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S.S. Subramani, J.—In this Writ Petition, the Petitioner has sought the issuance of a writ of certiorari or any other appropriate writ or direction to call for the records on the file of 1st Respondent in his proceedings RCT 5/83116/82 dated 23-10-1982 and the consequent notice of May 1997, and quash the same as illegal and without jurisdiction.
In the affidavit filed in support of the Writ Petition, Petitioner has alleged that he had participated in the auction for arrack shop No. 1, Alasandapuram Village, Vaniyambadi Taluk, North Arcot - Ambedkar District for the excise lease year 1981-82 and he was declared as the highest bidder at Rs. 7,000/- on 2-6-1981. The Excise Officer (Prohibition) received Rs. 1,000/- towards earnest money deposit and a further sum of Rs. 3,500/- on 2-6-1981 drawn on the State Bank of India, Vaniyambadi Branch and a further sum of Rs. 17,500/- was also received towards 2-1/2 months bid on 9-6-1981. In all, Respondent received a sum of Rs. 22,000/- .
It is the case of the Petitioner that in and around the shop, there was illicit distillery and, therefore, selling of arrack by unlicensed villagers was common and so the Petitioner could not continue the business. Therefore, on 1- 8-1981, even before the first consignment of arrack was sent to the Petitioner, he surrendered the licence and did not avail even a drop of arrack thereafter. On 19-12-1981, as per the order of the District Collector, North Arcot-Ambedkar District, Petitioner was informed that he will be made responsible for the loss sustained by the Government for having made it to conduct resale, and he was informed that he is bound to pay a sum of Rs. 31,183/-, after adjusting the amount paid by him. The Petitioner sent a reply and also issued a lawyer''s notice on 12-8-1982 repudiating the contentions of the Respondent, and by the lawyer''s notice, he demanded refund of the earnest money, etc., which he paid to the State which, according to him, was one without consideration. On 23-10-1982, Petitioner was informed by the Tahsildar that a sum of Rs. 29,200/- was due from him as loss to the Government. That was pursuant to the proceedings of the District Collector of the same date wherein the amount due to the Government was assessed after adjusting the amount paid and also after giving due credit to the amount due to the re-auction. Petitioner was again informed on 3-12-1985 that he is bound to pay the loss of the Government. There also, Petitioner was informed about the earlier references. A subsequent notice was also issued on 21-1-1986, again informing the Petitioner about the amount due from him. On 21-6-1989, the Petitioner informed the Collector that he was not informed as to how the loss was ascertained. The claim of the Government was repudiated. On 18-8-1989, Petitioner informed that he was not liable for the so-called loss, and the Petitioner did not hear anything for a long time thereafter and finally in May 1997, Petitioner received a demand for a sum of Rs. 34,270/- and he was also informed that the Government is going to proceed with the same under Revenue Recovery Act. In the various grounds raised in the Writ Petition, it is averred that he made many representations to the Authorities to look into the records before initiating any proceedings, but they were adamant in their attitude. According to him, the demand is vague, and the notice does not contain all the requirements contemplated under the law, and the property cannot be brought to sale under the Revenue Recovery Act. It is also said that after the resale in favour of Rajan, there was also another reduction in favour of one Krishnamurthy, and he is also liable for the loss and, therefore, making the Petitioner alone liable for the so-called loss to the Government is arbitrary and cannot be supported. The Petitioner, therefore, prays for quashing the entire proceedings as one without jurisdiction.
