Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1403 (GAU)

Ezahar Akhtar (Md. ) v. Union of India

2017-11-02

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. K.N. Choudhury, learned Senior counsel for the petitioner. Also heard Mr. B Kalita, learned Senior counsel for the respondent No. 4, being the State Bank of India. By the Office note dated 10.08.2016, notice upon the respondent Nos. 2, 3, 5, 6, 7, 8, 9, 10 and 11 were deemed to have been served. Inspite of such service of notice being accepted, none appears for the said respondents. It is also noticed that while the respondent Nos. 2 and 3 are the respective authorities of the Debt Recovery Tribunal, (for short, DRT), Guwahati, the respondent Nos. 5 to 11 are persons involved in the proceeding before the DRT, Guwahati in Appeal No. 3/2007, which is also numbered as OA No. 74/1997. As the issue involved in this writ petition does not per se violate any legal right of the said respondent Nos. 5 to 11 nor does it matter to the DRT, Guwahati in any manner, this Court deems it appropriate that the matter be proceeded in the absence of the said respondents. 2. The petitioner is the owner and possessor of a plot of land measuring 2 kathas 5 lechas covered by Dag No. 2736 of KP Patta No. 915 in village Tinsukia Town, 1st Block (2) under Tinsukia Mouza, a detailed description of which has been provided in the schedule to the writ petition. It is also the case of the petitioner that they are the owners and possessor of the aforesaid land for the last 45 years. 3. In the last part of December, 2006, the petitioner came to know that the said land of his was put up in an auction pursuant to certain proceeding of the DRT at Guwahati for realization of debt from an entity which is arrayed as the respondent No. 5 in the present writ petition. It was also known that the said auction had taken place pursuant to a proceeding of the DRT in OA No. 74/1997. 4. It is the case of the petitioner that he was neither a party in the said proceeding in OA No. 74/1997 and according to him, the said auction of his land is, prima facie, illegal and not sustainable. 4. It is the case of the petitioner that he was neither a party in the said proceeding in OA No. 74/1997 and according to him, the said auction of his land is, prima facie, illegal and not sustainable. It is noticed that by the order dated 26.06.2007, the aforesaid land of the petitioner along with land of some other persons had been put up for auction. It is clarified by the learned counsel for the petitioner that the petitioner was not aware that the land of his has been put up for auction. The petitioner, accordingly, on coming to know of the auction had filed a petition before the learned Recovery Officer which is numbered as Pet No. 32/2007 for setting aside the auction sale and further it was brought to the notice of the Recovery Officer of the DRT that the land of the petitioner which was put up for action is neither a part of the OA proceeding before the DRT, Guwahati nor the petitioner is in any manner connected with such loan pursuant to which such proceeding was initiated. 5. By the order dated 26.06.2007, the aforesaid petition of the petitioner was rejected by the Recovery Officer on the ground of delay in filing the petition without appreciating the contentions raised therein. 6. Against the order dated 26.06.2007 of the Recovery Officer, an appeal was moved by the petitioner before the DRT, Guwahati, which was finally considered by the order dated 22.06.2009. By the said order, the DRT, Guwahati had rejected the appeal of the petitioner on the sole ground that the petitioner is not a certificate debtor, therefore, he has no such right to question the proceeding. Being aggrieved the petitioner has filed this writ petition. 7. On an overall consideration of the matter, it is the specific case of the petitioner that the land, in question, is his own private land, which he has owned and possessed for the last 45 years. In order to involve any land in a debt recovery proceeding and further to put the same in an auction, can only be made in respect of a land which may belong to either a loanee, who had obtained loan from a financial institution or that of the guarantor who had guaranteed such loan. In order to involve any land in a debt recovery proceeding and further to put the same in an auction, can only be made in respect of a land which may belong to either a loanee, who had obtained loan from a financial institution or that of the guarantor who had guaranteed such loan. Other than the aforesaid two situations, no land of any other person can be made subject matter of a proceeding in a DRT. It is possible that the land of the petitioner may have been included in the process due to some mistake, but at the same time, once a mistake has been brought to the notice of the DRT, this Court is of the considered view that it is the bounden duty of the DRT to give a due consideration to it and arrive at a conclusion of its own as to whether the land, in question is involved in the loan process in any manner. When a land of another person without being involved in a loan process has been made subject matter in the proceeding at DRT and an application is filed immediately upon coming to know about it, there cannot be any question of any delay in preferring the application nor there can be any question that the said land owner must be a certificate debtor in the DRT. The approach of the DRT in considering the petition of the petitioner is deprecated and the DRT being a quasi-judicial forum, a more rational and logical approach is expected. 8. Any person who is an owner and possessor of a land has a legal right that he cannot be deprived of the land without following due procedure of law. Involving the land of the petitioner in DRT proceeding of some other person, where he is neither the loanee nor a guarantor cannot be construed to be a proceeding by which he can be validly deprived of his right to his land. 9. For all the aforesaid reasons, the conclusion of the Recovery Officer in his order dated 26.06.2007 showing that there is a delay in filing the petition by the petitioner and further the conclusion of the DRT in its order of 22.06.2009 that the petitioner is not a certificate debtor and, therefore, he has no right to question the proceeding is found to be arbitrary and without any application of mind. 10. 10. It is also noticed that the land of the petitioner was sought to be put up in auction on 22.12.2006 and it was on the very date, when the petitioner came to know about the auction had filed the petition No. 32/2007 before the Recovery Officer for appropriate order. In such view of the matter, there cannot be any delay in preferring the said petition on the part of the petitioner. 11. Secondly, when the petitioner is not involved in the loan recovery process, either as a loanee or as a guarantor, there cannot be any question of there being any recovery certificate in his favour so as to entitle him to approach the DRT. 12. In such view of the matter, in the interest of justice, it is ordered that the land of the petitioner measuring 2 kathas 5 lechas covered by Dag No. 2736 of KP Patta No. 915 in village Tinsukia Town, 1st Block (2) under Tinsukia Mouza, which is bounded by North: Sri Sarwan Kumar Rajak, South: Smti Badrun Nessa, East: Sain-Bari, West: Sarap Bhati Road shall be excluded from the proceeding of the DRT in OA No. 74/1997 and it is directed that the Recovery officer shall not put the said land of the petitioner in any auction pursuant to the proceeding in the aforesaid OA. 13. It is accordingly, ordered that the order dated 22.06.2007 of the Recovery Officer passed in OA No. 74/1997 confirming the auction is also set aside in respect of the aforementioned scheduled land of the petitioner and the respondent authorities shall jointly and severely handover the land, in question, of the petitioner forthwith with full right, title and interest. It is, however, provided that the DRT proceeding in OA No. 74/1997 in respect of others shall continue as per law. In terms of the above, this writ petition stands disposed of.