N. Varadarajulu Naidu (Died) and Others vs The Tamil Nadu Theatre Corporation Limited and Another

M.M. Ismail, C.J.—This is a petition for the issue of a writ of certiorari to quash the proceeding of the Tahsildar, Kallakurichi taluk, South

Arcot district, dated 30th August, 1978. The proceedings were issued u/s 52-A of the Revenue Recovery Act as amended by Tamil Nadu Act

XII of 1972. Since the writ petition has to be allowed on a very narrow ground, we are not going into the other particulars. In paragraph 3 of the

affidavit filed in support of the writ petition, the Petitioner has stated that the Petitioner has paid a sum of Rs. 61,849.59 as on 16th August, 1978

and without considering the above payments made by the Petitioner, the first Respondent, namely the Tamil Nadu Theatre Corporation Ltd.,

Madras, issued a recovery order in No. 36/43 T.T.C./76, dated 27th May, 1976, on 29th July, 1978 for a sum of Rs. 89,966,54; as per the

above order of the first Respondent, the Petitioner is in arrears of Rs. 89,966.54 on 7th August, 1978; whereas the second Respondent herein

issued a notice for revenue recovery proceedings on 30th August, 1978 for Rs. 1,18,618,79; it is contrary to the order of the first Respondent

herein and the proceedings seem to be arbitrary and high-handed and also it shows the carelessness of the first Respondent herein. In support of

this claim the Petitioner has filed a copy of the communication of the first Respondent, dated 29th July, 1978 as well as a copy of the notice issued

by the second Respondent on 6th September, 1978. Notwithstanding this specific allegations contained in the affidavit filed in support of the writ

petition, the first Respondent in its counter-affidavit has not explained as to how it came to demand a sum of Rs. 89,966,54 as on 7th August,

1978 by its, communication dated 29th July, 1978, while the Tahsildar, by his notice dated 30th August, 1978 has demanded a sum of Rs.

1,18,618,79. To crown all, the notice, dated 30th August, 1978 states that a sum of Rs. 1,18,618,79 was payable for fasli 1387, that is the year

ending with 30th June, 1978. If the amount due as on 7th August, 1978 was only Rs. 89,966,54 as mentioned in the letter of the first Respondent,

dated 29th July, 1978, how the Tahsildar could demand on 30th August, 1978 a payment of Rs. 1,18,618,79, being the amount due from the

Petitioner to the first Respondent for the year ending with 30th June, 1978, passes one''s comprehension. Having regard to these features present

in this case, we have no hesitation in holding that the resort to the proceedings under the Revenue Recovery Act for the recovery of the amount

allowed to be due by the Petitioner to the first Respondent herein cannot be justified. In a decision of this Court in P.A. Aliyar Saheb v.

Independent Dy. Tahsildar, Pallipattu (1973) 88 L.W. 383 which, in our opinion, directly applies to the present case, the Court pointed out that

before resort to Revenue Recovery Act is had, there must be a preliminary determination of the amount due from a citizen after taking into account

any dispute that the citizen may raise with reference to the amount payable by him. This Court observed in paragraph 43 of the judgment:

Therefore, in my opinion, the result of the above decision is that in a case where the amount is recoverable only as. ""sum due to the state

Government"" falling within the scope of Section 52 of the Revenue Recovery Act and where a person from whom the said amount is sought to be

recovered disputes either the existence of his liability or the extent of his liability, before resort to the provisions of the Revenue Recovery Act can

be had, there must be an enquiry by the State in which the alleged defaulter is entitled to participate and wherein the basis of the liability as well as

the amount claimed by the State must be made known to the alleged defaulter, who is given an opportunity to place all the materials and

circumstances which, in his opinion, go to exclude or climainate his liability itself or to reduce the liability, and a determination based on such

enquiry should be arrived at with reference to the existence or the extent of the liability of the defaulter.

Again in paragraph 46 of the judgment, the Court observed:

I may also point out that the determination and adjudication which I contemplate as a preliminary to invocation of the provisions of the Revenue

Recovery Act cannot take the place of an adjudication or determination in a court of law which can be had either by the State itself filing a suit in a

Civil Court instead of having recourse to the provisions of the Revenue Recovery Act or by the citizen himself instituting a suit to question the

action of the State under the provisions of the Revenue Recovery Act. The determination and adjudication contemplated by me above is more or

less on the nature of preliminary ascertainment of the existence or extent for the liability of a citizen, as a condition precedent to invocation of the

provisions of the Revenue Recovery Act. To hold that such a determination and adjudication should be a substitute for an adjudication and

determination by a regularly constituted civil court will be to take away the rights of an aggrieved citizen to question the action of the State under

the Act in a Civil Court. Equally to insist that the State should venture upon such adjudication and determination as, if it were in the nature of a

regular trial in a Civil Court will tend to defeat the very object of the Revenue Recovery Act and set at naught the provisions of the said Act.

The State accepted that judgment and proceeded again pursuant to the orders of this Court. In our opinion, that judgment correctly lays down

the principles to be applied before resort to the provisions of the Revenue Recovery Act can be had. What the Court observed in that case in

respect of Section 52 of the Revenue Recovery Act applies to Section 52-A also, because the fundamental principle laid down in that judgment is

common. Having regard to these features, we are clearly of the opinion that the amount payable by the Petitioner herein has not been determined

after taking into account the earlier communication sent by the first Respondent itself, and the stand taken by the Petitioner prima facie appears to

be correct. Consequently, the writ petition is allowed and the impugned notice, dated 30th August, 1978 issued by the second Respondent is

quashed. The allowing of this writ petition will not prevent the Respondents from proceeding afresh under law if they are so advised. There will be

no order as to costs.