When the matter came up for admission, I asked the counsel why there is a delay of more than 15 years in filing the Writ Petition, when the original demand after fixing liability itself was made on 19.12.1981 which was followed by an order of the District Collector on 23.10.1982 informing the Petitioner that the Government has sustained a loss of Rs. 29,200/- after adjusting all the amounts paid by the Petitioner and also the amount realised through re-auction. I also pointed out to the counsel that even on 12.8.1982, Petitioner has sent a legal notice informing the Government about the breach on their part and also questioning the notice issued by the Government and whether he was justified in challenging the recovery notice alone. When this was pointed out, learned Counsel for Petitioner was not in a position to give any reply. I also brought to his notice that in no portion of the affidavit filed in support of the Writ Petition, satisfactory explanation has been given for the long delay. Learned Counsel only argued that the State itself cannot assess the damage and, therefore, earlier notice was one without jurisdiction and, therefore, he is justified in challenging the recovery proceedings and he need not question the earlier orders. The present recovery proceedings pursuant to an order of demand without jurisdiction is, therefore, liable to be quashed. Learned Counsel for Petitioner relied on the decision of the Supreme Court reported in State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, Learned Counsel relied on the following passage:
The powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of conditions and recovery of the damages will stand confined only to those cases where the breach of conditions is admitted or it is not disputed. A fight to adjudicate upon an issue relating to a breach of conditions of the contract does not flow from nor is inhered in the right conferred to assess the damages arising from a breach of conditions. Even assuming that the stipulation in the contract affords scope for being construed as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, adjudication by the officer regarding the breach of the contract cannot be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and enquiry require that where a party to a contract disputes the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract. The position will, however, be different where there is no dispute or there is consensus between the contracting prices regarding the breach of conditions.
After having considered the arguments of learned Counsel, I do not think that the Petitioner is right in his submission.
In a very recent decision of the Supreme Court reported in AIR 1995 SCW 3116 (State of Maharashtra v. Digambar), in paragraph 12 of the judgment, their Lordships considered how far the Writ jurisdiction of the High Court under Article 226 could be invoked when there is inordinate delay on the part of the Petitioner. It reads thus:
How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking Writ jurisdiction of the High Court under Article 226 of the Constitution even though he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretion against a State, could be relieved of his obligation to establish his unblame won by conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought for under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right was wholly justified in the facts and circumstances, instead of ignoring the same, or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution be they citizens or otherwise, cannot get discretionary relief obtained thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches and undue delay on their part in approaching the Court for grant of discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief was granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
In Shri Vallabh Glass Works Ltd. and Another Vs. Union of India (UOI) and Others, , their Lordships said that even though there is a limitation prescribed by law, Petitioner can invoke the jurisdiction under Article 226, and, if there is undue delay, the Court should be slow in helping such Petitioners. Their Lordships held in that case thus:
There is no period of limitation prescribed by law in respect of petitions filed under Article 226. Whether relief should be granted to a Petitioner under Article 226 where the cause of action had arisen in the remote past is a matter of sound judicial discretion governeed by the doctrine of laches. Where a Petitioner who could have availed of the alternative by way of suit approaches the High Court under Article 226, it is appropriate ordinarily to construe any unexplained delay in the filing of the Writ Petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable.
In M.K. Krishnaswamy, etc. Vs. The Union of India (UOI) and Another, their Lordships said that ''Even for a suit, the cause of actum, if any, would have arisen in 1950 and the suit would have been hopelessly time-barred in 1963 when the Petitioners were filed. The plea that they came to know about certain facts in 1962 would have been of no avail in such a suit. We do not, therefore, think that these are fit cases for interference by this Court, nearly 22 years after the alleged cause of action had arisen. The appeals are, therefore, ''dismissed''. Their Lordships considered this question, taking into consideration the time fixed under the Limitation Act. If a suit is barred, on the same cause of action, a writ proceedings which is intended for immediate relief cannot be entertained in spite of the fact that there is no period of limitation for invoking writ jurisdiction.
In this case, as I said earlier, there is no explanation at all anywhere in the affidavit as to why the Petitioner did not take any action even though the demand was made in the year 1982. The Petitioner is now attacking the entire proceedings only when recovery proceedings are initiated. Section 80 Notice was also issued in the year 1982. So, the cause of action, even according to the Writ Petitioner, has arisen long before that date.
As I said already, the only ground that is submitted by learned Counsel was on the basis of the decision reported in State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, and I do not think the said decision will have any application to the facts of this case. The Petitioner has not filed the agreement to contend that the State has no jurisdiction to ascertain the loss sustained by it. In this case, there is no question of any dispute. The notional loss was ascertained on the basis of materials already before the Government and which the Petitioner was also made known. The total amount payable by him, according to his own Writ Petition is Rs. 80,000/- per annum. He has paid Rs. 22,000/- in all. The Petitioner was informed that by resale, it could receive only a sum of Rs. 32,800/-. That was also adjusted. After adjusting these amounts and also the amounts paid by the Petitioner, the sum payable by the Petitioner was arrived at. It is not the case of the Petitioner that by resale, any further amount was received by the Government or that the re-auction was for any further amount. It is only an arithmetical calculation that is required, and not to resolve any dispute. So, the decision reported in State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, may not have any application to the facts of this case, especially when the Petitioner has not filed the agreement executed by him in favour of the Government. Under the Tamil Nadu Prohibition Act, Petitioner is liable for the loss and the right of the Government to recover the amount due to it under the Revenue Recovery Act is not disputed. As I said, the only contention that was raised was, the jurisdiction of the Government in arriving at the figure. The earlier order of the Collector in fixing the liability is not invalid order, as contended and when the same has become final, under the guise of questioning the recovery proceedings, he cannot challenge the earlier order passed more than 15 years ago.
