1. Heard Sri Abdul Rasheed, Advocate for petitioner, Sri Vishnu Dev Shukla, Brief Holder for respondents no. 1, 3 and 5, Sri Sharad Tewari, Advocate for respondent no. 2 and Smt. Alka Saxena, Advocate for respondent no. 4.
2. This case is an illustration of high handedness of Government officials and financial institutions to ruin a poor farmer/ Agriculturist by snatching away whatever little he possesses for his sustenance. It demonstrates that once a poor fellow falls in the trap of borrowing a little money from a public sector financial institution, he gets trapped in the iron vice of wrongful demand, erroneous determination of outstanding dues, non acknowledgement of amount paid by him and ultimately goes to the extent of losing whatever little he possess in the name of property, whether moveable and immoveable through process of recovery by duress.
3. It is really unfortunate that in a country boasting of its main vocation as "agriculture", and most of the people are engaged in farming, though constituting small or marginal farmers having small holdings, still after more than six decades, not only find it difficult to arrange their two square meals for family but in the fond hope of development founded on dreamy schemes launched by Government, they ultimately dash their entire hopes and expectations. Many a times property and life also.
4. I would like to first narrate factual matrix of this unfortunate case which has caused an extraordinary and grave injustice to poor petitioner, a small farmer, who fell in the trap of borrowing and consequential unmindful recovery in the hands of respondents no. 1 to 4 which shall demonstrate how the petitioner has been subjected to patent illegal and arbitrary proceedings .
5. The petitioner, Jai Singh, resident of Village Maroofpur, Post Mohammadpur, Tehsil Haidergarh, District Barabanki possessed certain land and for the purpose of cultivation thereof and others, decided to purchase a tractor. He looked towards Union Bank of India Branch at Barabanki for financial assistance and applied for advancement of loan of Rs. 2 lacs in the year 2000. The loan was sanctioned on 12.12.2000. It must have actually been paid later on. It appears that petitioner could not deposit regular installments and committed default. The Bank allegedly issued several notices, i.e., 08.11.2001, 25.01.2002, 19.04.2002, 18.06.2002, 19.09.2002, 20.12.2002 and 11.03.2003. It also appears that a recovery certificate itself was issued by Bank on 26.05.2003 for a sum of Rs. 270606/- plus interest w.e.f. 01.03.2003.
6. The aforesaid recovery certificate could not be executed and in the meantime the Bank also accepted certain payments from petitioner though not constituting regular installments.
7. The Government of India in the meantime came with a debt relief scheme, namely, "Agricultural Debt Waiver and Debt Relief Scheme, 2008" (hereinafter referred to as the "Scheme, 2008") whereunder the petitioner was found entitled for waiver of a sum of Rs. 221017/-. It is admitted that petitioner was entitled for the said benefit and consequently the aforesaid amount was reimbursed to Bank by Government of India and it was adjusted towards the outstanding dues against petitioner vide certificate of waiver dated 18.09.2008 (Annexure-1 to the writ petition). It is admitted by Bank that after the said adjustment only a sum of Rs. 47059/- plus interest w.e.f. 01.04.2008 remained outstanding against petitioner. However, despite having issued certificate of waiver dated 18.09.2008, the Bank issued a recovery certificate for Rs. 211534/-. The exact date of aforesaid recovery certificate has not been stated by any of the parties but this is evident from record that the petitioner when represented that recovery proceedings initiated by respondents no. 1 to 3 for recovering a sum of Rs. 211534/- is illegal, as no such amount was due, the Bank issued a revised recovery certificate on 24.01.2009 mentioning the amount claimed to be recovered from petitioner as Rs. 47059/- plus interest at the rate of 12.50% per annum w.e.f. 01.03.2003 (though in the waiver certificate the balance was Rs. 47059/- plus interest w.e.f. 01.04.2008).
