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2010 DIGILAW 1047 (MP)

Sadhna Chaurasia v. Punjab National Bank

2010-10-13

ALOK ARADHE, S.R.ALAM

body2010
ORDER S.R. Alam, C.J.-- 1. This intra-Court appeal preferred under section 2 (1) of the Madhya Pradesh Ucchha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 arises out of order dated 4.10.2007 passed by learned Single Judge in Civil Petition No. 27997/2003. 2. Facts leading to filing of the instant appeal, briefly stated, are that the respondent No.1 sanctioned a loan to the tune of Rs. 1.5 lacs to the appellant for purchase of Tractor & Trolley. The appellant mortgaged the land admeasuring 5.70 hectares situated at Village Badikheri, District Mandla with the respondent No.1 by way of security for loan. The appellant committed default in repayment of the amount of loan as a result of which proceedings were initiated for recovery by the respondent No.1-Bank. Consequently, Revenue Recovery Certificate (RRC) was issued on 17.12.1996 under section 3 of the Madhya Pradesh Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987 (hereinafter referred to as 'the 1987 Act') for recovery of amount of Rs.3,19,289/- together with interest. Aggrieved appellant filed an objection to RRC on the ground that proceedings in question since have been initiated beyond the period of limitation as loan was taken by the appellant on 27.3.1992 and RRC was issued on 27.12.1996 hence the same being time barred could not be initiated. The objection preferred by the appellant was rejected by Naib Tahsildar and warrant of attachment of the property was issued. The said order was challenged by the appellant by filing a revision before the Collector. The Collector vide order dated 30.1.2001 allowed the revision preferred by the appellant and remitted the matter to the Tehsildar to decided the objection afresh. In compliance of the order of remand passed by Collector, the Tehsildar once again decided the objection preferred by the appellant and rejected the same vide order dated 8.3.2001. 3. Being aggrieved by the aforesaid order the appellant preferred an appeal under section 44 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code') before the Sub-Divisional Officer. The Sub-Divisional Officer vide order dated 30.5.2001 rejected the appeal preferred by the appellant on the ground that the same is not maintainable. The order passed by the Sub-Divisional Officer was challenged by the appellant in an appeal before the Commissioner. The Commissioner vide order dated 24.8.2001 affirmed the order passed by the Sub-Divisional Officer. 4. The Sub-Divisional Officer vide order dated 30.5.2001 rejected the appeal preferred by the appellant on the ground that the same is not maintainable. The order passed by the Sub-Divisional Officer was challenged by the appellant in an appeal before the Commissioner. The Commissioner vide order dated 24.8.2001 affirmed the order passed by the Sub-Divisional Officer. 4. The appellant challenged the validity of the order dated 24.8.2001 passed by the Commissioner by filing a revision before the Board of Revenue. The Board of Revenue allowed the revision preferred by the appellant and set aside the sale conducted in pursuance of RRC on the ground that the same is violative of proviso to section 147 of the Code. The Board of Revenue further held that several irregularities were committed while conducting the sale of the land belonging to the appellant. Accordingly, the same was set aside. 5. The respondent No. 1 challenged the order passed by the Board of Revenue in writ petition, namely, W.P. No. 27997/2003. The learned Single Judge vide order dated 4.10.2007 allowed the writ petition preferred by the respondent No. 1-Bank. It was held that 1987 Act is a complete Code in itself which provides for machinery of recovery of loan by adopting the procedure prescribed under Rule 5 of the 1988 Rules framed under the Act. Therefore, the provisions of section 147 of the Code will have no application to the proceeding initiated under the 1987 Act. It was further held that the proceedings for recovery were initiated against the appellant within a period of limitation. Accordingly, the order passed by the Board of Revenue was set aside. 