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2002 DIGILAW 768 (MP)

LAKHAN AGRAWAL v. M. P. STATE FINANCIAL CORPORATION, INDORE

2002-08-12

BHAWANI SINGH, SUGANDHI LAL JAIN

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JUDGMENT S.L. Jain, J. As common questions of law being involved in both these appeals, they have been heard together and are disposed of by this common order. In both these appeals preferred under Clause 10 of the Letters Patent, the assail is to the legal validity and propriety of the order dated 15-4-2002 passed by the learned single Judge in Writ Petition No. 5705 of 1998 and Writ Petition No. 5707 of 1998 respectively, by the aggrieved and dissatisfied appellants/petitioners. The brief resume of facts required to be stated for the disposal of these appeals is that the appellants are the Directors of M/s Bhopal Foods Private Limited, a Company registered under the provisions of Companies Act, 1956 (hereinafter referred to as the 'Company'). The Company, through its four Directors including the appellants, applied to the respondent No. 2 for a loan of Rs. 26,75,000.00 for setting up of a unit of manufacturing of breads. The appellants along with other two Directors stood as guarantors. The aforementioned loan was sanctioned and disbursed by the respondent No. 2 to the Company. The Company became defaulter in repayment of loan in the first instalment itself. Respondent No. 2 served a legal notice dated 28-10-1994 to the Company, its Directors and guarantors to repay the entire outstanding amount due to respondent No. 2, but no response was shown. Thereupon, respondent No. 2, in exercise of the powers conferred u/s 29 of the State Financial Corporation Act, 1951 (hereinafter referred to as 1951 Act') took over the unit on 18-1-1995. Unit was sold to M/s Savitri Foods Private limited for a sum of Rs. 31,00,000.00. As the entire loan was not liquidated in spite of the sale of the unit, steps were taken for realization of the balance by issuing two Revenue Recovery Certificates to respondents No. 4 and 5. In pursuance of the aforesaid certificate the respondent No. 4 sent a proper demand notice to the appellants in Case No. 5/97 qualifying the dues to Rs. 53,30,069.91. In pursuance of the aforesaid certificate the respondent No. 4 sent a proper demand notice to the appellants in Case No. 5/97 qualifying the dues to Rs. 53,30,069.91. Being aggrieved by this action, the appellants invoked the extraordinary jurisdiction of this Court on the ground that provisions of sub-section (2) of section 3 of the Madhya Pradesh Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam (hereinafter referred to as 'the 1987 Adhiniyam') are not applicable against the guarantors in view of section 4(1)(b), and further that the Deputy General Manager cannot be regarded as an officer subordinate to the Collector for the purpose of section 3 of the 1987 Adhiniyam, therefore, he could not have issued the demand notices. The contesting respondents, namely, Nos. 2, 3 and 5 combatted the claim of the petitioners contending inter alia that State Government, vide notification dated 22-3-1996 has conferred the powers of Tahsildar under sections 146 and 147 of the Madhya Pradesh Land Revenue Code, 1959 (for short 'the Code') upon the Deputy General Manager and, in his absence, on the Acting or Incharge Deputy General Manager not below the rank of Assistant Branch Manager of the Madhya Pradesh Financial Corporation for the purpose of realising under sections 155 and 156 of the Code, the arrears accruing u/s 32-G of the 1951 Act and sub-section (2) of section 3 of 1987 Adhiniyam, and hence, the Revenue Recovery Certificates issued under the 1987 Adhiniyam to the Deputy General Manager are unmistakably valid. Learned Single Judge did not accept the contention relating to the jurisdiction of the Deputy General Manager, Madhya Pradesh Financial Corporation and came to hold that he was competent to issue the demand notices. In relation to the other contentions whether sub-section (2) of section 3 of 1987 Adhiniyam can be invoked against the guarantors or not the learned single Judge granted liberty to the appellants to raise such objections before the Specified Officer with further observation that the same shall be decided by the said authority in accordance with law. Questioning the sustainability of the order of learned single Judge, Mr. Mathur, learned senior counsel being assisted by Mr. Questioning the sustainability of the order of learned single Judge, Mr. Mathur, learned senior counsel being assisted by Mr. Sanjay Agarwal, Advocate has strenuously urged that section 3 of 1987 Adhiniyam stipulates that in the case of Corporation or a Government Company, the Managing Director thereof is authorised to send certificate consistent with the provisions of sub-section (2) of section 4 thereof to the Collector of the District in which such person resides or to such other sub-ordinate officer of the Collector as the State Government or the Collector