8. The respondents-revenue authorities, however, continued to proceed for recovery of Rs. 2 lacs and odd, attached immoveable property of petitioner and put it for auction by auction notice dated 15.05.2009 notified 18.06.2009 as the date of auction vide Annexure-4 to the writ petition. The petitioner's property namely, Khata No. 27, Gata Nos. 10, area 0.665; 135 Kha, area 0.072; 136 Kha, area 0.026; 183, area 0.080; 212 Ka, area 0.104; 213 Kha, area 0.115; 235 Ka, area 0.054; 242, area 1.099; and, 313 A, area 0.415 in total 2.088 acres was attached vide notice dated 15.09.20-09 and by auction dated 18.06.2009 it was put for auction which included besides the property in Khata No. 27, 29 and 102 measuring total area is more than nine acres.
9. Besides, the Deputy Collector also seized petitioner's Tractor No. HMT -UP41-D-2094 owned by petitioner on 09.06.2009 and proceeded to auction the same.
10. The petitioner has made serious allegations against revenue authorities as also the Branch Manager of Bank in commencing and proceeding to go ahead with aforesaid recovery proceedings by auctioning not only the tractor but also immoveable property for recovery of Rs. 2,11,000/- and odd, though as a matter of fact, the total dues against petitioner was only Rs. 47,000/- and odd. The grievance of petitioner is that none was ready to hear him. The petitioner also sought to raise his grievance by sending representations to Chief Minister and Prime Minister on 05.06.2009 and 10.07.2009 and thereafter filed present writ petition.
11. It is not in dispute that pursuant to order passed by this court on 04.08.2009 the petitioner has deposited Rs. 50,000/- with the Bank on 11.08.2009. By means of supplementary affidavit, the petitioner has also placed on record Bank's letter dated 11.08.2009, informing that total outstanding dues against petitioner were only Rs. 66,100/- against which Rs. 63,823/- were received from Tehsil authorities on 31.07.2009, leaving a balance of Rs. 2277/-, and, by adding counsel's fee of Rs. 3415/- the total dues outstanding are Rs. 5692, hence deposit of Rs. 50,000/- made by petitioner cannot be retained by Bank and it sought to refund the amount of Rs. 50,000/- by banker's cheque No. 15070 with request to petitioner to deposit only Rs. 5692/- and obtain no dues certificate.
12. The respondents no. 1 and 3 have filed a counter affidavit sworn by Vinod Kumar, Deputy Collector Haidergarh, Barabanki, stating that citation was wrongly issued by revenue authorities for recovery of Rs. 2,11,543/- on account of lack of clarification in recovery certificate issued by Bank. As soon as the above mistake was discovered, recovery proceedings in respect to immoveable property of petitioner was deferred and instead of Rs. 2,11,543/- the proceedings continued for Rs. 47059/- only. Since the authorities had withdrawn citation issued for Rs. 2,11,543/- the writ petition has lost cause of action and deserved to be dismissed. It is further stated that in the recovery certificate issued by Bank, at one column Rs. 2,11,543/- was mentioned, and at another Rs. 47059/- was mentioned. The Tehsil authorities, therefore, proceeded to recover Rs. 2,11,543/- and issued citation accordingly. Subsequently, when the mistake was detected and it was found that only Rs. 47059/- and interest thereon was outstanding, the inquiry got conducted through concerned Naib Tehsildar who informed that wrong citation for Rs. 2,11,543/- has been issued though only Rs. 47059/- and interest therein is recoverable. On the aforesaid report of Naib Tehsildar, the Deputy Collector, Haidergarh, passed order on 29.07.2009 not to proceed with auction of immoveable property and recover only Rs. 47059/- alongwith recovery charges. The order dated 29.07.2009 is Annexure-CA-1 to the counter affidavit filed by respondents no. 1 and 3. It is, however, not disputed that Tractor was auctioned on 31.07.2009 for Rs. 63823/- which amount was tendered to the Bank on the same date, i.e., 31.07.2009. It is also stated that as per intimation given by Bank after receipt of Rs. 63823/- from Tehsil authorities, only Rs. 2277/- remain balance and adding interest thereon upto 31.08.2009, recovery charges and counsel's fee, the total comes to Rs. 6693/-. The break up mentioned in Bank's letter dated 08.08.2009, Annexure-CA-2 to the counter affidavit of respondents no. 1 and 3, reads as under:
13. The petitioner filed an application for impleadment of the auction purchaser, respondent no. 5 alleging that from own showing of respondents no. 1 and 3 in their affidavit sworn on 24.08.2009, the Tractor was attached on 09.06.2009 but they have not disclosed any date of auction of Tractor except bare averment that amount received after auction of Tractor, i.e., Rs. 63823/- was tendered to the Bank on 31.07.2009, i.e., four days ahead when this Court passed an interim order dated 04.08.2009. He, therefore, sought amendment of writ petition by adding certain paragraphs, grounds and relief challenging the auction of his Tractor. It is pleaded that entire alleged auction is nothing but a mischief and illegal collusive act of revenue authorities as also the auction purchaser and it is in utter violation of the statute.
