K.A. Abdul Gafoor, J.@mdashThis original petition was filed on 28-12-1992 challenging Ext. P6 and seeking a direction "to give sufficient publicity before the sale is conducted". Exhibit 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 Section 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 incorporating challenge 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. The 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 1st and 2nd respondents can take over the 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 Section 49 of the Revenue Recovery Act. The petitioner has several other contentions but except this none deserve consideration. Section 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. Exhibit P6 is that notice. It is also provided in sub-Section (2) that "the notice shall be duly served and published at least thirty days before the date of sale". Section 75 of the Act provides the mode of publication of notices etc. Sub-section (1) provides that in the case of sale of immovable property it shall be by affixture of a copy of the notice. Sub-section (2) provides as follows :
"The Collector or the authorised officer may, in his 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. The subject-matter of the sale in this case is 74.633 cents of land in Sy. No. 178/14-2 of Kayamkulam Village and the buildings therein. Admittedly, it is an industrial unit. It is stated in the Statement filed by the 3rd 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-section (2) of Section 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 officer has to be exercised with reason and according to the circumstances and in a judicious manner. In this case, as mentioned above, the sale is in respect of 74.633 cents of land with a building and machinery which were intended for an industrial establishment. The utility of such a property and consequently fixation of the price will be as if it is a property which could be used for industrial purpose. An intending purchaser will not be informed about the sale by publication of the notice in the property in the Taluk Office, in the Village Office or in the Panchayat Office.
The public auction of any property on the ground of default by the owner is to fetch maximum price for the property. This being a sufficiently large extent of land in an important locality namely Kayamkulam and a property being used as an industry, necessarily to invite intending purchasers, the 3rd respondent should have exercised his discretion as contained in Section 75 (2) of the Act to publish the notice of sale in the newspapers as envisaged in that sub-section. In this case, the 3rd respondent failed to apply proper discretion in a reasonable manner, so as to fetch the maximum price for the property. Thus, the petitioner is justified in contending that there has been no publication of the sale notice as envisaged in Section 49 of the Revenue Recovery Act. Publication shall be in terms of Section 75. It is admitted by the 3rd respondent that he had published the notice only in the property of the defaulter, in the Taluk Office, in the Village Office and in the Panchayat Office. The 2nd respondent also did not have a case that any notice has been published in the newspapers as envisaged in Section 75 (2). In answer to the contention of the petitioner that there was no notice, it is submitted by the 1st and 2nd respondents that "the 3rd respondent is conducting the sale strictly in compliance with the provisions of the Revenue Recovery Act". Additional respondents 4 and 5, the purchasers, contend that "the property, building and machinery were sold in public auction on 14-12-94" and that ''due publicity was given to the sale in accordance with law''. It is further contended that "there was sufficient publicity given for the sale in accordance with law". It is also contended that on the basis of the sale conducted in terms of Ext. P6 it had been confirmed as per Ext. R4(a). Thus, it is clear that the only publication of notice of sale is in the property of the defaulter, in the Taluk Office, Village Office and Panchayat Office. The 3rd respondent has not shown any reason why he did not exercise his discretion in terms of Section 75(2) to publish the notice in newspapers in order to fetch maximum price for the property. The property being one put in for industrial use, with machinery and building for an industry should have been notified for sale through public notice to invite intending purchasers, by publishing the notice in the newspapers: Taking into consideration the nature of the property, the 3rd respondent should have exercised the discretion vested in him in terms of Section 75 (2) of the Act. The action of the 3rd respondent is, therefore, not reasonable. The law really intends to serve the purpose. The purpose behind Section 75 (2) cannot be lost sight of by the 3rd respondent, with whom a discretion is conferred by the law. The 3rd respondent cannot refuse to understand the sense underlying behind Section 75 (2). Mere compliance with the letter of the law is not sufficient. The affixture of notice as provided in Section 75 (1) may be sufficient in a sale. But, the Sale Officer has to consider the nature of the property, its value and the use to which the property can be put to while deciding the nature of the notice or publication of the notice. Therefore, as he did not exercise the discretion, the real purpose behind the law provided in Section 75 (2) is defeated. Supreme Court in
"Whether the public authority acted bona fide and in the best interest as prudent owner in the given facts would do be gauged from impugned action and attending circumstances. The authority should justify the action assailed on the touchstone of justness, fairness, reasonableness and as a reasonable prudent owner."
In this case, the 3rd respondent did not act reasonably and he did not exercise the discretion vested in him in terms of Section 75 (2). Accordingly, the sale is bad and is liable to be quashed.
4. The respondents 1 and 2 and also Addl. respondents 4 and 5 put forward a contention that the petitioner should have approached the statutory authority for setting aside the sale in terms of the Revenue Recovery Act itself. He had got an alternative remedy to get the sale set aside if there was procedural irregularities, or lack of publication of notice. Therefore, the Original petition is not maintainable due to availability of alternative and efficacious statutory remedy. It is also contended by the respondents Nos. 4 and 5 that there was sufficient consideration and there is no insufficiency in the sale price and insufficiency in sale price is not a ground. It is also contended by Addl. respondents 4 and 5 that inadequacy in the price cannot be a reason to set aside the sale as held by this court in Subaida Sulaiman v. Hamsa (1991) 2 Ker LT 158. Inadequacy of the consideration is not a matter for this court to decide. That is not touched also.
5. When there is flagrant violation of law, and there is no notice as provided by the Statute, availability of alternative remedy shall not be a reason to negative the contention of the petitioner. Moreover, the petitioner had approached this court even before the sale. In the decision reported in Padmanabhan v. Kerala State Handloom Development Corporation (1991) 2 Ker LT 55, this court observed that, to dismiss a petition on the availability of alternative remedy after having admitted the case few years ago, will result in injustice to the petitioner. Moreover, as already pointed out, when there is flagrant violation of the statutory provision and lack of notice, it will be unjust to relegate the petitioner to alternative remedy.
6. The petitioner has a contention that all the items of machineries are not put to sale. For this purpose, he filed C.M.P. No. 36143/96 to appoint a Commission. It is contended by respondents Nos. 1 and 2 that the petitioner''s unit was attached on 10-8-89 and it was returned to the petitioner on 13-12-89 and the petitioner has acknowledged the receipt of the unit as per Ext. R1(a). Again, the properties with machinery were attached on 14-12-90 by the 3rd respondent. Thus, the entire machineries were in possession of the petitioner until 14-12-90. If anything is missing, the petitioner is responsible for that. This being a factual aspect in dispute this court cannot decide as to who is responsible for the missing items of machinery.
7. As Ext. P6 notice is found to be not sufficient, and as no publication of notice is made in newspapers; Ext. P6 as well as consequent sale and its confirmation are quashed. The properties will continue to be in the possession of the Kerala Financial Corporation. They are free to put the properties to sale in accordance with law by publishing the notice in the newspapers. If the petitioner is willing to pay the entire arrears and other dues, naturally the 1st and 2nd respondents are free to receive the amount from him.
O.P. is allowed to the above extent. No costs.
