Allowed

Smt. Bommareddy Kamala Kumari, v. The Tahsildar

Telangana HC18 Feb 2011WP/18869/2007

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by an ex-Sarpanch challenging a distraint order issued under the A.P. Revenue Recovery Act. The court held that the order was unsustainable because the respondents failed to conduct the mandatory enquiry under Section 265 of the A.P. Gram Panchayat Act to determine liability before demanding recovery of funds.

What did the court decide?

The impugned distraint order passed by respondent No.2 is set aside.

Smt. Bommareddy Kamala Kumari, Vs The… — Pension and Retirement Benefits | Telangana HC (2011)

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THE HONOURABLE SRI JUSTICE N.V. RAMANA

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W.P. No. 18869 of 2007

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Oral order:

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The petitioner was ex-Sarpanch of Pamarru Gram Panchayat during the years 2001 to 2006. After expiry of her term, the petitioner states that respondent No.3 namely the District Collector, Machilipatnam, Krishna District, issued notice dated 27.02.2007 stating that an amount of Rs. 3,56,865/- (Rs. 1,05,198/- and Rs. 2,51,667/- pertaining to SGRY and Srujala Dhara funds respectively) along with interest thereon, was recoverable from her, and called upon her to pay the said amount within 15 days. To the said notice, the petitioner states that she submitted detailed explanation in the form of reply-legal notice dated 18.05.2007, clearly explaining the amounts spent under SRGY and Srujala Dhara, as is evident from the respective bank accounts of the said projects. Pursuant thereto, the petitioner states that respondent No.3 issued proceedings dated 11.06.2007, and in pursuance thereof, respondent No.1, namely Tahsildar, Pammaru Mandal, issued another notice, to which the petitioner submitted detailed representation dated 09.07.2007. Respondent No.1 having considered the representation and having perused the records and having reconciled the accounts with reference to the bank pass books relating to the above-mentioned projects, found that the petitioner is liable to pay Rs.51,396/-, and accordingly sent his report to respondent No.3, and it is the case of the

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petitioner that respondent No. 3 has not taken any action thereon, and in the meanwhile, respondent No.2 namely Revenue Inspector, Pammarru, issued the impugned distraint order dated 25.08.2007 under the provisions of the A.P. Revenue Recovery Act, 1864, which the petitioner contends is illegal and arbitrary.

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The learned counsel for the petitioner submits that under the impugned order, respondent No.2 authorized the petitioner herself to distrain the property, which is contrary to law. He further submits that unless and until an enquiry as provided under Section 265 of the A.P. Gram Panchayat Act is conducted and an order determining the sum due and recoverable is passed, no amount can be recovered as arrear of land revenue, and no such enquiry was conducted in the instant case. He further submitted that even though respondent No.1, pursuant to the explanation submitted by the petitioner, verified the records, reconciled the accounts with reference to the bank accounts, and sent report to respondent No.3, stating that the petitioner was found liable to pay an amount of Rs. 51,396/-, respondent No.3 has not passed any order, and even before her liability to pay the amount is determined, respondent No.2 issued the impugned distraint order, which is illegal and arbitrary and prayed that the same be set aside.

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Respondent Nos. 1 to 3 filed counter. No counter is filed on behalf of respondent Nos. 4 and 5.

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Respondent Nos. 1 to 3, in their counter, admitted the factual

