LAWS(MAD)-1987-8-18

VAIRAPPA THEVAR Vs. SPECIAL TAHSILDAR VEDARANYAM THANJAVUR DISTRICT

Decided On August 11, 1987
VAIRAPPA THEVAR Appellant
V/S
SPECIAL TAHSILDAR, VEDARANYAM, THANJAVUR DISTRICT Respondents

JUDGEMENT

(1.) THE auction sale of arrack shop No.2, Kumbakonam, Thanjavur district for the lease year 1973-74 was held on 21.7.1973. THE appellant's bid for a monthly kist of Rs.30,700 was accepted and the auction was knocked down in his favour. Apart from depositing Rs.1,000 as per the conditions of the auction which enabled him to bid, the appellant did not make any further deposit. Under clause VII of the Conditions of Auction Sale, every person whose bid is provisionally accepted shall at once deposit half a month's rent for each shop knocked down in his favour unless the initial deposit equals or exceeds two months rents. In this case the initial deposit was only Rs.1,000 and therefore the question of its being equal or exceeding two months rent does not arise. THE clause further provided that if he fails to deposit half a month's rent immediately, the initial deposit made by him with reference to condition No.2 will be forfeited. As per notice of auction, the highest bid will be provisionally accepted by the Selling Officer subject to confirmation by the Collector. THE order for the Collector confirming the bid provisionally accepted by the Selling Officer shall be final, unless it is revised by the Commissioner for special reasons. Clause XI of the Conditions of Auction Sale which is relevant for our purpose reads as follows:

(2.) WHEN the appellant had not deposited half a month's rent and complied with the other provisions of the auction conditions, the shop was re-auctioned and the highest bid of a third party for a sum of Rs.l8,600 was accepted, and the re-sale was confirmed in his favour by the Collector. Invoking the provisions of Clauses XI of the conditions, a notice was issued to the appellant demanding a sum of Rs.1,45,200 being the difference between the bid amount of the appellant and that realized in the re-auction for the one year period for which the auction was held. On the ground that there was no response to the notice issued calling upon him to pay this sum, revenue recovery proceedings were also initiated. At that stage, the appellant filed W.P.No.3510 of 1974 K.R. Vairappa Thev ir v. The Special Tahsildar, Tahsildar (Excise) Kumbakonam. That writ petition was admitted. Ultimately by an order dated 26.7.1977, this court allowed the writ petition on the short ground that the appellant was not served with any notice prior to the recovery proceedings. Subsequent to the disposal of writ petition, a notice in Form No.2, dated 29.12.1979 setting out the facts in detail and enclosing a statement as to how the amount of Rs.1,45,200 was arrived at, was issued to the appellant informing him that the amount is proposed to be recovered from him under the provisions of the Revenue Recovery Act, and if he wants to make any representation in this regard, he should send his representation in writing along with all relevant materials in support thereof to reach the Tahsildar who issued the notice within seven days from the date of receipt of the same. He was further informed that if no representation was sent, it will be assumed that he has no representation to make and the recovery will be ordered as proposed. This notice was sent by registered post on 10.1.1979. But it was returned with the endorsement that he has refused to receive the same. Thereafter, a notice sent through a messenger and it was served on the appellant in person on 2.5.1979 as seen from the endorsement of receipt of the notice in the copy of the notice and signed by the appellant. It is not clear as to why another notice was sought to be served, and again when the notice was sent, it is stated that he refused to receive the same. But what is relevant for our purpose is that the notice dated 29.12.1978 which was sent to the appellant was received by him on 2.5.1979 and that complies with the order of this court in the earlier writ petition in W.P.No.3510 of 1974. No representations having been received, again revenue recovery proceedings were initiated and at that stage, the appellant filed W.P.No.5780 of 1980 praying for the issue of a writ of Prohibition prohibiting the respondents from proceeding with the collection of Rs.1,45,200.

(3.) THE decision of the Supreme Court in Stale of Karnataka v. Rameshwara Rice Mills, Thiruthahalli A.I.R. 1987 S.C. 1359 relied on by the learned counsel for the appellant would not also support him because in that the case the Supreme Court had held that a right to adjudicate upon an issue relating to a breach of conditions of the contract cannot be said to flow from or is inhered in the right conferred to assess the damages arising from a breach of conditions, and that the right of the State Government to assess damages would arise only if the breach of conditions is admitted or if no issue is made of it. In that case, in view of the fact that he had not made any representation or replied to the notices, we proceed on the basis that the breach of the condition is admitted or atleast it is not made an issue. If that is so, there could be no doubt that the Government have a right to assess the damages arising from the breach and recover the amount under the provisions of the Revenue Recovery Act.