*THE HON'BLE SRI JUSTICE V.V.S.RAO +WRIT PETITION No.24900 of 2005 % Dated 04.11.2008 # Ch. Siddirama Goud … Petitioner VERSUS $ The Prohibition and Excise Superintendent Medak District at Medak and another. … Respondents. ! Counsel for Petitioner: Sri P. Rajasekhar ^Counsel for Respondents: GP for Prohibition and Excise <GIST: >HEAD NOTE: ? Cases referred 1. AIR 1999 SC 1305 2. 2000 (2) ALD 560 3. AIR 1963 AP 110 4. 2002 (4) ALD 93 5. 2003 (6) ALD 250 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 24900 of 2005 Between: Ch.Siddirama Goud S/o. Nara Goud R/o. Masaipet Village, Medak District. ..... PETITIONER AND 1 The Prohibition and Excise Superintendent Medak District at Medak. 2 The Prohibition & Excise Inspector Medak, Medak District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ, Order or direction particulary one in the nature of writ of Mandamus, declaring the proceedings of the respondent for recovery of time barred excise arrears alleged to be due by the petitioner to the tune of Rs.89.198.35 Ps for the period 1989-1990 and the consequential distraint of moveable by an order Dt.3-11- 2005 and the notice of Proclamation of sale of said property through a notice Dt.3-11-2005 without following the procedure is highly arbitrary, illegal, unjust and opposed to the Principles of Natural Justice and contrary to the provisions of A.P. Revenue Recovery Act, 1864 and the provisions of Indian Limitation Act and to pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner:MRP.RAJASEKHAR Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.24900 of 2005 ORDER: The petitioner impugns distraint order dated 03.11.2005 issued by ﬁrst respondent on the ground that the same is contrary to the Andhra Pradesh Revenue Recovery Act, 1864 (RR Act, for brevity) and the Limitation Act, 1963 (Limitation Act, for brevity). By impugned order petitioner was informed that immovable properties like television, chairs, tables were distrained on 03.11.2005. The petitioner was excise contractor engaged in arrack business. He statedly wound up business in 1990 due to naxalites’ threats. Alleging that he is in arrears to the department of excise to a tune of Rs.89,198.35ps, the respondents initiated action under RR Act and issued distraint order under Section 8 thereof. Learned counsel for the petitioner placed reliance o n State of Kerala v V.R. Kalliyanikutty [1] , N.A.Radha and others v State of Andhra Pradesh [2] as well as Raghunandhan v State of Hyderabad [3] and submits that the RR proceedings are barred by limitation. Per contra learned Government Pleader placing reliance on Sections 65 and 70 of the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity) as well as the provisions of RR Act submits that law of limitation does not apply for recovery of excise arrears which are deemed to be arrears of land revenue. He placed reliance on two recent judgments of this Court in Syndicate Bank v Excise Superintendent [4] and K. Raghavender Goud v Prohibition & Excise Superintendent, Hyd [5] . The rival stand of the parties to the case throws up the question whether Limitation Act applies to recovery proceedings initiated by excise oﬃcials under RR Act. In answering this question it is necessary to read Sections 65 and 70 of Excise Act. 65. Recovery of Government dues:- (1) The following moneys, namely:- (a) all excise revenue, (b) any loss that may accrue when, in consequence of default a lease under Section 17 has been taken under management by the Collector, or has been resold by him. (c) amounts due to the Government by any person on account of any contract relating to the excise revenue; and (d) the costs, charges and expenses (including the salaries and allowances of the Prohibition and Excise Oﬃcers) speciﬁed in sub-section (2) of Section 28,m may be recovered from the person primarily liable to pay the same or from his surety, as if they were arrears of land revenue. (2 ) When a lease has been taken under management by the Collector, or has been resold by him, the Collector may recover, in the manner authorized by sub-section (1) any money due to the defaulter by lessee or assignee. (3) Arrears of moneys recoverable under this section shall bear interest at such rate as may be prescribed. 70. Limitation of suits:- No suit shall lie against the Government or against a Prohibition and Excise Oﬃcer, other than a suit by the Government, in respect of anything done or alleged to have been done in pursuance of this Act, unless the suit is instituted within six months from the date of the act complained of. A conspectus of above two provisions is as follows. An excise revenue, loss that may accrue consequent to default of a lessee, amounts due to Government by any person on account of any contract relating to excise revenue, costs, charges and expenses speciﬁed in Section 28(2) of Excise Act can be recovered from the person primarily liable to pay the same as if they were arrears of land revenue. Statute creates a ﬁction and treats all excise revenue dues as arrears of land revenue. Section 70 of Excise Act is to the eﬀect that except it is suit by the Government for recovery of excise arrears no suit shall lie as against Government in respect of anything done pursuant to Excise Act unless it is instituted in six months. This only