may by an order specify in that behalf, mentioning the sum due from such person and requiring him to recover the sum along with the interest and cost and as the Deputy General Manager is not subordinate to the Collector, the requisition is incompetent. It is also canvassed by him that 1987 Adhiniyam does not authorise the State Government to confer powers of the Collector upon the Deputy General Manager and that being so, the Notification dated 22-3-1996 and the demand notices issued by the officer concerned is non-executable being non est. To appreciate the contention raised before us it would be necessary to extract Notification No. F-2-8-VII-Sec-8/05, dated 22-3-1996 by which Deputy General Manager, Madhya Pradesh Financial Corporation has been specified by the State Government for the purpose of section 3(2) of 1987 Adhiniyam, as under:- Government of India Revenue Department Mantralaya No. F-2-8/VII/Sec-8/95 Bhopal, dated 22-3-1996 NOTIFICATION In exercise of the powers conferred by sub-section (1) of section 24 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959), the State Government hereby confers the power of Tehsildar under sections 146 and 147 of the said Code on Deputy General Managers, and in his absence, the acting or incharge Deputy General Managers, not below the rank of Assistant Branch Managers of the Madhya Pradesh Financial Corporation which they may exercise within their territorial jurisdiction while realising under sections 155 and 156 of the said code the arrears accruing u/s 32G of the State Financial Corporation Act, 1951 and sub-section (2) of section 3 of the Madhya Pradesh Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987. By Order and in the name of the Governor of Madhya Pradesh, (S.R. Contractor) Deputy Secretary to Government of Madhya Pradesh Revenue Department (Emphasis supplied) On a plain reading of the aforesaid notification, it rings as a bell that by this notification the State Government has conferred the powers of the Tahsildar on the Deputy General Managers and in their absence on other specified officers. As the Notification is quite luminous and does not create any trace of ambiguity and if we permit ourselves to say so, it is precise in its nature, we do not perceive any kind of fallacy or error on the point that the Deputy General Manager has not been so authorised. On the contrary, when the notification authorised the said officer it would be deemed that he had the jurisdiction to act in accordance with the provisions of the Adiniyam and for the purpose of the Adhiniyam he would be regarded as the officer subordinate to the Collector. The next contention of Mr. Mathur, learned senior Advocate is that the notification has been issued in exercise of power vested in the Government u/s 24 of the Code and not under sub-section (2) of section 3 of the 1987 Adhiniyam, therefore, the same cannot be taken aid of to issue recovery certificates. In order to appreciate the submission of Mr. Mathur, it is apposite to refer to section 24 of the Code which reads as under:- 24. Conferral by State Government of powers of Revenue Officers on Officials and other persons.- (1) The State Government may confer on any person the powers conferred by or under this Code on any Revenue Officer. (2) The State Government may confer on any Assistant Collector, Tahsildar or Naib-Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade. Learned Senior counsel has also referred to section 3 of the 1987 Adhiniyam which we feel apposite to reproduce:- 3. (2) The State Government may confer on any Assistant Collector, Tahsildar or Naib-Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade. Learned Senior counsel has also referred to section 3 of the 1987 Adhiniyam which we feel apposite to reproduce:- 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 payment of price of goods sold to him on credit or relating to hire-purchase of goods sold to him by the State Government or a Corporation by way of financial assistance; or (B) to any agreement relating to a loan, advance or grant given to him or relating to payment of price of goods sold to him on credit or relating to hire-purchase of goods sold to him by a banking company or a Government Company under a State sponsored scheme or as the case may be, under a socially desirable scheme; or (C) to any agreement relating to a guarantee given by the State Government or a Corporation in respect of a loan raised by an industrial concern; or (D) to any agreement providing that any money payable therounder to the State Government shall be recoverable as arrears of land revenue and such person.