14. In the rejoinder affidavit to the counter affidavit of respondents no. 1 and 3 the petitioner has reiterated his allegations of various illegalities on the part of revenue authorities as also the Bank resulting in alleged illegal auction of his Tractor. It is further said that the Tractor has been auctioned on throw away price; due to illegalities committed by respondents the petitioner has suffered a huge loss for not being able to produce his agricultural crops due to seizure and attachment of his Tractor as also the immoveable property. The entire action is nothing but a pre-planned conspiracy of Bank Manager as also the revenue authorities, i.e., Deputy Collector and others and their action is not only illegal but has caused serious loss to petitioner in respect to his property and person, both.
15. Respondent no. 2 has also field a counter affidavit through its Advocate Sri Sharad Tiwari sworn on 09.04.2012. It is clearly stated in para 6 thereof that after extending the benefit of Scheme, 2008 to the petitioner, only a sum of Rs. 47059/- plus interest remained due as on 01.04.2008. Though it is mentioned that besides aforesaid amount recovery charges were also due but it does not appear from the record as to on what basis the recovery charges would have fallen due if no recovery proceedings in accordance with law were ever initiated against petitioner. The allegations against the Branch Manager made by petitioner have been denied but in para 8 it is stated that admitted recovery certificate was issued on 23.01.2009. Then in para 15 it is further stated that another recovery certificate for Rs. 66,100/- was issued on 17.06.2009.
16. From the counter affidavit filed by Bank I find reference of three recovery certificates, first is dated 26.05.2003 for Rs. 2,70,606 plus interest w.e.f. 01.03.2003 vide para 4; second is revised recovery certificate dated 23.01.2009 for Rs. 47,059/- vide para 8; and, third is again a revised recovery certificate dated 17.06.2009 for Rs. 66,100/- vide para 15. Besides above, they have also given the date of seizure of Tractor on 09.06.2009 and date of auction thereof on 31.07.2009 and deposit of Rs. 63,823/- with Bank on the same day, i.e., on 31.07.2009. In para 13 it is stated that re-revised recovery certificate dated 17.06.2009 included interest upto 30.06.2009. A copy of re-revised recovery certificate dated 17.06.2009 is Annexure-CA-1 to the counter affidavit of respondent no. 2 wherein outstanding dues up to 30.06.2009 is shown as Rs. 66,100/- plus interest and recovery charges, the total being Rs. 72,710/-.
17. In the above factual backdrop, this Court would consider, whether recovery initiated against petitioner in the present case resulting in loss of his Tractor for all times to come and deprivation of his immoveable property for certain period preventing him from going ahead with agricultural activities thereon, has any sanctity of law at all, the respondents' action is in conformity with statute or not and whether the fault, if any, is only an unintentional error or is malicious.
18. It is not in dispute that loan advanced to petitioner fell in the category of "agricultural loan". Its recovery is governed by provisions of U.P. Agricultural Credit Act, 1973 (hereinafter referred to as the "Act, 1973"). Section 11-A provides procedure for recovery through Collector and reads as under:
"11-A. Recovery in the case of personal security.--(1) Where any amount of financial assistance is granted by a Bank to an agriculturist and the agriculturist fails to pay the amount together with interest on the due date, then without prejudice to the provisions of Sections 10-B and 11, the local principal officer of the Bank by whatever name called may forward to the Collector a certificate in the manner prescribed, specifying the amount due from the agriculturist.
(2) The certificate referred to in sub-section (1) may be forwarded to the Collector within three years from the date when the amount specified in the certificate fell due.
(3) On receipt of the certificate, the Collector shall proceed to recover the agriculturist the amount specified therein together with expenses or recovery as arrears of land revenue, and the amount due to the Bank shall be paid after deducting the expenses of recovery and satisfying any Government dues or other prior charges, if any.
