BANALA KRISHNA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Aggrieved by the judgment and decree in O.S.No. 42 of 1981 on the file of the learned Subordinate Judge, Jagitial, Karimnagar District, wherein the suit filed by the plaintiff was dismissed, the plaintiff preferred the present appeal.

(2.) The parties are referred as they are arrayed in the suit. The facts leading to the filing of the case are that the plaintiffs father by name Enugu Kochagiri Rao (hereinafter referred to as the lessee) and one Nagabhushanam are the Abkari contractors in respect of a group of sendhi shops, Siricilla during the period1357 and 1358 F (the parties hereinafter referred to as arrayed in suit). He was also the contractor during the period 1356 to 1359 F, which was the turbulent period due to Razakar movement followed by police action in the erstwhile Nizam State. It is also the case of the plaintiff that most of the contractor were unwilling to take the shops on lease and the departmental officials requested them to take the shops on lease; by offering various concessions, and they have not even insisted for a regular contract to be entered into as required under the Hyderabad Abkari Act I of 1316 F. Acting upon the promise made by the departmental officials during 1358 F, the lessee has taken the group of shops on a monthly rental of Rs.38,972.00. Since police action was going on at that point of time the shops remained closed for the months of Azur and Dai, and the lessee could not do any business. Consequently the rentals due to the Government could not be paid at that point of time. It is also the case of the plaintiff that his late father, the lessee along with several other similarly placed contractors sumbitted an application seeking remission of rentals for those months. Though the Collector rejected their request on an appeal filed by his late father the senior member of the Board of Revenue, in exercise of the powers U/s 3(3)(o) of the Hyderabad Abkari Act r/w Section 6 of the Board of Revenue Act, 1358 F by his order dated 8-1-1951 in file No.51/87/50 recommended to the Government to grant remission of monthly rents for these two months. Thereafter some correspondence was going on between the government and the lessee in respect of recovery of excise arrears for the period 1356 F to 1361 F and the lessee was making representations to the officials seeking remission of the amount as per the policy of the Government with regard to the Abkari lease during the turbulent period. Those details were not brought before the court in clear terms. But in Ex.A-2, dated 8-6-1966, the Collector (Excise), Karimnagar in his proceedings Rc.No.5749/Ex/58/D1 gave the details of the amounts payable by giving yearwise break up of the arrears by the lessee. The relevant portion of Ex.A-2, dated 8-6-1966 reads as follows: @@ Name of Name of the Amount due Fasli defaulter 1356 Kochagiri Rao 154-30 1357 -do- 14,507-51 1358 Kochagiri Rao and Nagabhushanam 88,378-66 1359 -do- 4,945-35 1 361 Nagabhushanam (surety Kochagiri Rao) 1 1 ,71 7-35 Total 1,19,703-17 Of this, remission was granted by the Government in respect of the following years. 1357 Kochagiri Rao 4,818-66 1 358 Kochagiri Rao and Nagabhushanam 23,253-42 Total 28,072-08 Balance due from Kochagiri Rao: 91,631-07 @@

(3.) From the above it is seen that the substantial arrears claimed by the Government relates to the two months, Azur and Dai of 1358F. In this letter, the Collector recommended to the Government to writ off the arrears keeping in view the fact that the son of the lessee Capt. Vijaya Raghunandan Rao, laid down his life while defending the boarders of the country during the Indo-pak war on sympathetic grounds. The said recommendation of the Collector was turned down by the Government in Memo No. T/ 5236/59-11, dated 29-3-1962, perhaps having come to know of this, on the same date another representation was made by the lessee to the Government, wherein he categorically brought to the notice of the court that the senior member of the Board on 8-1-1961 requested the Government to reconsider the issue. The said representation was rejected by the Government under Ex.B-9, dated 23-3-1962 in Memo No.T/1029/62-2. On a further representation made by the lessee, the Collector in his proceedings dated 2-7-1970 deducted the sale proceeds the pronotes held by the Government i.e., Rs.30,000.00 and fixed the arrears payable as Rs.61,631 - 07 for the period 1358 F. Ultimately the Collector issued a notification to bring the immovable properties held by the lessee to auction as if the lessee is in arrears of land revenue under Section 36 of the A.P. Revenue Recovery Act, 1864. Questioning the said notification the lessee filed the present suit in O.S.No 42/81 seeking rendition of accounts on the claim of the defendants in respect of sendhi contracts for the years 1356 F to 1361 F and for a direction to the defendant to pay the plaintiff the amount that may be found due and for permanent injunction restraining the defendant and his subordinates for taking coercive action for recovery of Rs.61,631-07 as arrears under the Sendhi contract. The defendant filed the written statement as per their version claiming the amounts. On the above pleadings the court below initially by order dated 23-6-1981 framed the following issues: