THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION Nos.10420, 13132, 13134, 13143, 13154 & 13159 of 2003 Date: 23.01.2008 W.P.No.10420 of 2003: Between: 1. B.Rahesh and 9 others ……PETITIONER(S) A N D 1. The Mandal Revenue Inspector, Nyalkal Mandal, Medak District and others …… RESPONDENT(S) W.P.No.13132 of 2003: Between: Vasantha ……PETITIONER(S) A N D 1. The District Collector, Medak District at Sangareddy and others …… RESPONDENT(S) W.P.No.13134 of 2003: Between: Sangameshwar ……PETITIONER(S) A N D 1. The District Collector, Medak District at Sangareddy and others …… RESPONDENT(S) W.P.No.13143 of 2003: Between: Smt Lakshmamma ……PETITIONER(S) A N D 1. The District Collector, Medak District and others …… RESPONDENT(S) W.P.No.13154 of 2003: Between: V.Bichanna ……PETITIONER(S) A N D 1. The District Collector, Medak District and others …… RESPONDENT(S) W.P.No.13159 of 2003: Between: Smt P.Balamani @ Balamma ……PETITIONER(S) A N D 1. The District Collector, Medak District and others …… RESPONDENT(S) THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION Nos.10420, 13132, 13134, 13143, 13154 & 13159 of 2003 COMMON ORDER: Petitioners in all these petitions are fair price shop dealers. Alleging that they mis-utilised the stock that was given to them under the ‘Food for Work Programme’, respondents sought to recover the amounts allegedly due from them by taking recourse to the provisions of the A.P. Revenue Recovery Act, 1864 (the Act), and issued notices of attachment to them. Questioning the said notices, petitioners filed these petitions. 2. The contention of the learned counsel for petitioners is that since the petitioners were not given an opportunity of being heard and as no enquiry was conducted and as the petitioners are not made aware as to how the amount demanded from them was arrived at by the authorities concerned and since a Division Bench of this Court in B.C.MULAJKAR V. STATE[1] at page 172 in para-10 held “…… When there are disputes between the alleged debtor and the Government with regard to the liability itself or as to the quantum of said liability it is but proper that the alleged debtor should be furnished with the material or data on which the liability is sought to be fixed. Cases where the amount due is admitted or is determined by a competent authority under a special enactment providing for an enquiry in that behalf, are different and would not present much difficulty. In other cases where no enquiry is at all held and the Government seeks to recover the amount, the question arises whether such a liability could be fastened upon the alleged debtor without first determining the liability and the quantum of the said liability. It is an elementary principle that principles of natural justice require that the person who is sought to be fastened with a liability should first be apprised of the facts on which the liability is sought to be based and he should be given an opportunity to make his representations in that behalf. In our view the expression “sums due” does imply an obligation on the part of the State Government when the liability is disputed, to hold a proper enquiry and furnish the person from whom the amount is sought to be recovered, the full particulars or facts, hold an enquiry, consider the representations and first determine the liability or otherwise for the sum said to be due. ……” and since another Division Bench of this Court in D.VENKATESHWARA RAO vs. COLLECTOR, NIZAMABAD[2] in para-9 held “For the purpose of having recourse to the said provision of the Act, the amount to be recovered must be an ascertained sum. ……” the notices impugned are liable to be set aside or quashed. 3. The contention of the learned Government Pleader is that the contention of the petitioners that no notice is served on them is not true, as notices were served on all the Sarpanchas, other dealers and the petitioners also and as in fact some of the petitioners were present before the enquiry officer and gave statements admitting their liability and basing on their statements and the report of the enquiry officer and the stock that was actually delivered to the petitioners and the stock that was mis-utilised by them and keeping in view the market price of the rice, only the quantum of amount payable by the petitioners was arrived at and so it cannot be said that the petitioners were not given an opportunity of being heard and so the petitioners are not entitled to any relief in these petitions. 