D. Venkateshwara Rao vs Collector and Others

Syed Shah Mohd. Quadri, J.—The petitioner challenges the validity of the notice of attachment dated 27-10-1988 issued under the Revenue Recovery Act by the second respondent, the Mandal Revenue Officer, Nizamabad as being illegal and arbitrary.

The petitioner is a dealer in food grains and turmeric. He is carrying on the business in Nizamabad. The third respondent - the A.P. Civil Supplies Corporation invited tenders from transport contractors for transporting, storing and handling of edible oil in the Medak District for the period commencing from 29-5-1981 till the end of December, 1982. The agreement was entered into on 29-5-1981. In connection with the transporting of the edible oil, certain disputes arose between the petitioner and the third respondent. Whereas the petitioner claims that a sum of Rs. 1,30,000/- is payable to him by the third respondent, the third respondent claimed that a sum of Rs. 14,12,511.10 ps. was payable by the petitioner to it. For recovery of the aforesaid amount, the third respondent filed O.S.No. 71 of 1984 on the file of the Court of Subordinate Judge, Medak at Sangareddy. While so, the third respondent wrote to respondents 1 and 2 for initiating proceedings under the A.P. Revenue Recovery Act (for short ''the Act'') for recovery of the amount of Rs. 14,12,511.10 ps. Pursuant to the above requisition, the impugned notice is issued.

No counter affidavit is filed.

Sri M. Chandrasekhar Rao, the learned Counsel for the petitioner, submits that u/s 52-A of the Act, no notification has been issued including the third respondent as one of the public bodies whose arrears could be recovered under the said Act. He further contends that the amount in demand is not an ascertained sum, therefore, the impugned notice has to be quashed.

The learned Standing Counsel for the third respondent submits that u/s 52-A of the Act, notification has been issued and therefore the amount due to the third respondent can be recovered by having recourse to the provisions of the Act. The learned Standing Counsel argues that the suit has been decreed and therefore, the amount has become ascertained amount and can be recovered by the impugned proceedings.

The point that arises for consideration on the above contentions raised by the learned Counsel, is:

Whether the arrears due to the third respondent can be recovered by resorting to the provisions of the A.P. Revenue Recovery Act.

Section 52-A of the Act provides for recovery of sums due to certain banks and other public bodies as arrears of land revenue. The said provision, in so far as it is relevant for our purpose, is in the following terms;

"52-A. (1) Recovery of sums due to certain banks and other public bodies as arrears of land revenue:-

Without prejudice to any other mode of recovery which is being taken or may be taken, all loans granted and all advances made to any person-

(i) by any bank to which the repayment of the said loans and advances is guaranteed by the State Government or;

(ii) by such Corporation established by or under a Central, Provincial or State Act, or Government Company as defined in Section 617 of the Companies Act, 1956, or such other public body as may be notified in this behalf by the State Government in the Andhra Pradesh Gazette; together with interest on such loans and advances and all sums, such

as rents, margin money and the like, due to the bodies mentioned aforesaid may be recovered in the same manner as arrears of land revenue under the provisions of this Act:

Provided that the State Government may, by notification in Andhra Pradesh Gazette, specify the loans and advances together with interest thereon, and other sum due to the bodies mentioned in item (ii) above which may be recoverable under the provisions of this Section."

A perusal of the provision, extracted above, makes it clear that all loans granted and advances made to any person by a bank to which the repayment of the said loans and advances is guaranteed by the State Government, can be recovered under clause (i) of sub-section (1) of Section 52-A. Further, loans granted and advances made to any person by such Corporation established by or under a Central, Provincial or State Act or Government Company as defined in Section 617 of the Companies Act, 1956 or such other public body as may be notified in this behalf by the State Government in the Andhra Pradesh Gazette can be recovered under clause (ii) of sub-dection (1) of Section 52-A. The proviso to sub-section (1) further says that the State Government may, by notification in the Andhra Pradesh Gazette, specify the loans and advances together with interest thereon and other sums due to the bodies mentioned in clause (ii) above which may be recovered under the provisions of the Act. Thus, under sub-section (1) of Section 52-A of the Act, all loans granted and advances made to any person by banks to which the repayment of the said loans and advances is guaranteed by the State Government, by such Corporation established by or under the Central, Provincial or State Act or Government Company as defined in Section 617 of the Companies Act or such other public body as may be notified in this behalf by the State Government and such loans and advances and all sums due to the bodies mentioned in clause (ii) of Section 52-A, can be recovered in the same manner as arrears of land revenue.

The Governor of Andhra Pradesh under proviso to sub-section (1) of Section 52-A issued the following notification:

REVENUE (N) DEPARTMENT

G.O.Ms.No. 261

Dated 17-3-1987

Read the following:-

(1) From CLR''s Lr.No. TT2/1264/86 dt.15-4-86

(2) From CLR''s Lr.No. TT2/2784/86 dt.05-9-86

(3) From Commr.of Civil Supplies Ref.No. PDS/4/2957/86, dated 13-10-1986.

ORDER:

The notification appended to this order shall be published in the next issue of the A.P. Gazette.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)

Sd/-

Secretary to Government.

NOTIFICATION

In exercise of the powers conferred by the proviso to sub-section (1) of Section 52-A of the Andhra Pradesh Revenue Recovery Act, 1864 (Act II of 1864) the Governor of Andhra Pradesh hereby specifies that all sums due to the Andhra Pradesh State Essential Commodities Corporation Limited and the Andhra Pradesh State Civil Supplies Corporation Limited from the stockists of Fair Price Shop Dealers or any other person or agency, may be recovered in the same manner as arrears of land revenue.

Sd/-

Secretary to Government."

In view of the above notification, the sum due to the 3rd respondent can be recovered under the provisions of the A.P. Revenue Recovery Act.

For the purpose of having recourse to the said provision of the Act, the amount to be recovered must be an ascertained sum. This is a settled position of law. From the fact that the 3rd respondent filed O.S.No. 71 of 1984 on the file of the Court of Subordinate Judge, Medak at Sangareddy for rendition of account by the petitioner, it can reasonably be inferred that the amount sought to be recovered was not an ascertained sum as on the date of the impugned notice. The facts that a preliminary decree was subsequently passed and that an application to set aside that decree was dismissed cannot be taken as implying that on the date of the impugned notice the amount mentioned in the impugned notice is an ascertained sum. For this reason, the amount mentioned in the notice could not be permitted to be recovered under the provisions of the Act. Therefore, the impugned notice is liable to the quashed and accordingly it is quashed. We make it clear that this order does not preclude the third respondent from taking any action in future for recovery of the amount due by the petitioner in accordance with law.

The writ petition is accordingly allowed. No costs.