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LPA/378/2010 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 378 of 2010
In
SPECIAL
CIVIL APPLICATION No. 12543 of 2009
With
CIVIL
APPLICATION No. 2314 of 2010
In
LETTERS
PATENT APPEAL No. 378 of 2010
=================================================
NANDUBA
JASHUJI NAVUJI PARMAR WD/O JASHUJI NAVUJI & 4 - Appellant(s)
Versus
DENA
BANK & 4 - Respondent(s)
=================================================
Appearance :
MR
AJ SHASTRI for Appellant(s) : 1 - 5.
MR BHARAT JANI for
Respondent(s) : 1 - 3.
MR UMESH TRIVEDI, ADDL. GOVERNMENT PLEADER
for Respondent(s) : 4 -
5.
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 21/10/2010
ORAL ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
This
appeal has been preferred by the appellant borrower against the
order dated 24.2.2010 passed by the learned Single Judge in Special
Civil Application No. 12543 of 2009. By the said order, the learned
Single Judge dismissed the writ petition which was preferred against
the order for recovery of the dues of Dena Bank (hereinafter referred
to as the respondent bank ) under Section 165 of the Bombay
Land Revenue Code, 1879 read with Rule 129 of the Land Revenue Rules.
2. The
learned Single Judge held that the appellant borrower is not
entitled for waiver and dismissed the petition, but has not decided
the question whether the bank’s dues can be recovered under Section
165 of the Bombay Land Revenue Code, 1879.
3. As
noticed above, the learned counsel for the appellant has taken a plea
that the bank had no jurisdiction to take measures for recovering the
dues under Section 165 of the Bombay Land Revenue Code. It is
contended that the agricultural loan was taken by the appellant from
the bank pursuant to a scheme floated by NABARD and, therefore, the
bank cannot recover the dues under the Code aforesaid.
4. The
learned counsel for the bank relied on Section 15 of the Gujarat
Agricultural (Provision of Facilities) Act, 1979 (Gujarat Act No. 19
of 1979) [hereinafter referred to as the Gujarat Agricultural
Credit Act, 1979 ] and Section 3(2) of the Gujarat Public Moneys
(Recovery of Dues) Act, 1979 (Gujarat Act No. 17 of 1979)
[hereinafter referred to as the Gujarat Public Moneys Act, 1979 ]
and submitted that the recovery of dues of the bank can be made as
arrears of land revenue and, therefore, such recovery can be made
under Section 165 of the Bombay Land Revenue Code. However, such
submission cannot be accepted for the reasons mentioned hereunder.
Section
15 of the the Gujarat Agricultural Credit Act, 1979 deals with
recovery of dues in respect of financial assistance to carry out
State sponsored scheme as arrears of land revenue and reads as under
:-
15. Recovery
of dues in respect of financial assistance to carry out
State-sponsored Scheme as arrears of land revenue. – Notwithstanding
anything contained in the foregoing provisions of this Chapter, the
State Government, by an order published in the Official Gazette,
direct that any amount due from the agriculturist towards financial
assistance given to him by the bank for the purpose of carrying out
any State-sponsored scheme may be recovered on behalf of such bank as
an arrear of land revenue. Any amount so recovered on behalf of the
bank shall be paid over to the bank after deducting such portion
thereof as cost of collection as the Collector may determine to be
reasonable.
It
is true that the respondent bank comes within the definition of
bank under Section 3(d) of the the Gujarat Agricultural Credit
Act, 1979 , However, in the present case, we find that neither the
loan having given out of any State-sponsored scheme nor the State
Government has published any notification in the official gazette
directing recovery of the agricultural dues of the respondent
bank for the purpose of carrying out any State-sponsored scheme.
5. We
have noticed Section 2(l) of the Gujarat Public Moneys Act, 1979
wherein the State-sponsored scheme has been defined which means
a scheme sponsored or adopted by the State Government or an officer
authorized by it in this behalf for development of agriculture or
industry and notified as such by the State Government or the
authorized officer, by a notification in the Official Gazette, for
the purposes of the said Act. Therefore, the respondent bank cannot
derive the advantage of Section 15 of the Gujarat Agricultural Credit
Act, 1979.
6. So
far as Section 3(2) of the Gujarat Public Moneys Act, 1979 is
concerned, the said provision is also not applicable in the present
case.
