IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8701 of 2009 Between: N. Vijay Kumar ..... Petitioner AND The Commissioner of Prohibition & Excise Government of A.P., Hyderabad & others. .....Respondents Counsel for the petitioner: Smt. G. Jyothi Kiran Counsel for the respondents: AGP for Prohibition & Excise The Court made the following: THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8701 of 2009 ORDER: At the interlocutory stage, this Writ Petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. This Writ Petition is filed for a Mandamus to set aside distraint order dated 03.12.2008 of respondent No.2 for payment of Rs.18,61,705/-. The petitioner has filed his tender in respect of shop notified in the Gazette at Sl.No.47, Ward Nos.17 and 10 by remitting the required EMD amount. He has offered a sum of Rs.65,18,009/- against the upset price of Rs.37,26,020=70. The auction was confirmed in favour of the petitioner and as the petitioner failed to pay the required amount within the stipulated time, the shop was allotted to the next highest tenderer. The respondents sought to recover the resultant loss of Rs.20,48,010/- and after adjustment of EMD, the respondents have passed an order for recovery of Rs.18,61,705/- including interest. As the said amount was not paid, the impugned distraint order was issued by respondent No.3. It is the pleaded case of the petitioner that no prior determination was made to his knowledge before the impugned distraint order was made. In the counter affidavit filed by respondent No.2, it is inter alia stated that an order determining the petitioner’s liability was passed on 18.06.2008. That the same was sought to be served, the petitioner was not available at his house; that the petitioner’s mother refused to receive the notice and that therefore the order was affixed on the door of the petitioner’s house under a cover of panchanama. A reply affidavit has been filed controverting the above averments contained in the counter affidavit. I have heard the learned counsel for the parties. The only issue, which is contentious in this Writ Petition, is whether the distraint order was preceded by the order of determination of the petitioner’s liability and if so, whether the same has been served on the petitioner. As regards the first part of this issue, having regard to the specific averment contained in the counter affidavit, I have no reason to doubt the plea of the respondents that an order determining the petitioner’s liability has been passed. However, there is a strong dispute as to whether the order was properly served or not. The fact that the order was not served on any person, is not in dispute. Under Section 25 of the A.P. Revenue Recovery Act, 1864, the demand shall be served by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to his authorized agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached. In my opinion, as the order determining the liability casts serious financial liability on the petitioner and in view of the serious dispute between the parties on service of the order, it would be appropriate that an opportunity is given to the petitioner before the respondents proceed further with recovery of the money. The learned Assistant Government Pleader for Prohibition and Excise has offered to serve a copy of order dated 18.06.2008 on the learned counsel for the petitioner. The petitioner is entitled to make appropriate representation before respondent No.2 on order dated 18.06.2008 within a period of three weeks from today. On receipt of such representation, respondent No.2 shall consider the same and act in accordance with the provisions of the Act. Till such time as this process is completed, the respondents shall not proceed with the impugned distraint order. Subject to the above directions, the Writ Petition is disposed of. As a sequel to disposal of the Writ Petition, WPMP No.11395 of 2009 and WVMP.No.1636 of 2009 are disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 26.04.2011 ES