6. Shri Vivek Rusia, learned counsel for the appellant contended that under section 3 (B) of the 1987 Act proceedings could be initiated for recovery only if the amount of loan was advanced under the State sponsored scheme or under socially desirable scheme. Since the loan advanced to the appellant does not fall in either of the aforesaid categories, the proceedings for recovery of the amount of loan could not have been initiated under the provisions of 1987 Act. Since the loan advanced to the appellant does not fall in either of the aforesaid categories, the proceedings for recovery of the amount of loan could not have been initiated under the provisions of 1987 Act. It was further contended that Rule 5 of M.P. Lok Dhan (Shodhya, Rashiyon Ki Vasuli) Niyam, 1988 (hereinafter referred to as 'the 1988 Rules'), the Recovery Officer is under an obligation to follow the same procedure for recovery of amount as laid down under the Code and, therefore, the provisions of the Code have been incorporated by reference and consequently the order passed in the proceedings for recovery of the amount under the 1987 Act is subject to appeal and revision under the provisions of the Code. Learned Counsel has drawn our attention to section 56 of the Code and has contended that under section 56 of the Code the expression "order" means the formal expression of the decision given by the Board or a Revenue Officer in respect of any matter in exercise of his powers under this Code or any other enactment for the time being in force, as the case may be. It has further been contended that in view of section 147 of the Code, since the appellant held less than 6 hectares of land the same could not have been auctioned. It has further been contended that proceedings for auction of land belonging to the appellant suffers from several irregularities. It was further argued that appeal under section 2 (1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order is maintainable. In support of his submission learned counsel has placed reliance on the decisions reported in Nagpur Improvement Trust v. Vasantrao and others, (2002) 7 SCC 657 . Amhati Narasayya v. M. Suhha Rao and another, AIR 1990 SC 119 and MMTC Limited v. Commissioner of Commercial Tax and other, (2009) 1 SCC 8 and State of M.P. v. M/s. Triyug Talkies and another, 1999 RN 223. 7. On the other hand, Shri Rajesh Maindiretta, learned counsel for the respondent No. 1 while passing the submission made on behalf of the petitioner submitted that in exercise of powers under section 2(1) of the 1987 Act the State Government has issued a notification dated 13.9.2000 by which several schemes have been declared as "Socially Desirable Schemes". 7. On the other hand, Shri Rajesh Maindiretta, learned counsel for the respondent No. 1 while passing the submission made on behalf of the petitioner submitted that in exercise of powers under section 2(1) of the 1987 Act the State Government has issued a notification dated 13.9.2000 by which several schemes have been declared as "Socially Desirable Schemes". A scheme under which any Banking Company, or a Government Company/Corporation advances loans for development of land, creation and use of irrigation and use of irrigation facilities and purchase of inputs and implements for promotion of agriculture, fisheries, poultry, dairy and allied sector, have been declared as "Socially Desirable Scheme" under the notification. Therefore, proceedings against the appellant were rightly initiated under section 3 of the 1987 Act as the loan was advanced to the appellant under "Socially Desirable Scheme". It has been further contended that 1987 Act is a self contained Code and the orders passed therein arc not subject to appeal and revision under the provisions of the Code. It has further been submitted that the loan was advanced to the appellant on 31.3.1993 and on 16.5.1996, the appellant acknowledged her liability to pay the loan. Since the property was mortgaged with the respondent No. 1, therefore, period of limitation for initiating recovery proceeding is 12 years and the proceedings for recovery of the amount have been initiated within the period of limitation. Learned counsel while referring to section 165 (9-b) of the Code has contended that the land held by the appellant could he auctioned for recovery of the amount which was advanced to the appellant. In support of his submissions learned counsel has placed reliance on the decisions of this Court reported in Manharlal Uttamchand Awal v. State of M.P. and others 1978 JLJ 89 = 1978 MPLJ 113 (FB). Rewa Sidhi Gramin Bank v. Ramniwas Agrawal, 2002 (5) MPLJ 462. 8. Shri Ashok Lalwani, learned counsel for the respondent No.4 submitted that respondent No.4 is a bonafide purchaser for a valuable consideration. The appellant is a defaulter and did not deposit the amount of loan. Only the amount of Rs. 1.96 lacs was deposited in view of the interim order passed by this Court in writ appeal. 