HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.513 of 2003 JUDGMENT (Per the Hon’ble Sri Justice A. Gopal Reddy): This writ appeal under Clause 15 of the Letters Patent is filed against the order dated 07.02.2003 passed by a learned Single Judge of this Court dismissing W.P.No.15693 of 2001 filed by the appellant/writ petitioner questioning the notice issued by the fourth respondent-Mandal Revenue Officer, Nakkapalli in R.C.No.335/99/C, dated 26.06.2001, for recovery of a sum of Rs.34,966-87 ps. under the provisions of the Andhra Pradesh Revenue Recovery Act, 1864 (for short ‘the Revenue Recovery Act’). The facts, which are not in dispute, are briefly stated as under: The appellant/writ petitioner was granted licence for sale of arrack by the third respondent-Excise Superintendent, Kakinada for the excise year 1970-71 commencing from 01.10.1970 to 30.09.1971 in respect of six shops at Tuni and one shop at S.Annavaram. Since the petitioner failed to lift 13,200 litres of arrack in respect of Tuni Group of Shops and 1,400 litres in respect of S.Annavaram shop, the Excise Superintendent, Kakinda issued a notice vide R.C.No.3837/78- B6 dated 04.09.1978 and 18.10.1978 for repayment of an amount of Rs.33,861-35 ps. The petitioner submitted reply for the said notice through his counsel on 30.10.1978 bringing to the notice of the Excise Superintendent with regard to the decision rendered by the Larger Bench of this Court in A.Brahmanandam v. Tahsildar[1] invalidating Rule 15 of the Andhra Pradesh Excise (Arrack Retail Vend Special Conditions of Licences) Rules, 1969 (for short ‘the Rules’). He also requested for refund of the amount of Rs.24,456-13 ps. Though no follow up action was taken by the respondents pursuant to the notice dated 04.09.1978 and 18.10.1978, the fourth respondent through the notice impugned in the writ petition called upon the petitioner to pay Rs.34,966-87 ps. Questioning the same, the petitioner filed the present writ petition contending that once Rule 15 of the Rules has been declared invalid, recovery of amount for the unlifted arrack is impermissible; that the impugned notice is without any authority of law and also barred by limitation. Further, it was stated that the petitioner earlier filed W.P.No.4372 of 1971 against the collection of amount under Rule 15 of the Rules and this Court stayed the recovery proceedings in W.P.M.P.No.6879 of 1971 by order dated 01.11.1971. Subsequently, the said writ petition was allowed declaring Rule 15 of the Rules as invalid, in view of the orders of the Larger Bench of this Court in Brahmanandam’s case (1 supra). It is further stated that Section 52-A and Section 52-B were inserted in the Revenue Recovery Act by way of Amending Act 18/77 and the same will have only prospective operation and not retrospective, and therefore, recovery proceedings are liable to be set aside. In the counter-affidavit filed by respondents 1 to 3, while refuting the averments made by the petitioner, it is stated that the petitioner deposited the amount on the minimum guaranteed quantity of arrack as per the licence conditions and failed to lift the total quantity of 14,600 litres nor paid the issue price for the said unlifted quantities, and therefore, the petitioner became an excise defaulter. Hence, his request for refund of Rs.26,375/-, which was deposited at the time of obtaining licence, does not arise and that the deposit will be refunded only if the licencee pays all the dues to the Government as per licence conditions. After the judgment of the Larger Bench of this Court in Brahmanandam’s case (1 supra) permitting the Excise Authority to levy and collect cost price only on un-drawn quantity of arrack but not the issue price, the Andhra Pradesh Excise Act, 1968 (for short ‘the Excise Act’) was amended through Act 10 of 1984 giving effect to Sections 17 and 23 of the Excise Act retrospectively, according to which, issue price together with the excise duty is collectable on un-drawn quantity of arrack, both before and after 1984 i.e., right from 1960-70 and no appeal lies in this regard. It is further stated that W.P.No.2535 of 1972 filed by the petitioner along with 24 others was dismissed on 02.04.1974 holding that Excise Officials are entitled to collect the cost of the un-lifted arrack. The learned Single Judge of this Court, after considering the submissions made on behalf of the petitioner as well as the respondents, by the impugned order dated 07.02.2003 dismissed the present writ petition holding that at no point of time, the amount claimed ceased to be “the amount due”, since the Supreme Court in State of A.P v. Y.Prabhakar Reddy[2] reversed the judgment