Section
3 relates to recovery of certain dues as arrears of land revenue
where any person is a party and taken for the purposes as mentioned
in Section 3(1). In such case, the Collector on receiving the
certificate may make an inquiry and recover the amount under Section
3(2) of the Gujarat Public Moneys Act, 1979. This will be evident
from the provisions as quoted hereunder :-
3. Recovery
of certain dues as arrears of land revenue. (1) Where any person is a
party –
(a) to
any agreement relating to a loan, advance or grant given to him or
relating to credit in respect of, or relating to hire-purchase of
goods sold to him by the State Government or the Corporation, by way
of financial assistance, or
(b) to
any agreement relating to a loan, advance or grant given to him or
relating to credit in respect of, or relating to hire-purchase of
goods sold to him by a bank or a Government Company, as the case may
be, under a State sponsored scheme; or
(c) to
any agreement relating to a guarantee given by the State Government
or the Corporation in respect of a loan raised by an industrial
concern; or
(d) to
any agreement providing that any money payable thereunder to the
State Government or the Corporation shall be recoverable as arrears
of land revenue:
and
such person –
(i) makes
any default in payment of the loan or advance of any installment
thereof,
(ii) having
become liable under the conditions of the grant to refund the grant
or any portion thereof, makes any default in the refund of such grant
or portion or any installment thereof, or
(iii) otherwise
fails to comply with the terms of the agreement then, in the case of
the State Government, such officer as may be authorized in that
behalf by the State Government by notification in the Official
Gazette, in the case of a Corporation or a Government Company, the
Managing Director thereof or where there is no Managing Director, the
Chairman thereof, by whatever name called, and in the case of a bank,
the local agent thereof, by whatever name called, may send to the
Collector a certificate as early as possible in the prescribed form
mentioning the sum due from such persons and requesting that such sum
may be recovered as if it were an arrear of land revenue.
(2) The
Collector on receiving the certificate shall after making such
inquiries (including giving hearing to the party affected) as he
deems fit proceed to recover the amount stated therein as aforesaid
as arrears of land revenue.
(3) On
recovery of any amount under sub-section (2), the same shall be paid
over to the State Government, Corporation, Government Company, or as
the case may be, bank after deducting, except in the case of amount
to be paid to the State Government, such portion of the amount
realized, as cost of collection, as the Collector may deem to be
reasonable.
(4) … … … … …
Therefore,
the respondent bank also cannot recover the amount under Section
3 of the Gujarat Public Moneys Act, 1979.
7. As
we have noticed that the Bombay Land Revenue Code, 1879 is not
attracted in the present case, we hold that the respondent bank
could not have directed the Talati-cum-Mantri, Vasai to take steps
for auction sale of the property as intimated by letter dated
2.11.2009 nor the Deputy Mamlatdar & Special Recovery Officer,
Regional Office, Dena Bank, Mehsana could have issued auction notice
as issued at page 56 to the writ petitioner. For the said reasons,
we set aside the letter dated 2.11.2009 issued by the respondent
bank to the Talati-cum-Mantri, Vasai and the auction notice dated
6.12.2008 issued by Deputy Mamlatdar & Special Recovery Officer,
Regional Office, Dena Bank, Mehsana.
8. The
learned Single Judge failed to notice the aforesaid provisions and
thereby could not notice that the respondent bank had no
jurisdiction to recover the amount under Section 165 of the Bombay
Land Revenue Code, 1879 or the Rules framed thereunder.
9. So
far as the appellant’s right for waiver of loan is concerned, we are
not deliberating on such issue. The learned Single Judge has held
that the appellant has failed to show his right of waiver. If there
is any provision under which the appellant can claim right of waiver,
he may bring the same to the notice of the bank.
10. Though
we have set aside the the letter dated 2.11.2009 issued by the
respondent bank to the Talati-cum-Mantri, Vasai and the auction
notice dated 6.12.2008 issued by Deputy Mamlatdar & Special
Recovery Officer, Regional Office, Dena Bank, Mehsana, but this order
shall not stand in the way of the respondent bank to recover its
dues in accordance with law.
11. The
Letters Patent Appeal and the Civil Application both stand disposed
of with the aforesaid observations. No costs.
[S.J.
MUKHOPADHAYA, CJ.]
[ANANT
S. DAVE. J.]
sundar/-
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