8. Shri Ashok Lalwani, learned counsel for the respondent No.4 submitted that respondent No.4 is a bonafide purchaser for a valuable consideration. The appellant is a defaulter and did not deposit the amount of loan. Only the amount of Rs. 1.96 lacs was deposited in view of the interim order passed by this Court in writ appeal. The order which has been impugned in the instant appeal has been passed by the learned Single Judge in exercise of powers under Article 227 of the Constitution of India and, therefore, appeal under section 2 (1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is not maintainable. 9. We have considered the submissions made on both sides. In our view, in the facts of the case and the controversy involved following issues arise for consideration in the instant appeal : (i) Whether the instant writ appeal preferred by the appellant under section 2 (1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is maintainable? (ii) Whether the provisions of 1987 Act can be invoked for recovery of an amount of loan against the appellant? (iii) Whether the order passed under the provisions of 1987 Act is subject to appeal and revision under the provisions of the Code? (iv) Whether the land held by the appellant, which admeasures less than 6 hectares and is situated in scheduled area, can be sold in an auction under the provisions of 1987 Act, in view of section 147 of the Code? (v) Whether proceedings for auction are legal and valid? 10. We shall proceed to deal with the issues in seriatim. The Full Bench of this Court in Dr. Jaidev Siddha and others v. Jaiprakash Sidha and others, 2007 (3) JLJ 151 = ILR (2007) MP 1030, after taking note of several decisions of the Supreme Court in Paragraph 17 of the order held that while dealing with the question of maintainability of an appeal from an order passed by learned Single Judge, the pleadings in the writ petition, nature of order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective in the constitutional context are to be seen. Merely, because in a writ petition and order emerging from the Inferior Tribunal of Subordinate Courts is challenged it cannot be treated to be a petition under Article 227 of the Constitution of India. It has further been held that a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed by the Subordinate Court. Thus, it cannot be put in a straitjacket formula that any order of learned Single Judge that deals with an order arising from an Inferior Tribunal or the Subordinate Court is an order under Article 227 of the Constitution of Indian and not an order under Article 226 of the Constitution. It has further been held that it would not be an overemphasis to state that an order in a writ petition can tit into the subtle contour of Article 226 and 227 of the Constitution in a composite manner and they can coincide, co-exist, overlap and imbricate. Similar view was expressed by the majority in a decision by the Special Bench reported in Manoj Kumar v. Board of Revenue and others 2008 (1) JLJ 76 = AIR 2008 MP 22 . 11. From perusal of the writ petition we find that it has been preferred under Article 226 as well as Article 227 of the Constitution of India in which respondent No. 1 had sought the writ of certioriari for quashing of the order dated 24.6.2003 passed by the Board of Revenue. The respondent No. 1 had also sought a declaration that the auction of the agricultural land of the appellant by the Tehsildar be held as illegal and invalid. Learned Single Judge vide order dated 4.10.2007 quashed the order passed by the Board of Revenue. Thus, while, deciding the writ petition the learned Single Judge has issued a writ of certiorari. A writ of certiorari can also be issued in exercise of powers under Article 226 of the Constitution of India. We are supported in our view by a division Bench decision reported in Ramanuj Tiwari v. M.P. State Co-operative Tribunal 2008 RN 175 = ILR (2008) MP 216, wherein the Division Bench of this Court has held that an error of law made by the Tribunal can be connected by the High Court under Article 226 of the Constitution of India. The Division Bench while arriving at the aforesaid conclusion has placed reliance on the decision of the special Bench of this Court in case of Manoj Kumar (supra). Thus, for the aforementioned reasons we hold that the order passed by the learned Single Judge in exercise of powers under Article 226 of the Constitution and, therefore, an appeal against the said order is maintainable under section 2(1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 12. Now, we may advert to the second issue, i.e. whether the provisions of 1987 can be invoked for recovery of amount of loan against the appellant. The Madhya Pradesh Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987 is an Act to provide for the speedy recovery of certain classes of dues payable to the State Government, Government Companies and certain categories of Corporation and Banking Companies and for matters connected therewith. Section 2 (i) of the Act defines the expression "Socially Desirable Scheme" to mean a scheme notified as such by the State Government under which a banking company advances money to any person by way of loan. In exercise of powers under section 2 (i) of the Act the Stare Government has issued a notification dated 13.9.2000 by which certain schemes have been defined as "Socially Desirable Schemes". The relevant extract of the notification is quoted below for the facility of reference:- "All Schemes under which any Banking Company or a Government Company/Corporation advances loans for/to- (a) Development of land, creation and use of irrigation facilities and purchase of inputs and implements for promotion of agriculture, fisheries, poultry, dairy and allied sector." 13. Thus, in the instant case, admittedly the loan was advanced to the appellant for purchase of a Tractor-Trolley. The Tractor-Trolley would fall within the expression "inputs and implements for promotion of agriculture". Therefore, in view of preceding analysis it can safely be held that the loan was advanced to the petitioner under "Socially Desirable Scheme" and, therefore, under section 3 (B) of the 1987 Act the proceedings for recovery of the amount can be initiated against the appellant under the provisions of 1987 Act. 14. Now, we are coming to the third issue, as to whether the order passed under the provisions of 1987 Act is subject to appeal and revision under the provisions of the Code. 14. Now, we are coming to the third issue, as to whether the order passed under the provisions of 1987 Act is subject to appeal and revision under the provisions of the Code. Under section 3 of the 1987 Act the dues mentioned therein case be recovered as arrears of land revenue. Section 3 (1) provides that where any person is a party to any agreement mentioned in clauses (A), (B), (C) and (D) of section 3 and if he fails to comply with the terms of the agreement then a certificate in such form as may be prescribed may be sent to the Collector and Collector may by an order specify in this behalf mentioning the sum due from such person and requesting that such sum 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. Thus, for limited purpose of recovery of amount a legal fiction has been created and scope and ambit of legal fiction has to be confined to only for the purposes of recovery of amount. It is well settled in law that in construing a legal fiction it is not to be extended beyond the purpose for which it is created. Reference in this connection may be made to decisions of Supreme Court in Her Highness Maharani Mandalsa Devi and others v. M. Ramnarain Private Limited and others, AIR 1965 SC 1718 , Raymond Limited and another v. State of Chhattisgarh and others 2007 (I) BLJ 181 = (2007) 3 SCC 79 , R. Kalyani v. Janak C. Mehta and others, (2009) 1 SCC 516, Raj Kumar v. State of (NCT of Delhi) and another, (2009) 6 SCC 72 . Sub-section (2) of section 3 of the 1987 Act provides that the Collector or his subordinate officer specified under sub-section (1) on receiving the certificate shall take steps to recover the amounts as arrears of land revenue, under the Code. Thus, conjoint reading of provisions of sub-section (1) and (2) of section 3 of 1987 Act reveals that the amount due as provided under section 3 (1) can be recovered in the manner as provided in Code as if it is an arrear of land revenue. Thus, conjoint reading of provisions of sub-section (1) and (2) of section 3 of 1987 Act reveals that the amount due as provided under section 3 (1) can be recovered in the manner as provided in Code as if it is an arrear of land revenue. Rule 2 (e) of 1988 Rules defines the expression "Recovery Officer" to mean an official designated by the State Government or the Collector to recover the amounts mentioned in the Recovery Certificate in accordance with the provisions of sub-section (2) of section 3 of the Act. Rule 5 of 1988 Rules provides that Recovery Officer shall follow the same procedure for issue of process and conduct of distrait proceedings as laid down under the Code and the rules made thereunder. The 1987 Act is a Special Act and is complete Code in itself. 