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position and stated that upon a report dated 25.01.2007 submitted by the Divisional Panchayat Officer, Gudivada, the District Collector issued notice dated 22.02.2007 to the petitioner, calling upon the petitioner to pay the misappropriated amount of Rs.3,56,865/- to the Gram Panchayat, within a period of 15 days, and as the petitioner failed to pay the said amount, the District Collector, vide proceedings 11.06.2007, authorized the Tahsildar, Pamarru, to recover the said amount, as an arrear of land revenue, under the A.P. Revenue Recovery Act. Pursuant thereto, urgent notice and demand notice were served on the petitioner and the petitioner submitted her reply thereto to the Tahsildar, Pamarru, on 09.07.2007, stating that she has to pay only an amount of Rs.51,936/-. Thereupon, a report was sent by the Tahsildar, to the District Collector, Krishna, pursuant to which the District Collector has issued directions to recover an amount of Rs.3,56,865/- from the petitioner, under the Revenue Recovery Act, as ordered earlier. Accordingly, the impugned distraint order dated 25.08.2007 was issued by the Revenue Inspector, Pamarru. They further contended that the Revenue Inspector, being part of the revenue administration, cannot be said to be having no jurisdiction to pass distraint order under Section 8 of the A.P. Revenue Recovery Act. So far as the contention of the petitioner that under the impugned order, respondent No. 2 authorized the petitioner herself to distraint the property, contrary to law, is concerned, there is no explanation in the counter of respondents 1 to 3, but however, learned Assistant

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Government Pleader for Revenue submitted that it is a mistake committed by the officers.

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They, therefore, contended that there is no illegality or irregularity in issuing the impugned proceedings and prayed for dismissal of the writ petition.

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Heard the learned counsel for the petitioner and the learned Assistant Government Pleader for Revenue and the learned Assistant Government Pleader for Panchayat Raj and Rural Development.

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As can be seen from the rival contentions of the parties, though the respondents raised a demand for Rs.3,56,865/-, the petitioner disputed the said liability in toto and submitted that she is due and liable to pay an amount of Rs. 51,936/-, which she is even now ready and willing to pay. It is her case that she submitted detailed explanation, accounting the amount, and requested the respondents to verify the same with the records pertaining to SRGY and Srujala Dhara Schemes, but the respondents, without considering her explanation, have raised the impugned demand, demanding her to pay an amount of Rs.3,56,865/- as arrear of land revenue. The counter filed by respondent Nos. 1 to 3 is silent as to whether the explanation submitted by the petitioner was considered before issuing the impugned demand order. In fact, the demand order also does not disclose whether any consideration of the explanation submitted by the petitioner has been made. Thus it is clear that the demand and distraint order have been passed without considering the detailed

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explanation submitted by the petitioner.

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Be that as it may, it is the case of the petitioner that an enquiry as contemplated under Section 265 of the A.P. Gram Panchayat Act has to be conducted for determining the amount due and liable to pay, and that the respondents, without conducting any such enquiry, passed the impugned distraint order. The respondents have not placed any material before this Court to show whether any enquiry as contemplated under Section 265 of the Gram Panchayat Act, has been conducted by the respondents for determining the liability. That being so, the demand raised by the respondents cannot be sustained.

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However, if after conducting enquiry as contemplated under Section 265 of the Gram Panchayat Act, the amount due and liable to be paid is determined, and if the petitioner fails to pay the same in spite of raising the demand, then the respondents would be justified in passing order for recovery of the amount due and payable as arrears of land revenue, and even after passing such order, if the petitioner fails to pay the same, then the respondents can pass distraint order. As no enquiry as contemplated under Section 265 of the A.P. Gram Panchayat Act, has been conducted by the respondents for determining the liability of the petitioner, the question of the respondents raising demand, and recovering the same as arrear of land revenue, and passing distraint order does not arise. Therefore, the impugned distraint order passed by the respondents cannot be

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sustained and is liable to be set aside.

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For the foregoing reasons, the impugned distraint order passed by respondent No.2 is set aside. This order, however, does not preclude the respondents from determining and recovering the amounts due and liable to be paid by the petitioner, by following the procedure contemplated under law, and after providing opportunity of submitting explanation and opportunity of hearing to the petitioner.

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Accordingly, the writ petition is allowed. No costs.

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__________________ JUSTICE N.V. RAMANA

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18^th February, 2011 IBL

Smt. Bommareddy Kamala Kumari, v. The Tahsildar

Case brief

What is this about?

What did the court decide?

Smt. Bommareddy Kamala Kumari, v. The Tahsildar

Case brief

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