Explanation.--For the the purposes of this section, the expression "Collector" means the Collector of the district in which the agriculturist ordinarily resides or carries on the activities referred to in clause (a) or Section 2 or where any movable or immovable property of the agriculturist is situate, and includes any officer, authorised by him in that behalf."
19. Though the Bank has referred to recovery certificate issued on 26.05.2003 but it is nobody's case that any such recovery certificate was ever proceeded by revenue authorities against petitioner. It is also not the case of Bank that before issuing such recovery certificate any notice was ever served upon petitioner demanding Rs. 2,70,606/- plus interest from him w.e.f. 01.03.2003. The Court also finds it difficult to understand, how a loan of Rs. 2 lacs sanctioned vide letter dated 12.12.2000 and actually disbursed even thereafter could be swollen to Rs. 2,70,000/- by May, 2003, i.e., within two years and five months. The copy of sanction letter is on record as Annexure-SA-2 to the supplementary affidavit dated 22.06.2012. It shows that petitioner was sanctioned a loan of Rs. 2 lacs at the rate of interest of 12.5% per annum. The aforesaid amount was payable by petitioner in nine years, to be more precise, in 17 equal instalments of Rs. 11,769/- and accrued interest has to fall due in June and December of every years or after marketing of crops, whichever is earlier. The first installment was payable due in December, 2001. The cost of Tractor was shown as Rs. 2,39,500/-. Its date of purchase is not given. The date of actual disbursement of loan to petitioner is also not mentioned anywhere. It could not be clarified to this Court as to how Rs. 2 lacs with interest rate only 12.5% per annum would swollen by more than Rs. 70,000/- within two years and five months from the date of sanction of amount, i.e., 12.12.2000 and not the date of actual disbursement. Unfortunately the date of actual disbursement has not come on record but even if it is treated to be the date of sanction, by no manner of calculation the aforesaid amount could reach to Rs. 2,70,000/- and odd justifying recovery certificate dated 26.05.2003 demanding the aforesaid amount.
20. On the contrary, what this Court finds is that the first installment, as per the sanction letter, as said above, was due in December, 2001 but the Bank alleged to have sent several notices and the first one is dated 08.11.2001. This Court fails to understand when the very first installment was payable only in December 2001, what was the occasion for Bank to issue a notice on 08.11.2001 since nothing could have fallen due on that date. This itself shows a lack of honest and responsible approach on the part of Bank since very inception.
21. Moreover, even if it is treated that petitioner had committed default by not paying any installment upto December, 2002, since the next installment would have fallen due in June, 2003, the compound interest, if calculated at the rate of 12.5% on the loan amount of Rs. 2 lacs, would come around Rs. 50,000/- and odd and by no stretch of imagination can reach to Rs. 70,606/- plus interest w.e.f. 01.03.2002, which has been mentioned by Bank in its counter affidavit. The erroneous and incorrect determination and demand on the part of Bank from the very initial stages thus also stand fortified.
22. The revenue authorities also do not claim to have proceeded to recover Rs. 2,70,000/- and odd on the basis of alleged recovery certificate dated 26.05.2003. No demand or citation to this effect for Rs. 2,70,606/- is shown to have ever been issued and served upon the petitioner. The Bank also accepted subsequent payments thereafter made by the petitioner. When Scheme, 2008 came into effect, the benefit thereof was extended to petitioner vide certificate dated 18.09.2008. The total outstanding dues against petitioner as on 29.02.2008 was found Rs. 2,68,076/- whereagainst Rs. 2,21,017/- was the amount waived leaving balance of Rs. 47059/- as on 31.03.2008. This is evident from Annexure-1 and 2 to the writ petition read cumulatively.