Learned Counsel for the Petitioner also relied on the judgment of Ismail, J. (as he then was), in P.A. Aiyer Saheb and 288 Ors. v. Independent by Tahsildar, Pallipattu, Chingleput and Ors. in W.P. Nos. 495/72 etc., (order dated 22-11-1973), to contend that without giving reasonable opportunity, revenue recovery proceedings should not be initiated. According to me, the said contention also may not apply to the facts of the case. Paragraphs 64 and 65 of the said case are relevant in this regard. They read thus:
The Petitioners may be right or may be wrong on the facts alleged by them or on the inferences sought to be drawn by them from the said facts. But, it cannot be denied that they have a bearing on the question whether the Petitioners are liable at all, and if liable, in what amount. Without considering these objections of the Petitioners, after giving an opportunity to them to substantiate their respective contentions and arriving at a conclusion as to whether the Petitioners are liable at all, and if so, in what amount, based on materials produced by the State as well as the persons concerned. It will not be appropriate on the part of the State to proceed to recover any amount from the Petitioners under Revenue Recovery Act. Such an enquiry and determination are necessary from the very nature of the case and the nature of the controversy as well as from the basic requirement of the Principles of Natural Justice, namely, that no person should be visited with any penalty or forfeiture without his being given an opportunity to plead and put forward his case against such penalty or forfeiture. I reiterate that such determination is necessary only in cases where there is scope for reasonable dispute or doubt, and not where the existence or the extent of the liability has already been determined or agreed to or obvious or patent. Such a determination even in cases of reasonable dispute or doubt is one arrived at, in an enquiry in the nature of a preliminary investigation, constituting a condition precedent to the invocation of the provisions of the Revenue Recovery Act and is not a substitute for a judicial adjudication and determination by a Civil Court, either at the instance of the State as an alternative to the proceedings under the Revenue Recovery Act or at the instance of the affected party questioning the action taken by the State under the Revenue Recovery Act.
Consequently, all these Writ Petitions are allowed. In each one of them, there will be a direction to the Respondents not to proceed with the recovery of the amounts alleged to be due from the Petitioners under the provisions of the Revenue Recovery Act, 1864, without first holding an enquiry, after communicating to the Petitioners concerned the particulars of the amount claimed from them and how the same is arrived at, and giving them an opportunity to place all the materials in their possession to substantiate their case, if they dispute either their liability or the extent of their liability and considering the materials so placed and ascertaining the amount due from them on the basis of such enquiry....
In this case, I do not think there is any reasonable dispute or doubt, and even if there is any, the Respondents have given the details how they have arrived at the amount even in the year 1982 itself. Till the Writ Petition was filed, the quantum was not disputed. Hence the aforesaid decision may not help the Petitioner in any way.
According to me, the present contention is also only an afterthought, because, in the suit notice dated 12.8.1982, he never disputed either the right of the Government or the quantification made by it. Even on 16.10.1982, Petitioner was informed that he is not entitled to any right on the basis of Section 80 Notice. Even in his reply dated 21.6.1989, to the subsequent demand, Petitioner did not dispute the quantum, but only said that he is not liable to pay the amount. Under the above circumstances, it is too late on the part of the Petitioner now to contend that the Government is not entitled to recover the amount under the Revenue Recovery Act. The contention that the assessment was one without jurisdiction cannot be accepted. When the order of the Collector has become final even in the year 1982, he cannot at this stage challenge the recovery proceedings. Consequently, I hold that the Writ Petition is without any merits and accordingly, I dismiss the same. No costs. WMP. No. 21426 of 1997 is also dismissed consequently.