of the Larger Bench of this Court in Brahmanandam’s case (1 supra), and therefore, the law laid down by the Supreme Court is applicable with reference to recovery of amounts from such institutions, whose amounts due were made recoverable as per Section 52-A of the Revenue Recovery Act and that the right of the State under the Revenue Recovery Act cannot be defeated resorting to law of limitation especially when at the instance of the petitioner, the litigation has been pending in the Courts for about 17 years. Hence, this writ appeal. Sri A.Satya Prasad, learned Senior Counsel appearing for the appellant, made the following submissions: i. Initially a demand notice was issued in the year 1978, for which a reply notice has been sent by the appellant denying the liability and also requesting for refund of amount paid in advance and that though no further action has been taken on the said notice, the notice impugned in the writ petition was issued after 23 years, which is barred by limitation. In support of the said contention, he placed reliance upon a judgment of the Supreme Court in State of Kerala v. V.R.Kalliyanikutty[3]. ii. On declaring Rule 15 of the Rules as invalid, Section 52-A and Section 52-B were inserted in the Revenue Recovery Act by amendment Act 18/77 with prospective effect, and therefore, the decision of the Supreme Court in Y.Prabhakar Reddy’s case (2 supra) cannot be taken to revive the time barred debt. iii. In the absence of any period of limitation prescribed under the Excise Act, the limitation prescribed under the Limitation Act, 1963 cannot be made applicable to recover the amounts, and therefore, the respondents cannot recover the amount under the Revenue Recovery Act. On the other hand, the learned Advocate General contends that under Section 65 of the Excise Act, all arrears of money due to the Government including the excise revenue as well as the 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, or the amounts due to the Government by any person on account of any contract relating to the excise revenue, can be recovered as if they were arrears of land revenue. He also contends that Section 52 of the Revenue Recovery Act authorizes recovery of arrears of revenue other than the land revenue due to the State Government. He further contends that Section 52-A and Section 52-B does not apply to recovery of the dues to the Government, but it applies to the recovery of amounts due to certain banks and other public bodies notified in that behalf by the State Government. Before adverting to the rival submissions, it is pertinent to notice the statutory provision, which deals with the recovery of the amount. Section 65 of the Excise Act reads as under: “Recovery of Government due:- (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 may be recovered from the person primarily liable to pay the same or from his surety, as if they were arrears of land revenue.” Section 52 of the Revenue Recovery Act reads as under: "52. Similar Process in case of other species of Revenue, Advances, Fees, Cesses, etc :--All arrears of revenue other than land revenue due to the State Government, all advances made by the State Government for cultivation or other purposes connected with the revenue, and all fees or other dues payable by any person to or on behalf of the village servants employed in revenue or police duties, and all cesses lawfully imposed upon land and all sums due to the State Government including compensation for any loss or damage sustained by them in consequence of a breach of contract, maybe recovered in the same manner as arrears of land revenue under the provisions of this Act, unless the recovery thereof shall have been or may hereafter be otherwise specially provided for." In Y. Prabhakara Reddy’s case (2 supra), the Supreme Court, while dealing with the question which fell for consideration before it as to whether under the Excise Law prevailing in the State of Andhra Pradesh, the Government is entitled to claim from the Excise Contractors, who have failed to lift the ‘Minimum Guaranteed Quantity of liquor, the amount said to represent the excise duty component’ in the issue price of liquor relating to such unlifted quantity of liquor, and the amendments effected to Sections 17 and 23 of the Excise Act pursuant to the judgment of the Larger Bench of this Court in Brahmanandam’s case (1 supra), held as under: “The result of our discussion is that even prior to the 1984 amendment, the amount which each of the contractors was required to pay or have adjusted was not excise duty on undrawn liquor, but was part of the price which he had agreed to pay for the grant of the