1. The notice issued by the Principal, Sainik School (hereinafter referred as the School) on 15-6-1967 and served on the writ petitioner forms the basis of controversy in this writ petition. The notice relates to Swami Naidu (the son of the petitioner) who studied in the School between July, 1962 to Dec. 1966. The petitioner submitted the application for his son's admission on 14-7-1962 to which were appended a declaration by the petitioner in an affidavit, a certificate issued by the Village Karnam, Katipa and another certificate issued by the Tahsildar, Parvathipuram showing the income of the petitioner as Rs.200/- a month. These documents were relied on by the Board of Governors of the School and they awarded 'A' grade scholarship to Swami Naidu. The Board of Governors further obtained a guarantee agreement on 6-4-1964 from the petitioner in the declaration as to the income was 'found' false by the Board of Governors the petitioner will be liable and obliged to refund the 'excess amount' received by his son. Whether there was 'excess' amount paid to the student or not was a matter under that agreement (for which) the Board of Governors were the final arbiters. The Principal of the School in the notice served on the petitioner informed that the Tahsildar,Parvathipuram on 10-5-1967 and again on 11-12-1970 (by leter on the latter date after enquiry in which the petitioner was examined on 1-6-1970 and one Govindswami Naidu on 7-7-1970) informed the income of the petitioner as in gross Rs. 9740/- . The Board of Governors on receipt of the former letter 'revised' the scholarship awarded to Swami Naidu from Grade 'A' to Grade 'D' and decided to collect from the petitioner the excess amount of Rs.7,555/-. In Memorandum No. 4533/B1/68-75, Education dated 1-1-1975 the Government directed the revenue department to collect the 'refundable scholarship' as arrears of land revenue under the Revenue Recovery Act, 1864 and the first respondent in R.C.No. 3144/35 dated 28-5-1975 instructed the Revenue Inspector to collect the amount. The writ petitioner resists the recovery in these proceedings.
2. The Sainik School is a residential school to train boys for various courses in armed services. The State and the Central Governments 'spend huge amounts' and the school awards liberal scholarships based on 'merit-cum-means' to the deserving students. The respondents in two separate counters urge that there was 'excess' amount paid to the writ petitioner and they are entitled to realise the amount in question under S. 52 of the act as 'amount due' to the State Government'.
3. The counsel are agreed in these proceedings that there cannot be any determination of the question whether the petitioner has made a false declaration on 14-7-1962 and in truth and under the rules whether Swami Naidu was entitled to the Scholarship in Grade 'A' or to the grade in 'D'. These are disputed questions which perforce a Civil Court has to determine. The limited question at issue is whether the State Government can realise the amount decided by the Board of Governors as 'excess' as 'amount due to the Government' (S. 52 of the Act).
4. The liability ex facie in the instant case has reference to the guarantee agreement dated 6-4-1964. Curiously the Board of Governors of the School left the deed without even subscribing by them. The agreement recites inter alia, 'the guarantor (the writ petitioner) to pay the Governors promptly and whenever called upon to do so all the fees as prescribed if he is not in receipt of any scholarship. If after admission any of the following viz., proof of domicile, certificate of age and statement of income supplied by the guarantor is found to be false, the guarantor shall forthwith pay to the Governors in cash the sum the student has received from the School or the State Government/Central Government the value of the scholarships he has received for the period the student was at the said school'. The state Government is not eo nomine a party to the agreement except that the District Educational Officer, Visakapatnam attested the deed.
5. A Division Bench of this Court adverting to S. 52 of the Revenue Recovery Act in B.C. Mulajkar v. Govt. of Andhra Pradesh ( : AIR1971AP169 ) held: (head note):
'Before the Government could recover the sums due under S. 52 of the Act, the appellant should be furnished with the relevant material on which the amount is said to be due, and given an opportunity to make his representations and produce the relevant material to substantiate his representations and thereafter the liability determined. Only on such determination of the liability and the amount due thereunder, the Government can take proceedings under S. 52 of the act for recovering the amount. In other words the recovery proceedings under S. 52 of the Act should be preceded by an anterior determination of the liability and the amount due towards such liability'.
In the course of the debate the learned Government pleader and the learned counsel for the second respondent on the case in Nainamul v. Subba Rao 1957-2 Andh WR 53 :(AIR 1957 Andh Pra 546)(FB) for the meaning of the word 'due' and the decision in Kuppuswami Gramani v. State of Madras ( : AIR1957Mad23 ) in which Ss. 52 and 59 of the Revenue Recovery Act were considered with reference to Articles in Part III of the Constitution of India.
6. The Government not in every case can enforce their claim under S. 52 of the Act. The claim to attract the provisions must be 'determined' anterior to the proceedings in realisation as liability or 'due' to the Government. The decided cases do stress this aspect as in the case B.C.Mulajkar v. Govt. of Andhra Pradesh ( : AIR1971AP169 ) (cited above) the anterior determination by some authority or the other. Cases where the Statutes prescribe the realisation of the land revenue fall in one category directly under the Act. The next is the category of claims where the Special Acts declare the State Government to realise their dues 'as land revenue'. The 'claim' in the instant case does not fall in any of the two categories. The agreement on 6-4-1964 points the amount is due to the Board of Governors of the Sainik School and in such a case how can it be said the amount is due to the 'Government' which is of the third category of cases dealt under S. 52 of the Act. The respondents have urged that in origin and in substance the 'scholarship amounts' awarded by the School were the funds of the Government. Therefore the amount is due to the Government. To say the least even if it is true having regard to the terms and recitals in agreement on 6-4-1964 the plea is extravagant. To say whenever the Government 'feel or decide' their claim can be enforced under S. 52 of the Act is to clothe the Government with a blanche and cannot be justified. The Court must prima facie be satisfied that cases falling under the third category that the amount is 'due' to the Government.
7. For the reasons indicated a writ petitioner cannot be subject to the provision under Revenue Record Act of 1864. The petition is allowed. No order as to costs. Advocate's fees Rs. 100.
8. Petition allowed.