Govindu Rama Rao vs The Revenue Divisional Officer, Srikakulam and others

It is stated by the learned counsel for the petitioner that the value of the property which had been sold for Rs. 10,050 is really more than Rs. 20,000. Reliance also is placed upon the decision of a Bench of this Court in Mulajkar v. Government of Andhra Pradesh (1970) 2 An. W.R. 360=A.I.R 1971 And. Pra. 169 wherein it was held that only on the determination of liability and the amount due that the Government can take proceedings u/s 52 of the Revenue Recovery Act for recovering the amount. It is argued that as the Board of Revenue by its order dated 6th December, 1974 has observed at the end of the order that the authorities below should assess the correct balance taking into consideration the amount credited by the petitioner and proceed against the appellant for recovery, there is no final determination of the liability and hence it cannot be said that any amount is ''due'' from the petitioner. Sri E. Manohar, the learned counsel for the 3rd respondent, as well as the learned Government Pleader contend that the amount was finally determined by the Revenue Divisional Officer after giving an opportunity to the petitioner to produce his evidence and to submit his explanation. The petitioner did not prefer any appeal against the said order. The appeal to the Board of Revenue was only against the order imposing punishment of dismissal on the petitioner and the Board of Revenue had no jurisdiction in that appeal to consider against the correct balance and proceed against the appellant for recovery. It is also pointed out that the 3rd respondent was not a party to that appeal. In these circumstance, it is argued that even applying the principles laid down in the above decision, the amount is said to be due. One question that arises for consideration is whether amount can be said to be due when it is ascertained by the authorities concerned after an opportunity is given to the party or whether is cannot be said to be due until all the remedies by way of appeal and second appeal are exhausted. As a proper interpretation of the Bench decision is involved and as also the value of the subject-matter is more than Rs. 20,000, it is descriable that this matter is heard by a Bench. Sambasiva Rao, A.C.J.

The petitioner, who was Village Munsif of Vadada in Srikakulam District was dismissed from service on the ground that he had misappropriated the revenues of the Government, and also loan amounts collected by him. A part of the misappropriation was found out in July, 1965 and an explanation was called from him. Immediately, he was kept under suspension On 4th April, 1971, the Tahsildar sent another and more elaborate notice calling upon the petitioner to explain why action should not be taken against him for having misappropriated a large sum of, Rs. 22,386-26 of land revenue and loan amounts The petitioner tendered his explanation. On 25th of August, 1971 the land belonging to the petitioner was attached by publishing a notice in the District Gazette and the notice stated that sale will be held on 10th November 1971. The sate was, however, postponed on an objection raised by the petitioner. Thereafter, on 28th of May, 1972 the Tahsildar sent a report to the Revenue Divisional Officer reducing the amount of arrears to Rs. 21,217-36 and stating that the petitioner had misappropriated this amount. The Revenue Divisional Officer accepted the report and issued proceedings dated 1st July, 1972 that the petitioner had misappropriated that amount and called upon the petitioner to explain why he should not be dismissed from service. To this, the petitioner sent up his explanation stating that he had credited some more amount to the treasury. Accepting a part of his case, the Revenue Divisional Officer gave a further credit to the petitioner in a sum of Rs. 1,183-56. This order was passed on 5th September, 1972, Thereupon an appeal was preferred by the petitioner to the District Revenue Officer. 2. On 5th April, 1973, another notice was published in the District Gazette, this time attaching the petitioner''s undivided one-third share in the joint family property of 10 acres, 47 cents for recovering a sum of Rs. 20,033-88. The sale was scheduled to take place on 28th of May, 1973. The District Revenue Officer refused to stay the sale and on 5th June, 1973, the sale was held which fetched a sum of Rs. 10,050. The third respondent in the writ petition happens to be the highest bidder. Later, the District Revenue Officer dismissed the appeal. There was a Second Appeal to the Board of Revenue and even before it was disposed of, the present writ petition was presented in this Court on 2nd July, 1973. During the pendency of the writ petition, confirmation of sale was stayed on condition of the petitioner depositing a sum of Rs. 2,500. It should be noted that the appeal to the District Revenue Officer and the further second Appeal to the Board of Revenue were in respect of the punishment of dismissal that was imposed by the Revenue Divisional Officer on the petitioner. The Revenue Board by its order dated 6th December, 1974 dismissed the appeal, but while doing so, directed the lower authorities to assess the correct balance of the amount misappropriated by the petitioner taking into consideration the amounts actually credited by him, and to proceed against him for recovery of the amount thus ascertained.

Alladi Kuppuswami J., referred the writ petition to a Division Bench for two reasons. The first of them is that the real value of the subject matter of the writ petition is more than Rs. 20,000. The second ground which prompted the learned Judge to make the reference is that there is diversity of contention relating to the construction of decision in M.C. Mulajkar Vs. Govt. of Andhra Pradesh and Others, . Therefore the writ petition is before us now.

Sri Koka Raghava Rao''s contention in support of the writ petition is two fold. His first and basic contention is that the amount of misappropriation is not yet finally determined. The Revenue Board gave a direction to the lower authorities that the amount should be finally determined. The learned counsel there contends that unless and untill the amount is finally determined by the highest Appellate Authority no sale can be held and if any is conducted, it is invalid. He seeks to draw support to this contention from the decision of a Division Bench of this Court in M.C. Mulajkar Vs. Govt. of Andhra Pradesh and Others, .

