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1994 DIGILAW 352 (CAL)

Andharia S. K. U. S. Ltd. v. State of West Bengal

1994-11-23

Ruma Pal

body1994
Judgment Ruma Pal, J. 1. Each of the petitioners are Co-operative Societies formed for the purpose of improvement of agriculture output in the locality. The members of the petitioners had obtained loans from the Vidyasagar Central Co-operative Bank Limited (referred to as the Bank) represented by the respondents Nos. 3, 4 and 5 herein. According to the petitioners, their members were entitled to the benefits of the Agricultural and Rural Debt Relief Scheme, 1990 (referred to as Scheme). According to the petitioners distress warrants had been wrongfully issued against their members for recovery of loans by the bank despite the fact that the petitioners' members were entitled to waiver of their loan under the provisions of the Scheme. 2. The petitioners had filed an earlier writ application in the matter which was disposed of on 30th August, 1993 by A. Kabir, J., by directing the respondents to consider the individual cases of the petitioners in relation to the scheme and to give such relief to the petitioners if they are otherwise entitled to such relief under the scheme within three months from the date of the order. Pending disposal of the petitioners' case the respondents were directed not to proceed with the demand made. 3. The petitioners were called for hearing by the concerned authority. The date for the first hearing was fixed on 1st October, 1993. The petitioners prayer for a further adjournment of one month which was refused. An order was passed on 12th October, 1993 by the General Manager of the Bank. It is this order which is impugned in these proceedings. 4. According to the impugned order, the members of the petitioners were not entitled to relief under the Scheme because there had been no certificate of bad crop yield issued by the BDO of the concerned Block or by the Competent Authority which was an essential pre-requisite for the granting of relief. Secondly, the claim of the petitioners' members had been made subsequent to the expiry of the scheme on 31.3.1991. The third reason stated was that a certificate issued by the ADO Binpur-I had been communicated on 29.10.91 long after the expiry of the scheme. 5. This writ application was filed in July, 1994. An interim order was passed which has been continued from time to time. 6. The matter has now come for extension of the interim order. The third reason stated was that a certificate issued by the ADO Binpur-I had been communicated on 29.10.91 long after the expiry of the scheme. 5. This writ application was filed in July, 1994. An interim order was passed which has been continued from time to time. 6. The matter has now come for extension of the interim order. The bank has opposed such an extension. According to the petitioner, the Court should dispose of the matter only after the bank had filed an affidavit in opposition to the application of the petitioner. It is said that the ground for rejection of the petitioners' case' was the non-production of the certificate of the BDO when in fact, such a certificate had been granted. 7. The certificate reads as follows: "Government of West Bengal Office of the Agril Development Officer Binpur-I Block On the adopted resolution of Krishi Sech-O-Samabay Sthayee Samity of Binpur-I Panchayat Samity, dated 18.1.91 this is to certify that extent of yields of all the Mouzas of Binpur-I Block for the period from 1.4.86 to 2.10.89 were less than fifty percent. Sd/- Illigible (Sic) Agricultural Development Officer Binpur-I Block Countersigned Sdj- Illigible (Sic) Block Development Officer Binpur-I. OFFICE OF THE BLOCK DEVELOPMENT OFFICER: BIN PUR-I BLOCK Memo No. 1113 (15) dt. Lalgarh, the 29.10.91 Copy to all Bank Branches for information and taking necessary action. Sd/- Illigib1e (Sic) Block Development Officer Binpur-I". 8. According to the respondents, the scheme ceased to be operative since 31st March 1991. It is submitted that this is clear from the circular issued by the Department of Co-operation on 2nd July 1990 wherein the Reserve Bank of India and the National Bank for Agriculture and Rural Development (NABARD) undertook to repay the loans which are required to be waived by the Bank in three instalments, the first of which was to commence on 31st March 1991. Reference has also been made to a notice issued by the NABARD that the Government of India had decided that the scheme should come to an end by March 1991 and that the final claim in respect of relief provided under the Agricultural and Rural Debt Relief Scheme had to be submitted so as to reach NABARD Head Office on or before 15th April 1991. It is therefore, submitted that the waiver of a further loan at this stage would mean that the Bank would be unable to recover the same either from the Reserve Bank of India or from the NABARD. Secondly, it is submitted that the certificate was not in the form specified. A loan eligible for waiver had been defined as meaning- "(i) that part of the short-term loans including convered rescheduled medium term and long-term loans availed of by an individual borrower on or after 1.4.86 and instalments of a term loan falling due after 2.1. 86, which was overdue to a bank as on the effective date, and includes overdue interest." 