15. Thus, only the procedure prescribed for recovery of the amount as arrears of land revenue under the provisions of Code has been incorporated by reference into the provisions of the 1987 Act. There is no reference to any other provision of Code in the 1987 Act. When certain provisions of the previous Act have been incorporated into the subsequent Act, no other provision can be deemed to be incorporated in the subsequent Act to which reference has not been made. Our view also finds support from the decision of the Supreme Court in Mahindra and Mahindra Ltd. v. The Union of India and another, AIR 1979 SC 798 . Similar view was taken in M/s. Gimar Traders v. State of Maharashtra and others AIR 2007 SC 3180 . Thus, merely because the Recovery Officer is required to follow the procedure prescribed under the Code as arrears of land revenue it cannot be said that order passed by the Recovery Officer shall be subject to appeal and revision under the provisions of the Code. 16. There is yet another reason for holding that the provisions of appeal and revision as provided under the Code would not be applicable in case of an order passed under the provisions of the Act 1987 Act. The Full Bench of this Court in Manharlal Uttamchand Awal (supra), held that "arrear of land revenue" is distinct and separate from "money recoverable as an arrear of land revenue". The Full Bench of this Court in Manharlal Uttamchand Awal (supra), held that "arrear of land revenue" is distinct and separate from "money recoverable as an arrear of land revenue". The learned Single Judge of this Court in Ramniwas Agarwal (supra), has also taken a view that 1987 Act is special Act and no right of appeal or revision has been conferred under the 1987 Act and the order passed by the Recovery Officers is final. Reliance placed by learned Counsel for appellant on decision of this Court in Triyung Talkes (supra), is of no assistance to the appellant. In aforesaid case this Court was dealing with the provisions of M.P. Entertainments Duty and Advertisement Tax Act, 1936. Section 4-D of the 1936 Act provided for an appeal to the Commissioner of Revenue decision against the order of penalty passed by an officer under section 4-C of the 1936 Act. In that context, by taking into account section 56 of the Code, learned Singe Judge of this Court held that order passed by Commissioner in appeal, would be subject to revision under the Code. In the case at hand provisions of the 1987 Act do not provide for any appeal against order passed under the 1987 Act. Therefore, decision in Triyug Talkes (supra), is not applicable to obtaining factual matrix of the case. Thus, for the aforementioned reasons we hold that the order passed by the Revenue Officer under the 1987 Act is not subject to appeal and revision as provided under the provisions of Code. 17. The next issue which arises for consideration is whether the land held by the appellant which admeasures less than 6 hectares and is situated in scheduled area can be sold in an auction under the provisions of 1987 Act, in view of section 147 of the Code. Second proviso to section 147 of the Code provides that land admeasuring six hectares or less than six hectares of land in the scheduled area cannot be attached and sold for recovery of arrear of land revenue. Second proviso to section 147 of the Code provides that land admeasuring six hectares or less than six hectares of land in the scheduled area cannot be attached and sold for recovery of arrear of land revenue. However, section 165 (9-b) of the Code reads as under:- "(9-b) Nothing in this section shall prevent a Bhumiswami from transferring any right in his land to secure payment of an advance made to him by a Commercial Bank for purpose of agriculture or improvement of holding or shall affect the right of any such Bank to sell such right for the recovery of such advance." Thus, from perusal of section 165 (9-b) of the Code it is clear that Nationalized Bank can recover its dues by selling the mortgaged agricultural property. In view thereof, the issue No.IV has to be answered in the affirmative, i.e., against the appellant. 18. Now, we may come to the last issue, i.e., whether the auction proceedings are legal and valid. Learned Single Judge has recorded finding that since the property was mortgaged with the bank, therefore the limitation for initiation of proceeding for recovery would be 12 years. Admittedly, in the instant case the loan was sanctioned on 27.3.1992 and the appellant acknowledged the liability to repay the loan on 16.5.1996 and on 27.12.1996 Revenue Recovery Certificate was issued. Therefore, contention of the appellant that the proceedings were initiated beyond the period of limitation cannot be accepted. Similarly, the contention of the appellant that though warrant of attachment for movable property held by the appellant was sold in the auction and, therefore, the contention that process of auctions suffers from illegality cannot be accepted for the reason that while deciding the objection pursuant to the order passed by the Collector, the Tehsildar has directed to issue fresh warrant of attachment. Thus, the proceedings initiated for recovery of the amount of loan do not suffer from any infirmity. 19. For the aforementioned reasons, we do not find any merit in the writ appeal. The same deserves to and is hereby dismissed.