privilege to sell liquor. The judgment of the High Court of Andhra Pradesh in Atluri Brahmanandam v. Tahsildar of Gannnvaram (supra) is reversed. The appeals filed by the State of Andhra Pradesh are allowed.” Further, the Supreme Court, after considering the submissions that the amending Act did not effectually remove the vices or defects pointed out by the Full Bench in Brahmanandam's case (supra) as Sections 21 and 22 were left in tact, held as under: “We are, therefore, satisfied that the amendments effected to secs. 17 and 23 have fulfilled the object of removing the vices or defects pointed out by the Full Bench in Atluri Brahmanandam's case, if indeed there were defects or vices. In the result, the petitions for special leave to appeal filed against the judgments of the Andhra Pradesh High Court upholding the amending Act and the demands made by the excise authorities are dismissed. In view of the above, it is open to the State to recover the prices for which the petitioner had agreed to pay on the unlifted quantity of M.G.Q of arrack. The next question that falls for consideration is whether the impugned notice is barred by limitation, as contended by the learned counsel for the appellant? In V.R.Kalliyanikutty’s case (3 supra), the Government of Kerala issued a notification under Section 71 of the Kerala Revenue Recovery Act, 1968, by which the provisions of the said Act have been made applicable to the recovery of the amounts due from any person to any bank on account of any loan advanced by that bank for agricultural purposes. The Division Bench of the Kerala High Court held that in the absence of any provision in the Kerala Revenue Recovery Act creating a substantive right to recover time-barred debts, the said Act which provides for summary recovery cannot be availed of once the period prescribed for recovery under the Limitation Act, 1963 had expired. The said judgment was followed by another Division Bench of Kerala High Court in its judgment dated 29.01.1988, against which a special leave petition was filed. However, the said decisions of the Division Bench have been overruled by a Full Bench of the Kerala High Court, against which the State of Kerala carried the matter in appeals before the Supreme Court. The question which arose for consideration before the Supreme Court was whether a debt which is barred by the law of limitation can be recovered by resorting to recovery proceedings under the Kerala Revenue Recovery Act of 1968. The Supreme Court, while considering Section 71 of the Kerala Revenue Recovery Act, 1968, which confers power on the Government to declare the Act applicable to any institution, which is parameteria to Section 52-A of the Andhra Pradesh Revenue Recovery Act, where the agricultural loans given by the Bank and the loans given by Kerala Financial Corporation were sought to be recovered under Section 71 of the Kerala Revenue Recovery Act, and while interpreting the word “due” held that Kerala Revenue Recovery Act does not create any new right; that it merely provides a process for speedy recovery of moneys due, and therefore, instead of filing a suit (or an application or petition under any special Act), obtaining a decree and executing it, the bank or the financial institution can now recover the claim under the Kerala Revenue Recovery Act; that since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act; that though the right to enforce debt by judicial process is barred, that right can be exercised in any manner other than by means of a suit and that under Section 71 of the Kerala Revenue Recovery Act claims which are time-barred on the date when a requisition is issued under Section 69(2) of the said Act are not “amounts due” under Section 71 and cannot be recovered under the said Act. It was further held that “our conclusion is based on the interpretation of Section 71 in the light of the provisions of the Kerala Revenue Recovery Act.” Admittedly, in the instant case the amounts that are due to the Government are sought to be recovered under Section 52 of the Revenue Recovery Act, but not under Section 52-A of the Revenue Recovery Act, which authorises the State Government by notification in the Gazette for recovery of the amounts due to the Corporation established by or under a Central Act or State Act and notifying the said Corporation as contemplated under Section 52 of the Revenue Recovery Act for enabling to recover the amount as arrears of land revenue. It is well settled that all rights in regard to manufacture and sale of intoxicants vest in the State and it is open to the State to part with those rights for a consideration which is known as res extra