means that legislature is conscious of the procedure adopted earlier for recovery of excise dues. There cannot be any dispute that 1968 Excise Act is consolidated law which repealed Andhra Pradesh (Andhra Area) Abkari Act, 1886, Andhra Area (Telangana Area) Abkari Act, 1316-F and Andhra Pradesh (Telangana Area) Intoxicating Drugs Act, 1333 F. Even prior to the enactment of 1968 Excise Act, there was procedure under these Acts for recovery of excise arrears/revenue treating them as arrears of land revenue under the provisions of RR Act. Therefore, the submission law of limitation applies to recovery proceedings by the excise department under RR Act, cannot be accepted. In Kalliyanikutty (supra) the question was whether Kerala State Finance Corporation (KSFC) could recover a time barred debt under Section 71 of the Kerala Revenue Recovery Act, 1968, which enabled any Corporation like KSFC to recover ‘amount due’ to them as arrears of land revenue. The Supreme Court interpreted the words ‘amount due’ as amount which can be legally recoverable applying law of limitation. The decision in Kalliyanikutty (supra) was followed in N.A. Radha (supra) in the background of the recovery proceedings initiated by the Andhra Pradesh State Finance Corporation (APSFC). Therefore, these two authorities laid down law to the eﬀect that when the Government of Andhra Pradesh by notiﬁcation enables a statutory/public body to recover ‘amount due’ to them as arrears of land revenue, it must be shown that the amount is legally due and is recoverable within law of limitation. The same is not the case when the ‘amount due’ as excise arrears is recovered. This becomes clear by reference to the provisions under RR Act. Under Section 3 of RR Act every landholder shall pay to the Collector land revenue on or before the day on which it falls due. If the land revenue is not paid as stipulated in Section 3 of RR Act it shall be deemed to be ‘arrears of land revenue’ and the question of such arrears of land revenue ‘being due and payable’ does not arise. The moment land revenue becomes ‘arrears of land revenue’, it shall carry interest at 6% per annum as per Section 6 and the procedure for recovery of arrears of land revenue by sale of movable and immovable property is set in motion. This is provided under Sections 8 to 21 (movable properties) and Sections 22 to 36 (immovable properties) of RR Act. At the cost of repetition it may be mentioned that the moment land revenue is due it is deemed to be arrears of land revenue under Section 4 of RR Act. Irrespective of time, the same can be recovered. In the case of other statutory bodies and public authorities to whom RR Act is made applicable, recovery of money is necessarily for breach of contract and therefore, the public/statutory authority can only recover the amount legally due that is the amount that can be recovered in law as per law of limitation. It is needless to mention that after expiry of period of limitation right to recover shall get extinguished unless the amount due is acknowledged by the borrower. Therefore, the submission of learned counsel for the petitioner cannot be accepted. In Syndicate Bank (supra) this Court was dealing with the case in the context of enforcement of bank guarantee by nationalized bank guaranteeing payment towards privilege fee, minimum guarantee quota and CST charges payable by the department of excise. The trial Court dismissed the suit holding that excise superintendent invoked the bank guarantee within time. The trial Court judgment was conﬁrmed by the District Court. In Second Appeal this Court considered the question as to whether excise department can invoke provisions of RR Act against Syndicate Bank and whether RR Act supercedes the provisions of Limitation Act. The question was answered in favour of excise department holding as under. The RR Act is originally meant to assist the Government oﬃcials for the recovery of the amounts due to the Government. Subsequently, certain amendments were brought to the said Act extending the beneﬁt to the Nationalised Banks and Government Corporations etc. There is no force in the contention of the learned counsel for the bank that the defendant is taking the help of the provisions of Section 52-A. When once the Government is vested with the power, conferred on the Government under the Excise Act, to recover the amount due, it has every right against anybody, including a bank exclusively owned by the Government of India, for recovery of the amount due to it. I n K. Raghavender Goud (supra) this Court, fol l owi ng Syndicate Bank (supra), considered the question and held that no limitation is prescribed in Excise Act for recovery of excise arrears. This Court holds that RR proceedings initiated by the respondents against the petitioner cannot be rendered ineﬀective on ground of limitation. The writ petition is therefore dismissed. No costs. _____________ (V.V.S.RAO, J) 04th November, 2008 Note: LR copy be marked. (B/o) GHN To 1 The Prohibition and Excise Superintendent Medak District at Medak. 2 The Prohibition & Excise Inspector Medak, Medak District. 3 2CCs to GP for Prohibition and Excise 4 2CD copies Form-NIC-OGS/WP{CHP} [1] AIR 1999 SC 1305 [2] 2000 (2) ALD 560 [3] AIR 1963 AP 110 [4] 2002 (4) ALD 93 [5] 2003 (6) ALD 250