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Rajasthan High Court · body

1989 DIGILAW 845 (RAJ)

Hindustan Engineering Corporation, Jaipur v. Rajasthan Financial Corp.

1989-11-17

D.L.MEHTA

body1989
D.L. MEHTA, J.—Petitioner, Hindustan Engineering Corporation preferred this revision petition being aggrieved with the order dated, 24th October 1989 passed by the learned trial court and the order dated, 2nd November 1989 passed by the appellate court rejecting the application moved under Order 39 Rules 1 and 2 C.P.C. 2. Petitioner has come with the case that he borrowed few lacs of rupees from the Rajasthan Financial Corporation, non-petitioner. He instituted a suit against the Corporation and prayed therein that he should not be dispossessed from the property against which he has obtained the loan. The description of the property is the industrial unit situated in Malviya Nagar in Khand No. H-148. Both the courts below considered that there is no prima facie case in favour of the petitioner and injunction should not be granted restraining the financial corporation from realising the loan already granted to the petitioner. In the matter of realisation it is necessary to take the management and possession of the property under section-29 of the State Financial Corporation Act, 1951. 3. Mr.Bhandari appearing on behalf of the petitioner, with all vehemence at his command submitted that the provisions of Section-29 cannot be invoked as no regulations have been framed under section-48 of the said Act of 1951. Section 48 of the Act is an enabling provision under which the Board may after consultation with the Development Bank and with the previous sanction of the State Government make regulation not inconsistent with the provisions of the Act of 1951. Thus, Sec. 48 is not mandatory section and it is only an enabling section. It is not necessary to frame the rules and regulations under section 48 of the Act and Corporation can function without the rules. Legislature in its wisdom has rightly used the word may in section 48. I do not find any force in this submission made by Mr. Bhandari about the applicability of Sec. 48 qua Section 29 of the Act. 4. The second limb of Mr. Bhandaris arguments is that section-29, no doubt, defines the right of the Financial Corporation to take over the management of the industrial concern. He further submits that such a right can be enforced by taking recourse to the ordinary law contained in the Transfer of Property Act and the Code of Civil Procedure. 4. The second limb of Mr. Bhandaris arguments is that section-29, no doubt, defines the right of the Financial Corporation to take over the management of the industrial concern. He further submits that such a right can be enforced by taking recourse to the ordinary law contained in the Transfer of Property Act and the Code of Civil Procedure. He has cited before me the case of Munna Lal Gupta vs. U.P. Financial Corporation (1). The case cited by Mr. Bhandari does not apply in the facts and circumstances of the case. Allahabad High Court was considering whether the possession of the property can be taken in exercise of the powers under section 29 or not. In the instant case, the Corporation is not taking the possession of any other property of the surety or even the lonee, but is taking the management and possession of the industrial units against which the loan was granted. Section-29 only enables the Corporation to take over the management or possession of the industrial concern. Thus the case cited by Mr. Bhandari is not at all relevant as the present petitioners are not taking possession of the property of the surety, but they are taking the possession of the industrial concern including the quarters constructed therein, may be for residential purpose of the staff or otherwise. 5. It is admittedly a settled law and Mr. Bhandari also does not contest also on this point that section-29 is a valid piece of legislation. Corporation has every right to proceed under section-29 unless it is shown that it has acted arbitrarily or maliciously. Even a judicial act if done arbitrarily can be checked and similarly every act done by the Corporation can be checked if done arbitrarily There is no allegation of any arbitrariness or malafide act done by the Corporation. It will not be out of place here to mention that small industrial units are established to give employment and enterpreneurship to the people particularly of the middle class so that they can strive not only towards the betterment of their own family but also for the betterment of the society as a whole. It is a decentralised scheme of the industry and for that purpose, the Financial. Corporation has been established under the Act of 1951, to achieve the objects laid down in the Constitution of India. It is a decentralised scheme of the industry and for that purpose, the Financial. Corporation has been established under the Act of 1951, to achieve the objects laid down in the Constitution of India. Particularly the preamble and Chapter-IV of the Constitution of India. Mr. Bhandari was advised to correct himself that the Judge is neither traditional nor an activist, but, the Judge is a Judge to be judged by the society and to guide the society for the fulfilment of the objects laid down in the peamble of the Constitution. In the present time one should not expect from a Judge that he will act like mason putting brick on the brick. Judge is a structural Engineer and Architect and foresees the future of the society and works for the betterment of the society and for that purpose if one is called the activist Judge one should not feel shy of it at least he is having a privilege of not being called a mason. 6. Upliftment of the society needs a regular financing and if the loans are not recovered there will be stagnancy and the Corporation will not be able to finance or refinance the enterpreneurs coming for its aid. In such circumstances, I am not inclined at all to modify the order passed by the courts below, particularly, when their loan is outstanding against the present appellant. 7. Mr. Bhandari submits that this Court in the case of Karam Singh v. State of Rajasthan (2) that every act including the act of eviction should be taken according to law and the principles of due process of law should be followed. There cannot be two opinions about the proposition of law. Due process of law may lead interpretation in the matter of applicability of law. Section-29 provides that the Corporation will have a right to take over the possession by force and it is not necessary that there should be any specific reference in the section itself. 8. Apart from that mere apprehension will not count. Of course, it is expected from the respondents that they will serve a notice, if not served so far for the vacation of the premises and call upon the petitioner to vacate the premises within a reasonable time. 8. Apart from that mere apprehension will not count. Of course, it is expected from the respondents that they will serve a notice, if not served so far for the vacation of the premises and call upon the petitioner to vacate the premises within a reasonable time. If the petitioner fails to do so naturally, the force will have to be used to take the possession of the properly and using of force to take over the possession of the property after serving a notice and giving a reasonable time to vacate, is a due process of law and it cannot be other than that. Mr. Bhandari has also cited before me the case of M/s Swastik Automobiles v. Bihar State Financial Corporation (3). Mr. Bhandari was asked , to produce the copy of the application and it seems that this ground has not been taken by him that the property of which the possession has been taken over, is sufficient to. satisfy the demands of the Corporation. Both the courts below have also not discussed this point for the very reason that there was no ground. Mr. Bhandari submits that he has taken this ground in the revision. The revisional jurisdiction cannot embark upon the new inquiry of facts and the powers of revisional court are very limited. A very alarming factor has crept in the society and particularly in many industrial units because of the abnormal rise in the prices of land. Industrial houses are selling the land which was allotted to them only for the industrial purpose. Ordinarily, this practice cannot be encouraged and a quarter and a house constructed in the industrial complex area is the part of the industrial complex area of the industry concerned and it is the requirement of that industry also that the Manager or the security guard should stay there for the safety & proper management. Without making any observations on this point I will limit myself only to this extent that the petitioner can move an application before the trial court and if the trial court is satisfied that the huge property has been taken away from the petitioner and the property is sufficient for satisfying the needs then the trial court can pass any appropriate order in the facts and circumstances of the case. However, no order can be passed, in this case. However, no order can be passed, in this case. Trial court shall also keep in mind that the object of the, industrialisation is not taken away by granting any stay in the disguise which may lead to the destablisation of the industrial concern and may result in not directing the auction purchaser for want of sufficient land. 9. In the result, the revision petition Is dismissed. No order as to costs.