23. The Bank, however, issued a recovery certificate dated 23.01.2009 even before sending letter dated 11.02.2009 to the petitioner and without mentioning any due date, i.e., the date by which petitioner was required to clear balance dues (as is evident from Annexure-3 to the writ petition). The Bank's counter affidavit (para 4) mentions the date of recovery certificate as 23.01.2009 and also gives particulars of amount as Rs. 47059/- plus interest at the rate of 12.5% per annum from 01.03.2003 though from the certificate dated 18.09.2008 (Annexure-1 to the writ petition) it is evident that at the time of giving benefit of Scheme, 2008, the entire outstanding dues as on 29.02.2008 were taken into account and thereafter adjustment was made. This is also fortified from letter dated 11.02.2009 wherein the Bank has said that present outstanding amount is Rs. 47059/- whereupon the interest has to be included w.e.f. 01.04.2008 and recovery charge. Apparently and evidently, even this recovery certificate dated 23.01.2009 did not give a correct amount recoverable from petitioner. It has also wrongly mentioned in clause (v) the amount claimed as fell due on 01.04.2004, though upto 31.03.2008, the entire dues were calculated and adjusted. This recovery certificate and details given therein do not tally with Bank's certificate dated 18.09.2008 (Annexure-1 to the writ petition) and letter dated 11.02.2009 (Annexure-2 to the writ petition).
24. Even the statement of accounts placed before this court by Bank, Annexure-CA-2 to its counter affidavit for the period of 20.03.2005 to 07.04.2012 shows that in March, 2008 after crediting Rs. 2,21,017/- under Scheme, 2008 the only amount outstanding against petitioner was Rs. 47059/-. It is not the case of Bank that any notice as contemplated, demanding Rs. 47059/- and interest thereon was issued to petitioner at any point of time before issuing recovery certificate dated 23.01.2009. In absence of such demand, it could not have been said that petitioner has failed to pay loan upto due date. Similar is the position in respect to subsequent recovery certificate dated 17.06.2009.
25. There are some more startling facts throwing light on the conduct of respondents.
26. The revised certificate admittedly was received by revenue authorities much before June, 2009 having been issued by Bank on 23.01.2009. It has been stated by Deputy Collector that after receiving revised recovery certificate when it was found by Tehsil authorities that wrong citation has been issued, immediately Naib Tehsildar was directed to enquire into matter and submit his report and thereafter on his report the Deputy Collector passed order dated 29.07.2009, not to proceed with auction of immoveable properties to recover only Rs. 47059/- alongwith recovery charges.
27. Be that as it may, it is also evident from record that petitioner's immoveable property was already attached and seized by revenue authorities and they had put it for auction by notice dated 15.05.2009, notifying 18.06.2009 as the date of auction. The property attached by revenue authorities is a large piece of land and it is not their case that the same would not have fetched sufficient amount to satisfy the demand under recovery. Yet they proceeded to attach petitioner's Tractor on 09.06.2009 and went ahead to auction the same on 31.07.2009. This action is wholly beyond comprehension. When immoveable property was already in the hands of revenue authorities and they could have recovered due amount by auction of said property, what was the occasion to proceed to attach petitioner's Tractor thereafter, i.e., on 09.06.2009.
28. Moreover, with regard to date of auction of said Tractor, nothing has been placed on record by revenue authorities to take this Court into confidence to demonstrate that auction was held validly and strictly in accordance with law. Even this has not been informed as to what was the date notified for such auction and in what manner. It is only on 31.07.2009 but abruptly the auction is said to have been made and amount received from auction purchaser has been deposited in Bank on the same date though under the statute, such an amount was liable to be deposited through a Bank Draft. All these facts lead to an inference that respondents have not proceeded in a transparent, valid and just manner. There is something fishy in the matter and their action besides being illegal is also malicious in law. Somebody somewhere was definitely interested to snatch petitioner's property in one or the other way and in this attempt has also succeeded considerably. It is a different thing that this Court shall not let anybody go scot-free without facing the consequences thereof. The extraordinary hurry shown in proceeding when petitioner determined to come to this Court, is also evident from further facts. This writ petition was prepared on 28.07.2009 and notice was served upon Bank's counsel on 29.07.2009 with clear information that it shall be filed in the Court on 30.07.2009. There was some defect reported by Stamp Reporter which was removed but it took about a day, whereafter writ petition could be presented on 31.07.2009 and was heard on 04.08.2009. The Court found it strange that total outstanding dues against petitioner was Rs. 47059/- alongwith interest yet, Tehsil authorities were proceeding to recover more than Rs. 2 lacs from petitioner. It was in these circumstances, the Deputy Collector was summoned before this Court to remain present with record on 24.08.2009. This order was passed after hearing learned Standing Counsel as also the counsel for Bank on 04.08.2009. Now immediately thereafter everything is said to have been finalised resulting in extinction of Tractor in the garb of auction, allegedly held on 31.07.2009, and on that day itself the amount is deposited in petitioner's account in the Bank by Amin though under Rule 30 of U.P. Agricultural Credit Rules, 1975 (hereinafter referred to as the "Rules, 1975") the aforesaid amount could have been sent to Bank only by way of Bank draft and not otherwise.
