Medandi Sambasiva Rao v. The Tahsildar,
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.10235 of 2012 ORDER :
Petitioner had filed this Writ Petition challenging the attachment Notice Rc.B.75/2008, dt.23.02.2012 issued by the 1st respondent asking the petitioner to show cause why property belonging to the petitioner, which was attached for a sum of Rs.98,251/-, shall not be recovered by sale of the said property.
2. Petitioner was a former Taluq Level Stockiest to Kanchikacherla Taluq of Krishna District. He contends that prosecution was initiated against him in the year 1998 by the respondents alleging that he misappropriated the PDS stock worth Rs.1,77,523/- in 1985; charge sheet was filed against the petitioner before the Judicial Magistrate of First Class, Nandigama in C.C.No.5 of 1998 alleging that the petitioner committed an offence under Section 406 IPC; and the petitioner was acquitted by the said Court on 21.06.2001. This judgment became final and no appeal was preferred against it by the State.
3. Thereafter, the impugned notice was issued attaching the petitioner's property.
4. Petitioner contends that he had not committed any misappropriation and when the petitioner had been acquitted by the Criminal Court in C.C.No.5 of 1998 on the ground of absence of evidence, it is not open to the respondents to initiate proceedings under A.P. Revenue Recovery Act, 1864. He contended that there has to be a prior assessment of the liability of the petitioner before issuing the impugned order of attachment, and without conducting any enquiry and furnishing any material to the petitioner, the impugned notice has been issued. He also contended that recovery proceedings have to be initiated within three years from the alleged date of misappropriation and since the misappropriation occurred in 1985, any claim for recovery of said amount in 2012 is time barred.
5. Counter affidavit is filed by the 1st respondent refuting the above contentions of the petitioner. It is alleged that the petitioner was appointed as a Taluq Level Stockiest in Kanchikacherla by the A.P. State Civil Supplies Corporation Limited for supply of essential commodities to Fair Price Shop dealers under the Public Distribution System. During verification of stocks, it is alleged that shortage of stocks worth Rs.1,77,522.61 paisa was found, that after deducting the security deposit and commission, the petitioner is still liable to pay Rs.98,251/-. The 1st respondent admits that the petitioner was acquitted by the criminal Court. He contends that as per records of the A.P. State Civil Supplies Corporation Limited, an amount of Rs.98,251/- has to be deducted from the petitioner and that is why the 2nd respondent issued instructions to initiate action under A.P. Revenue Recovery Act, 1864 by attaching his property and by selling it.
6. Copy of the proceedings No.Mis.appn.cases/1/2011, dt.24.07.2011 of the Joint Collector is filed along with the counter affidavit, wherein review of cases was done by a Committee consisting of Joint Collector and other revenue officials. As regards the petitioner, it is mentioned therein as under: S.
No.
Brief details of the case Instructions issued by the Joint Collector Sri M.Sambasiva Rao case:
Sri M.Sambasiva Rao Ex-TLS Kanchikacherla misappropriated PDS Stocks worth Rs.1,77,523/- in the year 1985. The APSCSC filed a criminal case in the year 1998 against t h e defaulter and it was dismissed by the The Tahsildar, Kanchikacherla report ed that he obtained the Encumbrance Certificate from the Sub-Registrar concerned and it is found that an extent of 63.25 sq.
yards of land was stood in the name of defaulter for which the said land was possessed by the defaulter by way of gift deed from hid mother. As such, the Joint collector issued instructions to the Tahsildar, Kanchikacherla to recover the misappropriated amount from the defaulter by invoking the provisions of the R.R. Act immediately.
Hon'ble 1st Class Judicial Magistrate, Nandigama in CC No.5/98. No appeal was preferred by the police department based on the opinion rendered by the APP., Nandigama. But the District Collector issued instructions to the Tahsildar, Kanchikacherla to recover the balance amount under R.R. Act.
The recovery is pending with the Tahsildar, Kanchikacherla at present.
7. A reading of the above proceedings of the Joint collector indicates that the alleged misappropriation of stocks was in the year 1985. The criminal case filed against the petitioner in 1988 was dismissed in 2011 and no
appeal had been preferred by the State against the said judgment.
8. Only on the ground that the 2nd respondent had instructed the 1st respondent to recover the amount of Rs.98,251/- under the provisions of A.P. Revenue Recovery Act, 1864, the impugned action appears to have been initiated.
9 . There is no adjudication by any authority, whether a Civil Court or any other statutory forum, that the petitioner misappropriated the sum of Rs.1,77,522-61 paisa.
10. Without there being any adjudication under any statute or Civil Court of this alleged liability of the petitioner, it is not open to the respondents to initiate proceedings under A.P. Revenue Recovery Act, 1864 to attach petitioner's property by the impugned notice and attempt to sell it, particularly, when the criminal case C.C.No.5 of 1998 filed by the State against the petitioner ended in a clean acquittal.
11. Therefore, the Writ Petition is allowed; the impugned Notice Rc.B.75/2008, dt.23.02.2012 issued by the 1st respondent is set aside. The respondents shall also pay costs of Rs.5,000/- to the petitioner.
12. Consequently, miscellaneous petitions pending, if any, shall stand dismissed.
_____________________________ M.S.RAMACHANDRA RAO, J 21st June, 2016.
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