commercium. The consideration for parting with the privilege of the State is neither excise duty nor licence fee but it is the price of the privilege. In the case on hand, the petitioner agreed to pay the price of privilege for lifting Minimum Guaranteed Quota (M.G.Q) of arrack of 53,500 bulk litres at the issue price fixed at Rs.4.07 per bulk litre, but lifted only 38,900 litres of arrack and failed to lift 14,600 bulk litres, which the State Government parted in their favour. Therefore, the State Government can recover the price for the unlifted quantity of arrack, by invoking the power under Section 52 of the Revenue Recovery Act. In R.C.Jall Parsi v. Union of India[4], the Supreme Court held that for a suit described in Article 149 (present is Article 112) a period of limitation of 60 years is prescribed and the period would begin to run as it would “against a like suit by a person”. It was further held that when such a suit is filed by the Central Government, the period of limitation of 60 years should be computed when the right to sue accrues, and that in the said case the right to sue accrued, when the defendant refused to pay the cess when demanded. I n B.C.Mulajkar v. Govt. of Andhra Pradesh[5] a Division Bench of this Court held that the amounts sought to be recovered under Section 52 of the Revenue Recovery Act fall under the expression “all sums due to the State Government”; that the word “due” means that which is owed: What one has a right to: fee, toll charge or tribute; that how much sum is owed by the appellant or what amounts the respondents have a right to recover has first to be arrived at before the same could be recovered as a sum due to the Government; that before the Government could recover the sums due under Section 52 of the Revenue Recovery Act, the appellant should be furnished with the relevant material on which the amount is said to be due, and given an opportunity to make his representations and produce the relevant material to substantiate his representations and thereafter determine the liability; that only on such determination of the liability and the amount due thereunder, the Government can take proceedings under Section 52 of the Revenue Recovery Act for recovering the amount and that in other words the recovery proceedings under Section 52 of the Revenue Recovery Act should be preceded by an anterior determination of the liability and the amount due towards such liability. Similar view was taken by this Court in Govindu Rama Rao v. The Revenue Divisional Officer, Srikakulam[6] , wherein it was held as under: “…………Once an officer or authority who is empowered to determine the amount fixes it, after giving adequate opportunity to the person concerned it becomes due to the State Government. Availability of the remedy of appeal does not alter the legal character of the amount, which has become due. Therefore, once the Revenue Divisional Officer has determined the amount of arrears after notice to the petitioner, the sum has become due to the Government. It was only thereafter that the property was attached and the sale conducted. Section 52 in our opinion does not in any way subscribe to the argument raised by Sri Koka Raghava Rao that the amount does not become due unless and until the highest Appellate Authority finally disposed of the dispute raised by the person concerned.” In the instant case, notice was issued on 04.09.1978 and 18.10.1978 for repayment of amount for the unlifted quantity of arrack and the rental value. The appellant got issued a reply to the said notice on 30.10.1978 denying the liability and bringing to the notice of the third respondent the judgment of the Larger Bench of this Court in Brahmanandam’s case (1 supra). However, the fourth respondent issued the notice dated 26.06.2001 impugned in the writ petition, after the Supreme Court has reversed the judgment of the Larger Bench of this Court. Aggrieved by the same, the petitioner filed the present writ petition on 30.07.2001 and obtained interim stay on 17.08.2001. Since Article 112 of the Limitation Act, 1963 provides 30 years limitation for recovery of the amount due to the Government, the contention advanced by the learned counsel for the appellant that the State Government cannot recover the amount from the appellant as it is barred by limitation, does not merit consideration. In the result, the writ appeal is dismissed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J ______________________ N. RAVI SHANKAR, J Date: ..04..2011 va [1] AIR 1977 AP 196 [2] AIR 1987 SC 933 [3] (1999) 3 Supreme Court Cases 657 [4] AIR 1962 Supreme Court 1281 [5] AIR 1971 ANDHRA PRADESH 163 [6] (1970) 2 An.W.R,360