29. It is really difficult to understand that on the same day auction could have been completed and thereafter Amin could have got the draft prepared and submitted in the Bank.
30. In observing the above this Court finds it prudent to refer the process of attachments and sale of moveable property as prescribed in U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the "Rules, 1952"). Under Act, 1973, dues under Section 11-A can be recovered as "arrears of land revenue" by Collector. Further procedure is not provided. For the purpose of procedure, it is U.P. Zamindari Abolition and Lard Reforms Act, 1950 (hereinafter referred to as the "Act, 1950") and Rules framed thereunder which would apply. This is what was observed by this Court in Ram Pher Yadav Vs. Union Bank Of India and others, 1999(4) AWC 3520.
31. Section 282 of Act, 1950 empowers the Collector to attach and sale moveable property. Rule 254 of Rules, 1952 empowers the Collector or Assistant Collector In-charge of Sub-division to issue process for attachment and sale of moveable property. Rule 257 contemplates issuance of warrant for sale of moveable property in ZA Form 72, specifying the amount for recovery of which sale has been ordered and also to require the property to be sold in default of such amount after lapse of such period as may be specified. It is not disclosed by revenue authorities at all as to when this warrant for sale under Rule 257 was issued by them and what was the period notified to petitioner demanding him to pay entire amount mentioned therein, failing which his moveable property shall be auctioned. These facts were in the knowledge of revenue authorities and they having failed to disclose details thereof, this Court has no option but to draw inference against them adversely to the extent that procedure laid down in statute regarding auction of moveable property has not been followed.
32. Everything appears to have been done in extra haste, may be to justify and save the authorities from an apparent illegal and unauthorised act on their part which they have tried to explain under the pretext of sheer mistake. The distinction in "mistake" and "deliberate defiance" and "illegality" has to be seen from the manner in which the authorities have proceeded in a particular case since it is difficult to otherwise find a positive evidence.
33. The height of irresponsibility and illegality on the part of respondents may further be demonstrated from the fact that Section 11-A confers jurisdiction upon Bank to issue a recovery certificate only when the agriculturist fails to pay the amount due together with interest on the due date. After giving benefit of Scheme, 2008, and recalculating dues, the Bank found balance of Rs. 47059/- only as on 01.04.2008. There is nothing on record to show, when and by which date, the petitioner was required to deposit aforesaid sum of Rs. 47059/- and what was the due date for that purpose. Even thereafter adding amount of interest fell due w.e.f. 01.04.2008 and onwards, there is nothing on record to show that before issuing recovery certificate dated 23.01.2009, any demand was raised to petitioner to pay the said outstanding dues so as to constitute a "due date". In fact after determining outstanding dues of Rs. 47059/- pursuant to Scheme, 2008, though a certificate was issued by Bank to petitioner on 18.09.2008 (Annexure-1 to the writ petition) but neither before that nor after that petitioner was ever required to deposit the aforesaid sum of Rs. 47059/- by a particular date. Hence, there was no occasion to infer that petitioner-agriculturist has failed to deposit outstanding dues by due date entitling the Bank to issue certificate of recovery under Section 11-A of Act, 1973. In the circumstances, since no right or authority accrued to the Bank to issue a recovery certificate under Section 11-A of Act, 1973, not only the recovery certificate but all subsequent proceedings are a nullity in the eyes of law.
