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1997 Supreme(AP) 32
Andhra Pradesh High Court
Judges : K.S.SHRIVASTAVA
Mandela Nagasurya Ranga Rao, Palacole - Appellant
Versus
Excise Superintendent, West Godavari at Eluru - Respondent
Decided On : 01-22-97
Headnote:
Constitution of India, 1950 - Article 226 – Andhra Pradesh Excise act, 1968 - Section 65 – Lease of Right to sell Arrack in Retail Rules, 1988 - Suspended – Quashed - petitioner also deposited the necessary amounts after acceptance his bid as per Andhra Pradesh Excise Lease of Right to sell Arrack in Retail Rules - Therefore licences were issued to him for carrying on business by paying privilege fees and issue prices etc - petitioner has also given an undertaking in Form counterpart agreement at time of obtaining licences wherein it has been mentioned licensing authority shall redispose shops in case petitioner fails pay in time privilege fee issue fee arrack or other dues in manner as specified arrack rules allegation that when petitioner did not pay monthly privilege fee of shops question two equal installments even after service of show-cause notice–Held, State Government which is one of categories of amounts that can recovered Revenue recovery Act sum due to Government is an amount ascertained by appropriate authority of Government or by Court as case may be expression due necessarily implies legal liability - Before legal liability is fastened to any particular individual he must be given due opportunity to meet case of Government that particular amount was owed by him to the Government - Otherwise one sided or arbitrary determination amount cannot lead conclusion there is legal liability fastened to the particular person position of law as emerges from principle laid down case supra is that Officer or authority who is empowered to determine the amount should fix all sums due to State Government after giving adequate opportunity to the person concerned and when done sum becomes due State Government and it has to be recovered arrears of land revenue petitioner has specifically pleaded in para petition that the respondent had not issued any notice before determining alleged amount due to them - Excise Authorities did not give any particulars in arriving at said figure - Therefore it cannot be said that he owes an amount - Excise Authorities - It is pertinent to note that in corresponding para of counter or in any other para of counter respondents have not alleged that before arriving at the resultant loss notice was given to the petitioner or he was heard in defence - Because no opportunity was given to the petitioner before fixation resultant loss Arrack Rules recovery appears to be bad as cannot be said that was sum due to the State Government - Petition allowed
( 1 ) IN this Writ Petition under Article 226 of the Constitution of India the petitioner assails the attachment order dated 29-05-1989 issued by the third respondent for the recovery of Rs. 6,37,902-60 being the excise arrears for the year 1988-89 on the ground that recovery is illegal and arbitrary.
( 2 ) THE facts of the case, in brief, are that the petitioner was the successful bidder for Achugatlapalem, Pedapeta and Penumadam road arrack shops in the auction held in the year 1988. The petitioner also deposited the necessary amounts after acceptance of his bid as per the A. P. Excise (Lease of Right to sell Arrack in Retail) Rules, 1988. Therefore, licences were issued to him for carrying on the business by paying the privilege fees and issue prices etc. The petitioner has also given an undertaking in Form-IV counterpart agreement at the time of obtaining licences wherein it has been mentioned that the licensing authority shall redispose the shops in case the petitioner fails to pay in time the privilege fee, issue fee of arrack or other dues in the manner as specified in arrack rules. The allegation that when the petitioner did not pay the monthly privilege fee of the shops in question in two equal instalments even after service of a show-cause notice, the licence was cancelled under rule 20 of the A. P. Excise Rules. Thereafter, the arrack shops were taken back from the petitioner and they were resold on 2-4-1989 by auction. The respondent Nos. 2 and 3 calculated the resultant loss at Rs. 6,37, 902-60 as per the Rule 22 (3) of the Arrack Rules and the Collector of Excise, West godavari, Eluru, wrote to the concerned Mandal Revenue Officer to recover the said loss and the Mandal Revenue Officer, Palakol, attached the property of the petitioner.
( 3 ) THE petitioner alleges that the auction held on 02-04-1989 was not in accordance with the Rules, because no proper publicity was given and low bids were accepted and therefore, he is not liable for the resultant loss. The respondent did not issue any notice before determining the alleged resultant loss to be recovered from him and therefore the attachment order is illegal and arbitrary, particularly because the Excise Authorities have not given any particulars in arriving the figure of Rs. 6,37,902-60 towards excise arrears.
( 4 ) THE Respondents through the counter have denied the claim of the petitioner. They have alleged that the petitioner had deliberately not paid the privilege fees for the months of December, 1988 and January, 1989 in spite of the demand and show-cause notice and therefore, the three shop s were auctioned after wide publicity and the bids of the highest bidders were accepted. The resultant loss, rightly calculated at Rs. 6,37,902-60, has to be recovered by the concerned Mandal Revenue Officer. The properties of the petitioner were attached strictly in accordance with Section 65 of A. P. Excise act, 1968 andas such, the petitioner cannot question the action of the concerned mandal Revenue Officer, Palakol, in attaching the property. The petitioner was well aware that the quantification had been done while taking into consideration the annual issue price and the privilege fee thereon after deducting the amounts in deposit and the amounts fetched in the re-auction, and it is open for him to show as to how the quantification was incorrect, and under these circumstances, the Writ Petition deserves to be dismissed.
( 5 ) RULE 20 (2) of the Excise Rules provides that in case of default of the first or second instalment of the monthly privilege fee, the licence shall be liable to be suspended or cancelled after giving an opportunity to the holder thereof on making his representation within seven days against the action proposed. There is the specific allegation in the counter that the show-cause notice was issued to the petitioner before cancelling his licence on the ground that he has committed default in making both the instalments of priv