The facts are clear. The Revenue Divisional Officer ascertained and determined the amount of arrears after giving notice and opportunity to the petitioner, at Rs. 20,033-88. It is not denied that the petitioner had opportunity to make his representation in regard to the amount of misappropriation before the Revenue Divisional Officer. He did submit his explanation. The Revenue Divisional Officer thereafter got published in the District Gazette a notice attaching the petitioner''s undivided one-third share in the joint family property of 10 acres, 47 cents to recove this amount of Rs. 20,033.88. Thus there is determination of the amount of arrears when the properties were attached and brought to sale. The point of Sri Raghava Rao however, is that this determination is not sufficient in the eye of law as it is enunciated by the Revenue Recovery Act. Such determination should be by the highest Appellate Authority. Since the Board of Revenue is the highest Appellate Authority it cannot be taken that the amount has been finally determined until it has ascertained the amount or some body else has determined the amount according to its directions. The question is whether this contention has any basis on the provisions of the Madras Revenue Recovery Act in accordance with which the recovery proceedings have been taken and the sale has been held.

The material provision in that Act is section 52. It reads:

Section 52--All arrears of revenue other than land-revenue due to the State Government all advances made by the State Government, for cultivation or other purpose connected with the revenue, and all fees or other dues payable by any person to or on behalf of the village servants employed in revenue or police duties, and all cesses lawfully imposed upon land all sums due to the State Government including compensation for any loss or damage sustained by them in consequence of a breach of contract, may be recovered in the same manner as arrears of land revenue under the provisions of this Act unless the recovery thereof shall have been or may hereafter be otherwise specially provided for.

The amount of arrears, which is now sought to be recovered comes under the category of "all sums due to the State Government," which is one of the categories of amounts that can be recovered under the Revenue Recovery Act, The sum due to the Government is an amount ascertained by the appropriate authority of the Government or by a Court as the case may be. The expression ''due'' necessarily implies a legal liability. Before a legal liability is fastened to any particular individual, he must be given due opportunity to meet the case of the Government that a particular amount was owed by him to the Government. Otherwise, one sided or arbitrary determination of the amount cannot lead to the conclusion that there is a legal liability fastended to the particular person. It is only when due opportunity is given to him and the amount is determined after giving that opportunity to the person concerned, the amount is said to be due to the State Government. Does it also mean that the ascertainment would not be complete with the determination of the sum by the authority concerned after giving due notice and opportunity to the person concerned ? Is it further necessary or can it be said that it will not become an amount due or sum due until the highest Appellate Authority completes consideration of the matter ? The latter contention cannot stand the test of scrutiny, because on making practical approach, it cannot be said that in every case there will be an appeal to the highest authority. If there is no appeal, the sum determined by the appropriate authority becomes final. Once that authority fixes the amount after due ascertainment, he cannot go on awaiting the sweet pleasure of the person concerned to go in appeal. Apart from the fact that section 52 does not give any room for such a construction, if the contention taken on behalf of the petitioner is in corporated into section 52, the very purpose of section 52 will be defeated and the intention of the Legislature will be violated. The recovery proceedings postulated by the Revenue Recovery Act are summary in nature land were not intended by the Legislature to be a prolonged affair. Once an Officer or authority who is empowered to determine the amount fixes it, after giving adequate opportunity to the person concerned it becomes due to the State Government. Availability of the remedy of appeal does not alter the legal character of the amount which has become due. Therefore once the Revenue Divisional Officer has determined the amount of arrears after notice to the petitioner, the sum has become due to the Government. It was only thereafter that property was attached and the sale conducted. Section 52 in our opinion does not in any way subscribe to the argument raised by Sri Koka Raghava Rao that the amount does not become due unless and until the highest Appellate Authority finally disposed of the dispute raised by the person concerned.

The Bench did not say anything in support of the learned counsel''s contention in M.C. Mulajkar Vs. Govt. of Andhra Pradesh and Others, There was no question of any appeal there preferred to any highest authority. The only question is whether the amount becomes due u/s 52 if it is arbitrarily fixed by the appropriate authority without giving an opportunity to the person concerned to make his representation after furnishing to him the relevant material. It was decided by the Bench that the sum becomes due and recovery proceedings u/s 52 of the Act could be proceeded with only after an anterior determination of the liability after giving sufficient opportunity to the person concerned. This all the decision of the Division Bench and it is patent that it renders no assisstance at all to Sri Koka Raghava Rao The view we have expressed above fully accords with this decision.

A part from this, taking the factual position also, it is impossible to interfere with the sale that has already been held. It was held to recover Rs. 30,036-38. The petitioner was all along contending that he had credited another Rs. 5,000 more and that should be taken into account. It is noteworthy that the actual factum of misappropriation has never been denied by him. Sri Raghava Rao however states before us that the amount in dispute is nearly Rs. 9,000. Even supposing that it is Rs. 9,000 for argument''s sake, still, the amount which has been misappropriated is Rs. 11,000. The sale has realised only Rs. 10,050. Even the admitted amount of misappropriation is above the sale proceeds. For this reason also, the sale cannot be in any way interfered with. It must stand.

The second line of argument of Sri Raghava Rao is based on the Malversation Regulation. The learned counsel submits that proceedings should have been taken under the Regulation and not under the Revenue Recovery Act. No objection has been admittedly taken on this ground at any time before what is more important is that this objection has not been taken and no ground based on this has been raised in the writ petition. So we cannot permit the petitioner to raise it in the course of argument.

The foregoing shows that there is no substance in the writ petition, which is accordingly dismissed with costs. Advocate''s fee Rs. 150. If the petitioner applies for refund Rs. 2,500 the appropriate authorities will decide the claim on its merits.