- (i) makes any default in repayment of the loan or advance or any instalment thereof; or (ii) having become liable under the conditions or the grant to refund the grant or any portion thereof makes any default in refund of such grant or portion or any instalment thereof; or (iii) otherwise, fails to comply with the terms of the agreement then,- (a) in the case of the State Government such Officer as the State Government may by notification authorise in this behalf; (b) in the case of a Corporation or a Government Company, the Managing Director thereof by whatever name called; and (c) in the case of banking company, the local agent thereof by whatever name called. may send a certificate in such form as may be prescribed, and consistent with the provisions of sub-section (2) of section 4, to the Collector of the district in which such person normally resides or carries on business or owns property, or to such other subordinate officer of the Collector, as the State Government or the Collector may, by an order, specify in this behalf, mentioning the sum due from such person and requesting that such sum due together with the cost of proceedings and interest on the sum due at the rate specified in the agreement, upto the date of recovery, be recovered as if it were an arrear of land revenue. Provided that a certificate under this sub-section may be withdrawn by authority issuing such certificate at any time: Provided further that the cost of proceedings shall always be calculated at the rate of three percent of the principal sum to be recovered. (2) The Collector or his subordinate officer specified under sub-section (1) on receiving the certificate shall take steps to recover the amount stated therein as arrear of land revenue under the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959). (3) No suit for the recovery of any sum due as aforesaid shall lie in a civil court against any person in respect of whom a certificate for recovery of such sum has been issued under sub-section (1); Provided that in computing the period of limitation for institution of suit for the recovery of any such sum, the period during which the recovery is barred under this section shall be excluded. (4) In the case of any agreement referred to in sub-section (1) between any person referred to in that sub-section and the State Government of a Corporation, no arbitration proceedings shall lie at the instance of either party either for recovery of any sum claimed to be due under the said sub-section or for disputing the correctness of such claim: Provided that whenever proceedings are taken against any person for the recovery of such sum he may pay the amount claimed under protest to the officer taking such proceedings, and upon such payment the proceedings shall be stayed and the person against whom such proceedings were taken may make a reference under arbitration agreement or otherwise enforce an arbitration agreement in respect of the amount so paid. (5) Save as otherwise expressly provided in the first proviso to subsection (1) and the proviso to sub-section (4), every certificate issued under sub-section (1) shall be final and shall not be called in question in any original suit, application (including any application under the Arbitration Act 1940) or in any reference to arbitration and no injunction shall be granted by any court or other authority in respect of any action taken or intended to be taken in pursuance of any power conferred by or under this Act. (6) Any amount recovered under this Act shall, notwithstanding anything contained in any other law for the time being in force, be applied in the following manner, namely:- (a) firstly, towards the cost of proceedings to be shared between the State Government and the authority issuing the certificate under sub-section (1), in such manner as may be prescribed; (b) secondly, towards interest to be paid to the authority; (c) thirdly, towards the principal amount due to be paid to the authority; and (d) the balance, if any, as far as possible in accordance with the provisions of section 151 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959). If section 24 of the Code is read in proper perspective, it is quite clear that the State Government has the authority to confer such powers of the Code on any person. This is an enabling provision and no restriction is attached to it. Vide notification dated 22-3-1996 there is conferral of powers of Tahsildar on the Deputy General Manager for the purpose of sections 146 and 147 of the Code. Section 3(2) of 1987 Adhiniyam does not empower the State Government to confer the power of a revenue officer on any other authority. It only states that the Managing Director of the Corporation may send a certificate to the Collector or to such subordinate officer of the Collector as the State Government may by an order specified in this behalf. A person can be specified as an officer subordinate to the Collector for the purpose of section 3(2) of the 1987 Adhiniyam only when he is conferred with the powers of revenue officer subordinate to the Collector. Thus, there can be conferment of power of revenue officer and that can only be done by taking resort to section 24 of the Code. Thus, there can be conferment of power of revenue officer and that can only be done by taking resort to section 24 of the Code. This being the legal position, it was not necessary