34. Thus not only wholly illegal proceedings were initiated against petitioner which have resulted in depriving him of his Tractor, sold unauthorisedely by respondents in a manner which has no sanction in law. It has and must have also caused serious harassment, embarrassment etc. to petitioner and his family in various ways. The petitioner's property has been snatched away and he has been deprived thereof by following a procedure which has no sanction in law. In other words, in an illegal manner, the petitioner has been deprived of his property and, therefore, his constitutional right under Article 300-A has been violated. Besides, by keeping petitioner under threat of coercive method of recovery, his fundamental right to live his life peacefully and with dignity has also been interfered and infringed, violating Article 21 of the Constitution. It has also caused loss to the person like petitioner-agriculturist, in losing his land for certain period, depriving him to grow crops thereat which has caused not only a personal loss to petitioner but a loss to national production, may be to a very little extent, but that is certainly there.
35. The authorities, it appears, have acted with a confidence that whatever they shall be doing, would not fall upon them in any manner. At the best, if a Court of law finds anything wrong, it can/shall only quash their orders and nothing more than that. Their attitude appears to have been not to proceed objectively and honestly in the matter but to somehow or other grab property of petitioner, moveable or immoveable, as the case may be, and subject it to public auction so as to give away on throw away prices.
36. In Delhi Jal Board Vs. National Campaign for Dignity and Rights of Sewerage and Allied Workers and Ors., JT 2011(8) SC 232 the Apex Court has reminded the authority of the Court in a case where fundamental rights of a citizen are infringed with such kind of impunity. It say that the Court possess enough power to take care of victimisation of innocent citizen and compensate him appropriately by passing appropriate orders. The Court said that Article 21 which guarantees right to life and liberty, will be denuded of its significant content if the power of Court is held limited to passing orders of removing Executive's illegal orders/action only and nothing more than that. The Court further said that one of the telling ways in which violation of such right can reasonably be prevented and due compliance with the mandate of Constitution including Article 21 can be secured, is to mulct its violators in payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary. To adopt right to compensation is some palliative for the unlawful acts of instrumentalities, which act or has acted in the name of public interest and which present, for their protection, the powers of the State, as a shield. If civilisation is not to perish in this country as it has perished in some others, it is necessary to educate ourselves into accepting that respect, for the rights of individuals is the true bastion of democracy.
37. In our system, the Constitution being supreme, yet the real power vests in the people of India since the Constitution has been enacted "for the people, by the people and of the people". A public functionary cannot be permitted to act like a dictator causing harassment to a common man and, in particular, when the person subjected to harassment is a poor innocent citizen in the category of farmer/agriculturist. Their plight cannot be allowed to be ignored.
38. The respondents being the State Government, i.e., "State" under Article 12 of the Constitution of India, its officers are public functionaries. As observed under our Constitution, sovereignty vests in the people. Every limb of the constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind the respondents that they are expected to perform in a more responsible and reasonable manner so as not to cause undue and avoidable harassment to the public at large. The respondents have the support of the entire machinery and various powers of the statute. An ordinary citizen or a common man is hardly equipped to match such might of the State or its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impermissible. This may harm the common man personally but the injury to society is far more grievous.
39. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on account of, sometimes, lack of resources or unmatched status which give the feeling of helplessness. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match inaction in public oriented departments gets frustrated. It erodes the credibility in the system. This is unfortunate that matters which require immediate attention are being allowed to linger on and remain unattended or proceed in a wholethrough illegal manner.
40. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action of administrative authority but where it is found that the exercise of power is capricious or other than bona fide, it is the duty of the Court to take effective steps and rise to the occasion otherwise the confidence of common man would shake. It is the responsibility of the Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain the arbitrary and arrogant unlawful inaction or illegal exercise of power on the part of the public functionaries.
41. Commenting against and upon such harassment of a comman man, (referring to observations of Lord Hailsham in Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027 and Lord Devlin in Rooks Vs. Barnard and others 1964 AC 1129) the Apex Court in Lucknow Development Authority Vs. M.K. Gupta JT 1993 (6) SC 307 said:
"An Ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law....... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it...........Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous." (para 10)
42. The above observation as such have been reiterated in Ghaziabad Development Authorities Vs. Balbir Singh JT 2004 (5) SC 17.
43. Similarly in Registered Society Vs. Union of India and Others (1996) 6 SCC 530 the Apex court said:
"No public servant can say "you may set aside an order on the ground of mala fide but you can not hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary".
