Sri Balaji Paddy and Rice Merchant Vs. State of Andhra Pradesh - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.lingaraja rath, j.1. the sole question urged, on admission of the case, is that the reopening of the assessment proceeding under section 14(4-a) of the a.p. general sales tax act (for short 'the act') was barred by limitation inasmuch as the original order of assessment was passed on december 16, 1983 which order was served upon the assessee on january 19, 1984, and the escaped assessment order was passed on january 8, 1988 and served upon the assessee on march 9, 1988. placing reliance on a decision of the supreme court in state of andhra pradesh v. ramakishtaiah & co. [1994] 93 stc 406 it is urged that not only that the escaped assessment must be made within four years from the date of service of the original assessment order upon the assessee, but that unless such assessment order is served upon the assessee also within four years of the service of the original assessment order has been made, the fresh assessment must be held to be barred by time. referring to the decision cited, we do not find any such principles to have been decided. the facts in that case are that the original assessment order had been passed in september, 1969 and the revisional order was shown to have been passed on january 6, 1973. though it was so, yet the order was served upon the assessee only on november 21, 1973. the assessee had come up with the case that though the order of revision was purported to have been passed on january 6, 1973, yet it was not actually so and had been ante-dated to bring it within the four years period under section 22(2). their lordships held that when the department has not come forward with any explanation as to why the order purportedly made on january 6, 1973 was served 10 1/2 months later on november 21, 1973, it must be presumed that the order was actually ante-dated and that it might have been passed after expiry of four years period. even at the high court stage the revenue had lost though on a different interpretation and it had gone up in appeal before the supreme court. 2. a reading of the decision shows no general proposition to have been laid down that wherever the fresh assessment order is communicated to the assessee beyond four years, even if after a day or two, the fresh assessment order must be taken to have been barred by limitation. their lordships were dealing with the case with a peculiar set of facts where the conduct of the revenue was suspicious in not communicating the order for 10 1/2 months and hence argument was raised that the order had not been passed on the day on which it was purported to have been passed. it was specifically observed in the judgment that the department had not come with an explanation and that had there been a proper explanation, that would have been a different matter. reliance is also placed by mr. s. krishna murthy, learned counsel for the petitioner, on a decision in state of andhra pradesh v. toshiba anand batteries ltd. wherein this court observed 'that a consistent view has been taken by this court which has been affirmed by the apex court that the period of limitation of four years prescribed by section 20(3) of the apgst act covers the whole proceedings of the revision including passing of the final order and of communicating the same promptly to the party concerned.' this decision was rendered placing reliance on the decision of the supreme court [state of andhra pradesh v. ramakishtaiah [1994] 93 stc 406 referred to above]. even in this case no different view was taken and all that was said was that a revisional order must be promptly communicated to the party concerned. the requirement to communicate the order promptly is not a question of limitation in itself, but is a requirement of fairness and propriety, i.e., of natural justice. section 14(4-a) of the act no doubt is couched in the same language as section 20(3) of the act, but on the facts of the present case we do not think that there was such unexplained or inordinate delay so as to throw out the fresh assessment order. 3. it is conceded by mr. s. krishna murthy that the assessee has never challenged either before the first appellate authority or the second appellate authority or even before this court that the fresh assessment order was ante-dated so as to bring it within four years limitation. hence on facts, the supreme court decision is not applicable. 4. the application has no merit and is accordingly dismissed. no costs. 5. petition dismissed.