on the part of the State Government to expressly declare that the notification dated 22-3-1996 is issued in exercise of powers conferred by section 3(2) of the 1987 Adhiniyam. Quite apart from the above, once the power vests on a particular authority, nomenclature does not really affect the same as, that would not be an act by the incompetent authority. In addition to this it can be unequivocally mentioned here that by virtue of issuance of the notification the powers of Tahsildar have been conferred on the authorities and hence, by operation of legal fiction the said authority has become subordinate to the Collector. To elucidate, the State Government taking recourse to section 24 has issued a notification whereby the persons have become the authorities to exercise the powers of Tahsildar and they by deemed fiction become subordinate to the Collector as a result of which no dent is created in the notification and the same is fully applicable. Thus the contention put forth by Mr. Mathur assailing the jurisdiction of the officer, in our considered opinion is sans substance and we have no hesitation in repelling the same and accordingly, we do so. In this context, we may also profitably note that the learned single Judge has referred to the decision rendered in the case of Ravindra Choudhary (Dr.) vs. Shri Shrivastava and others, 2001 RN 102 wherein it has been held that Deputy General Manager, Madhya Pradesh Financial Corporation, as Additional Tahsildar can initiate recovery. We will be failing in our obligation if we do not note another facet of contention raised by Mr. Mathur, learned senior counsel that when the Legislature has specifically appointed the Collector or his subordinate as an authority to discharge the functions u/s 3(2) of the 1987 Adhiniyam, no other person can discharge such function. To buttress his submission he has placed heavy reliance on the decision rendered in the case of M/s Sahni Silk Mills (P) Ltd. vs. Employees State Insurance Corporation, JT 1994(5) SC 11. It is trite law that if the particular thing is to be done in a particular manner, the same should be done in that manner otherwise not to be done at all. It is trite law that if the particular thing is to be done in a particular manner, the same should be done in that manner otherwise not to be done at all. The same is not the position in the case at hand. Here by virtue of law there has been delegation of power and there is nothing fallacious or erroneous in the process of delegation. Hence, the edifice built by Mr. Mathur is bound to collapse and we have no reasons to give acceptance to the same. We have only noted it to reject the same. It has been next contended by Mr. Mathur that appellants are guarantors and they cannot be proceeded against by the authority as they are not covered u/s 3(2) of the 1987 Adhiniyam. It is putforth by him that it was open to the Corporation to proceed against them u/s 31(1)(aa) of 1951 Act but not to take recourse to such procedure. The learned single Judge has not decided the aforesaid facet and granted leave to the petitioners to raise the same before the Recovery Officer. The learned single Judge has referred to the observation made in the case of New Laxmi Oil Mills vs. Bank of India, 1988(2) MPLJ 144. It needs no special emphasis to state here that every authority has the jurisdiction to decide the jurisdictional facet. When the appellants are raising the jurisdictional issue the same can be definitely adverted to by the authority concerned, because the issue of jurisdiction is raised which in the present case a mixed question of fact and law. We do not find any error in the direction issued by the learned single Judge in allowing the appellants to raise the same before the authority before whom the matter is subjudice. Piecemeal hearing of the matter is not appreciated. Thus, we are not inclined to accept the submission of Mr. Mathur that the learned single Judge has erred in law by not exonerating the appellants from initiation of the proceedings as they are not covered by the provision. Lastly, it is submitted by Mr. Mathur, learned senior counsel that the appellants have submitted a proposal for liquidating the debt to the Managing Director, Madhya Pradesh Financial Corporation, but the said prayer has not been heeded to. The learned single Judge in this regard has directed that the proposal shall be considered by the Corporation. Lastly, it is submitted by Mr. Mathur, learned senior counsel that the appellants have submitted a proposal for liquidating the debt to the Managing Director, Madhya Pradesh Financial Corporation, but the said prayer has not been heeded to. The learned single Judge in this regard has directed that the proposal shall be considered by the Corporation. As there is already direction by the learned single Judge, we reiterate the same. In view of the aforesaid discussion, we do not find any substance in both the appeals and, accordingly, they stand dismissed in limine. Final Result : Dismissed