44. In Shivsagar Tiwari Vs. Union of India (1996) 6 SCC 558 the Court said:
"An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will who did not soon find that he had no end but his own profit."
45. In Delhi Development Authority Vs. Skipper Construction and Another AIR 1996 SC 715, the Court has held:
"A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."
46. Though petitioner has levelled serious allegations against Branch Manager about demand of money etc., which I find, have not been substantiated but that by itself would not leave the matter hereat for the reason that an act, which is in the teeth of procedure prescribed in law and can be said to be unauthorised and illegal, itself would justify an inference that it is actuated for something other than bona fide, if not in fact, then in law, on the part of authorities concerned. In other words, it is a malicious exercise of power, a "malice in law", if not "malice in fact".
47. The Apex Court has summarised "malice in law" in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
48. The Apex Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:
"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
49. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :
"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
50. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under:
"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
51. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:
"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."
"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
52. In brief malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. [See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198].
53. It also answers description of word "corruption" which has taken various shades in our system. In general the well accepted meaning of corruption is the act of corrupting or of impairing integrity, virtue, or moral principle; the state of being corrupted or debased; lost of purity or integrity; depravity; wickedness; impurity; bribery. It further says, "the act of changing or of being changed, for the worse; departure from what is pure, simple, or correct; use of a position of trust for dishonest gain."
54. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt.
55. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so." While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely."
56. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is a specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.
57. We can look into it from another angle. Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms we can say that corruption develops a range bound field of behaviour, attitude and beliefs.
58. Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty grows darker, and rich become richer.
59. It is not that the Apex Court is oblivious of the situation at ground level. It had also occasion to comment thereon time and again. In Secretary, Jaipur Development Authority Vs. Daulat Mal Jain, 1997 (1) SCC 34:
". . . . When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as 'corruption'."
60. In High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil, 1997(6) SCC 339, the Court held:
"Corruption, appears to have spread everywhere. No facet of public function has been left unaffected by the putrefied stink of 'corruption'. 'Corruption' thy name is depraved and degraded conduct...... In the widest connotation, 'corruption' includes improper or selfish exercise of power and influence attached to a public office."
61. Again the Court in B. R. Kapur Vs. State of T.N., 2001(7) SCC 231 said:
". . . . scope of 'corruption' in the governing structure has heightened opportunism and unscrupulousness among political parties, causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions often without the popular mandate."
62. In State of A.P. Vs. V. Vasudeva Rao, 2004 (9) SCC 319 the Court took judicial notice of this epidemic and said:
". . . The word 'corruption' has wide connotation and embraces almost all the spheres of our day-to-day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations."
63. The petitioner's Tractor which has already been sold long back, mere restoration thereof, after almost three years, would not restore the situation back to petitioner since depreciation and deterioration of something like Tractor is very fast and has its own impact. This Court finds it really very hard and disheartening that the respondents holding responsible offices could proceed in such an illegal manner, that too with impunity, without showing any compassion and heart to the helplessness of petitioner, causing virtually state of ruination to him.
64. It is well settled that a person who seeks equity must come with clean hands and do equity. Similarly it applies equally to respondents also when they come to the Court to defend their action.
65. In Gurpal Singh Vs. State of Punjab and another, AIR 2005 SC 2755 it was held that the Court must do justice by promotion of good faith and prevent law from crafty invasion. No litigant has a right to unlimited draught on the Courts equity and good conscious. The observations though made in a different context but in principle, they apply to the facts of this case also. In my view here is a case which deserve to be allowed with exemplary costs so that it may act deterrent to prevent others not to behove in the similar fashion and may encourage justice to poor and helpless people of this motherland.
66. In the result, the writ petition is allowed. The entire recovery proceedings initiated against petitioner in respect of loan in question are hereby quashed.
67. The petitioner shall be entitled to costs, which I quantify to Rs. 10,00,000/- (Ten lacs), 50% whereof shall be borne by Bank and rest by revenue authorities and State. In case the amount of cost is not paid by respondents, as directed above, within three months from today, after obtaining a certificate from Registrar of this Court on making an application, the said amount shall be recovered as arrears of land revenue by the Collector concerned.
Order Date :- 18.07.2012 AK/Akn