4. I have perused the record produced by the learned Government Pleader. The proforma notices issued to all the dealers read as follows: After recording the statements of the Sarpanchas and dealers examined by him, the District Revenue Officer, who was appointed as the Enquiry Officer, through his report dated 06.11.2002 observed “As far as the role of Engineering Staff is concerned, they have not followed any instructions issued in this regard according to the Circular instructions issued vide No.D3/4587/2001, Dated 28.08.2001. The Executing Agencies have been supplied with coupons from District Supplies Office, Sangareddy. The coupons so obtained shall in turn re-allotted to the Field Staff for supplying the same to the labourers to facilitate them to draw rice. As is evident from the records and the version of some of the FP Shop Dealers no coupons have been distributed to the labourers. It is astonishing to note as to how and what basis the rice was distributed to the labourers in the absence of coupons. The Assistant Engineers have not verified distribution of rice on coupons. In entire mandal no where the rice has been distributed on coupons in respect of works executed by MPDO. The Engineering Staff cannot totally disown the responsibility of supervising distribution of rice on coupon to labours. Moreover, the Deputy Executive Engineers concerned have also failed to check and supervise the progress of work, distribution of coupons and distribution of rice to the labourers. As such, the Deputy Executive Engineers and Assistant Engineers are also equally responsible whose callous, negligent attitude led to mis-utilisation of rice in a huge quantity. Thus, they are guilty. Further, the Collector, Medak vide Circular No.D3/4587/2001, Dated 28.08.2001 have instructed the Nodal Officers, Special Officers of the concerned Mandals and Revenue Divisional Officers to make surprise inspection of Fair Price Shops and also visit the works parts and interact with the Field Staff and labourers executing work to ensure proper implementation. The Collector, Medak through D.O.Letter No.D3/6480/2001, Dated:06.03.2002 while quoting the circular instructions issued vide No.D3/4587/2001, Dated:28.08.2001 has observed that the Mandal Revenue Officers are not following the instructions issued with regard to Food for Work Programme and instructed all the Revenue Divisional Officers to supervise the works and to strictly adhere to the instructions. Obviously, neither Nodal Officer, Special Officer nor the Revenue Divisional Officer, Sangareddy seems to have inspected the work at any point of time. I, therefore, request the District Collector, Medak to take necessary action against the concerned for the lapses enumerated above. Regarding involvement of non-officials, I will submit a separate report, as it needs further in-depth enquiry.” and in another report dated 10.03.2003, he stated “The statements given by the F.P. Shop dealers / Sarpanchas etc., are not convincing and does not reflect the ground realities. Thus the complicity of the above individuals in this scandal cannot be ruled out and requires a thorough probe by Police as they are non officials except (2) officials i.e. Sri G.Durga Ram, formerly M.R.I. Nyalkal and presently working as Senior Assistant, Mandal Revenue Officer’s office, Sangareddy and Sri B.Krishna, Asst. Engineer, P.R. Nyalkal. A statement showing the particulars of rice released, quantity lifted and quantity mis-utilized (category-wise/ individual- wise) is submitted herewith. In view of the facts submitted supra, I am of the opinion that this matter may be referred to Police for a thorough probe and to establish the complicity of the individuals. The record of enquiry i.e. Requisition letters, Release Orders, Movement Register of Route Officer, M.B.s, Statements of Sarpanchas / F.P. Shop dealers as per the list is submitted herewith.” So, it is clear that the enquiry conducted by the enquiry officer appointed was not with regard to the sums due from the petitioners but with regard to the question whether there was any mis-utilisation of the stocks or not. Therefore, in my considered opinion, in view of the ratio in B.C.MULAJKAR case (1 supra) the respondents have to conduct an enquiry with regard to the quantum of rice allegedly mis- utilised by each of the Fair Price Shop dealers and arrive at the amount due and payable by them and then only can take recourse to the provisions of the Act for recovery of the amount allegedly due from them. Admittedly, petitioners were not given any notice regarding an enquiry conducted for arriving at the amount allegedly due from them before they were asked to pay the said amounts. Straightaway notices of attachment were issued to them without any prior notice. Therefore, the impugned notices are liable to be quashed. 5. Hence, all the petitions are allowed and the notices impugned in these petitions are quashed. However, respondents are at liberty to hold a fresh enquiry and recover the amount from the petitioners by following the procedure prescribed. The enquiry to be conducted should be confined only to the amount allegedly due from each of the petitioners. No order as to costs. -------------- 23.01.2008 cvrk [1] AIR 1971 AP 169 [2] 1998 (1) ALT 229 (D.B.)