Government direct under any of the foregoingprovisions of this Act or of any license or permitissued under it, and all amounts due to theGovernment by any grantee of a privilege or byany farmer under this Act or by any person onaccount of any contract relating to the AbkariRevenue may be recovered from the personprimarily liable to pay the same or from his surety(if any) as if they were arrears of Land Revenueand in case of default made by a grantee of aprivilege or by a farmer, the Commissioner maytaken grant or farm under management at the riskof the defaulter or may declare the grant or farmforfeited, and resell it at the risk and loss of thedefaulter. When a grant or farm is undermanagement under the section, the Commissionermay recover any moneys due to the defaulter byany lessee or assignee as if they were arrears ofLand Revenue."15. In Gourikutty Amma v. District Collector (1975 KLT 29) thisCourt held that the amounts due under the Abkari Act are recoverable as ifthey are arrears of land revenue. It was also held in A. Damodaran v.State of Kerala (1976 SC 1533) that the liability to satisfy the duesarising out of a bid is enforceable under Section 28 quite apart from anycontractual liability. WP(C) 14580/2004:17:16. Thus, by virtue of Section 28 of the Abkari Act, the State isentitled to recover the abkari dues by putting Revenue Recovery Act inmotion. Section 5 of the Revenue Recovery Act provides the manner inwhich such public revenue is to be recovered. One such mode is byattachment and sale of the defaulter's property, both movable andimmovable. Chapter III of the Revenue Recovery Act deals with theprocedure to be followed for attachment and sale of immovable property.As per Section 34 thereunder, a written demand has to be served on thedefaulter specifying the name of the defaulter, the amount of the arrear ofpublic revenue due on land for which the attachment is being made andfurther details as to be prescribed and the time allowed for such paymentand if within the time prescribed, if any objection is received from thedefaulter, the same has to be disposed of and in case when the defaulterneglects to pay, the Collector or the authorized officer is empowered toproceed to rec over the arrears by attachment and sale of the immovableproperty of the defaulter as envisaged by Section 35. The manner in whichthe immovable property has to be sold is also prescribed under the Act. Asper Section 36 of the said Act, the attachment has to be effected by affixinga notice thereof to some conspicuous part of the immovable property to beattached and by serving a copy on the defaulter. A notice has also to be WP(C) 14580/2004:18:published. The attachment of the immovable property will becomeeffective on the date of on which notice under sub-section (1) of Section 36was affixed on the property. As per Section 44 of the Act, any engagemententered into by the defaulter with anyone in respect of any immovableproperty after the service of the written demand on him shall not be bindingupon the Government. Any transfer of immovable property made by adefaulter after public revenue due on any land from him has fallen in arrear,with intent to defeat or delay the recovery of such arrear, shall not bebinding upon the Government. There are also provisions for dealing withthe claim of release or attachment by third parties as envisaged by Sections46 and 47 of the Act. Section 49 of the Act prescribes the procedure forsale of immovable property. the sale by public auction is to the highestbidder after fixing the time and place by the District Collector or theauthorized officer having jurisdiction. Previous to the sale, the DistrictCollector or the authorized officer, as the case may be, shall issue noticespecifying the name of the defaulter and the other details shall be dulyserved in public on the defaulter.17. On a reading of the above provisions, it can be seen that beforethe sale of the immovable property, it has to be preceded by an attachmentof property after due notice to the defaulter. After attachment, giving all WP(C) 14580/2004:19:the details of the sale, a notice has to be issued in the language of theVillage where the property is situated. In this case, as contemplated underSection 49(2) of the act, notice as prescribed had been issued on variousdates. The legal heirs of the defaulter late Karunakaran was given duenotice of the sale of the immovable property and acknowledged by them.In O.P.17424/1997 Savithri Karunakaran challenged the proceedingsinitiated under the Revenue Recovery Act for recovery of the sum due fromher husband inter alia contending that the immovable property sought to beattached belong to her and not to the deceased. But this Court was notinclined to accept the contention since the petitioner had ample remediesunder the Revenue Recovery Act to raise a claim as regards the immovableproperties. In O.P. 9303/2000 petitioner herein moved this Court inter aliacontending that there is a mortgage in favour of the Bank and that they hadobtained an award. This Court, while disposing of the original petition byjudgment dated 28th January, 2003 observed as follows:".............. Petitioner is only a bank to whichthe property in question had been mortgaged andlater proceeded against and award has beenobtained. All these are subsequent to the revenuedebt had fallen due on the owner of the property.When this is an admitted position, necessarily, theimpact of Section 44 of the Revenue RecoveryAct has to be taken into consideration beforeconfirming the sale the petitioner shall also be WP(C) 14580/2004:20:heard by the Collector concerned with regard toits interest over the property."18. Thereafter petitioner was also heard in the matter beforeconfirming the sale. Their contentions were considered and rejectedagainst which they filed a revision. That was also dismissed. As perExt.P3 proceedings of the Revenue Divisional Officer, the contention ofthe petitioner that they had a first charge over the property was repelledafter finding that the property was attached for realization of the abkariarrears due from late Karunakaran relating to the period 1983-84 and basedon the requisition made by the Assistant Excise Commissioner forrealization of the arrears related to T.S. Nos. 17 and 23 of KuruvilangadRange for the period 1983-84 were taken and the Tahsildar initiatedRevenue Recovery proceedings against Smt. Savithri Karunakaran and sixothers. Notice under Sections 7 and 34 of the Act were issued on10.3.1997 and notice under Section 36 was also served on 1.7.1999. Themovables belonging to the defaulters were attached and sold in publicauction for an amount of Rs. 27,000/-. Since the defaulters failed to remitthe dues, the attached property was notified for sale and in the auction heldon 7.3.2003 and out of the nine persons participated, the 12th respondentMathew Jacob bid the land for an amount of Rs.5,25,500/-. Pursuant to the WP(C) 14580/2004:21:judgment in O.P. 9303/2000 the Bank was heard in the matter. Afterhearing, it was held that the defaulted amount under the Abkari arrears isRs. 3,53,281/0 + interest and the same is related to the period 1983-84.On examining the letter dated 30.6.2000 of the Assistant ExciseCommissioner, Kottayam, it was found that the solvency certificate dated28.2.1983 issued by the Tahsildar, Vaikom was used by the defaulter forbidding T.S. Nos. 17 and 23/83-84 of Kuruvilangadu Range and that theproperty in question was included in the solvency certificate. Thus, it isclear that the defaulter participated in the auction on the strength of thesolvency certificate which includes the property in question. Afterperusing the sale records, it was found that the Tahsildar Vaikom hadobserved all the legal formalities in conducting the sale and no proceduralirregularity has been noticed. Thus, the auction sale held on 7.3.2003 wasconfirmed in the name of the 12th respondent. The Commissioner, LandRevenue, on revision, by Ext. P4 proceedings dated 1.4.2004, confirmedthe said finding. The matter was re-examined by him with relevant recordsand he was satisfied that there was no procedural irregularity in the matter.19. As I have already found the solvency certificate did include theproperty in question based on which the defaulter bid in auction the toddyshops for the year 1983-84 towards which abkari dues are in arrears, which WP(C) 14580/2004:22:is a public revenue on land and hence liable to be recovered under theRevenue Recovery Act. I do not also find any material irregularity in themanner of conducting the sale of the property in question.20. In the circumstances, there is no merit in the writ petition.Accordingly, the same is dismissed.The original records produced as per memo dated 1st December,2006 shall be returned to the Government through the Government Pleaderafter obtaining proper receipt after the expiry of 30 days from today and incase no appeal is filed.P.R. RAMAN,JUDGE.knc/-