9. The effective date according to the scheme was 2nd October 1989. The scheme itself provides that financial assistance was to be provided in respect of overdue claims of non-wilful defaulter members whose accumulated unpaid dues did not exceed Rs. 10,000/-. A non-wilful defaulter has been defined as a borrower of loans who could not repay loan or loan instalments due and experienced two or more consecutive or not bad crop years one of which was the year in which the default occurred. "Bad Crop Year" has been defined in paragraph 2 (c) of the Scheme as : "(c) "Bad Crop Year" means a year resulting in a crop yield which may be 50% or less of the normal yield. Such poor yield, however, will have to be certified mouzawise by the BDO's or the authority specified by the State Government." 10. It is submitted that the certificate relied upon by the writ petitioners was not a certificate of the BDO or any competent authority, but the resolution of the Krishi Sech-O-Samabay Sthayee Samiti of Binpur. There was, according to the respondent Bank as such, no question of waiver. 11. Finally it is submitted that the only question for this Court is whether the respondent authority had considered the relevant material and even if the Court might have to come a different conclusion on the same material that was no ground .for interfering with the view taken by the respondent Bank. It may be mentioned that the existence and the validity of the circulars relied upon by the respondent Bank had not been questioned by the petitioner. The petitioners have however, contended that the scheme had not come to an end. It may be mentioned that the existence and the validity of the circulars relied upon by the respondent Bank had not been questioned by the petitioner. The petitioners have however, contended that the scheme had not come to an end. They have relied upon a certificate issued by United Commercial Bank to the effect it was holding Rs. 6,77,233.20 paise as Agricultural and Rural Debt Relief for the period from 1.9.1986 to 2.10.1989 for adjustment against the loan account with the Bank. The certificate is dated 13.4.92. 12. It is further contended by the petitioners in reply that there was nothing to show in the scheme itself that the period of the scheme was limited till 31st March 1991 and an claims had to be put in before that date. It is submitted that it was for the Bank to determine the question of eligibility of the petitioners loan and that the Bank could not take advantage of any internal circular to limit the operation of the scheme to March 1991. 13. It may be noted that the respondents did not ask for an opportunity to file affidavits. As such the matter was placed for orders for disposal on the basis of averments contained in the petition and the arguments of the parties. In my view, the writ application is liable to be rejected on the simple ground that the certificate in question is not the certificate of the BDO/Competent Authority. When an Officer is required to certify a particular statement it is incumbent upon him to apply his mind before he can issue certificate in the matter. From he certificate relied upon it appears that the ADO and BDO merely relied on the resolution of the K.S.O.S.S. Samity of the locality. Such a certificate cannot be described as the certificate of the concerned BDO. The essential pre-requisite to the question of waiver of the loans therefore being absent, there would be no question of consideration of the petitioners' application for waiver. 14. Secondly, the certificate of the United Commercial Bank does not touch the loan given by the respondent Bank but relates to the implementation of the scheme through UCO Bank itself. There is also substance in the submission that the respondent Bank cannot be asked to bear the burden of the Governmental policy to waive recovery of certain loans. 15. 14. Secondly, the certificate of the United Commercial Bank does not touch the loan given by the respondent Bank but relates to the implementation of the scheme through UCO Bank itself. There is also substance in the submission that the respondent Bank cannot be asked to bear the burden of the Governmental policy to waive recovery of certain loans. 15. Under the scheme, the banks through which payments are made are mere conduit pipes for giving effect to the policy of the Government. The decision to terminate the scheme on 31st March 1991 has been taken by the Government of India. The Circular dated 26th February 1991 issued by NABARD states : "The Government of India has now decided that the Agricultural and Rural Debt Relief Scheme should come to an end by 31st March 1991. You are, therefore, requested to complete the remaining work if any, of identification as also the passing on the relief in respect of the beneficiaries (including issue of certificates) before 31st March 199]. The beneficiaries covered under the scheme after the said cutoff date will not be eligible for relief under the Agricultural and Rural Debt Relief Scheme." 16. The banks were also required to disply the cut-off date on their notice Boards. In the absence of an affidavit from the respondents it is not possible for the Court to come to any conclusion as to whether this part of the directive was complied with by the respondent bank or not. However neither the Reserve Bank of India nor NABARD nor the Government of India have been made parties to this proceeding. In their absence, the decision to terminate the scheme with effect from 31.3.91 cannot be decided nor can the bank be faulted for implementing the directive issued by the Government of India and NABARD. 17. The writ application is accordingly dismissed. There will be no order as to costs. 18. Stay, as prayed for, is granted for three weeks (?) from date. 19. It is made clear that the interim order which was operating will continue as long as the stay is operated. 20. Let xerox copies of this Order be given to the Learned Advocates appearing for the parties on their usual undertakings. Application dismissed.