IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.21984 OF 2018 (GM-DRT) BETWEEN:
SRI. H.M. MANCHE GOWDA S/O. SRI. MANCHE GOWDA AGED ABOUT 43 YEARS R/AT. HULIVANA VILLAGE KERAGODU HOBLI MANDYA TALUK MANDYA DISTRICT – 571401.
(By Mr. D.R. RAVISHANKAR, ADV., FOR Mr. B. PRASANNA KUMAR, ADV., FOR M/S. PRASANNA & SHARIFF LAW CHAMBERS) AND:
THE CORPORATION BANK MANDYA BRANCH K.R. ROAD, VIDYA NAGARA MANDYA - 571401.
REP. BY ITS AUTHORIZED OFFICER. (By Mr. V.B. RAVISHANKAR, ADV.) - - -
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 21.4.2018 PASSED IN S.A.NO.17/2018 ON THE FILE OF THE DEBT RECOVERY TRIBUNAL-I BENGALURU VIDE ANNEX-A BY ISSUE OF WRIT OF CERTIORARI & ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
RDER Mr.Prasanna Kumar, learned counsel for the petitioner.
Mr.V.B.Ravishankar, learned counsel for the respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 21.04.2018 passed by the Debt Recovery Tribunal (hereinafter referred to as ‘Tribunal’ for short), Bangalore.
4. Facts giving rise to the filing of the petition briefly stated are that the respondent-Bank had sanctioned cash credit limit to the tune of Rs.300 Lakhs on 28.02.2011 to the petitioner. The petitioner defaulted in payment of amount of loan. It is averred in the Writ Petition that the respondent-Bank without issuing any demand notice, suddenly affixed a notice for possession dated 10.01.2018 on the property on question without any information to the petitioner and without taking recourse to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for short). The petitioner challenged the aforesaid action by filing an appeal before the Tribunal. The Tribunal by an order dated 27.03.2017, appointed a Court Commissioner to visit the properties and to find out whether the properties in question are agricultural or non- agricultural properties. The Court Commissioner filed a detailed report on 10.04.2018. The Tribunal by impugned order dated 21.04.2018 held that the properties in question are agricultural properties and dismissed the appeal filed by the petitioner. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner while inviting the attention of the Court to Entry 18 of List-II appendid to Seventh Schedule to the Constitution of India submitted that the aforesaid Entry deals with land and the State Government has legislative competence to enact the law in respect of land. Learned counsel for the petitioner has also invited the attention of the Court to Sections 95, 133 and 192-A(5) of the Karnataka Land Revenue Act, 1964 and has submitted that the land in question is used for agricultural purposes. In support of his submissions, learned counsel for the petitioner has relied upon a decision of the Supreme Court in ‘INDIAN BANK & ANR VS. K.PAPPIREDDIYAR & ANR’, CIVIL APPEAL NO.6641/2018 and ‘WHIRLPOOL CORPORATION VS. REGISTRAR OF TRADE MARS’, (1998) 8 SCC 1. On the other hand, learned counsel for the respondent has submitted that the land is being used for non-agricultural purposes and against an impugned order an appeal lies before the Tribunal. It is also submitted that Section 35 of the Act has an overriding effect on provisions of any other law.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. The relevant extract of the Commissioner’s report reads as under: para 12 page 55.
“I further state that as per the physical verification of the schedule properties the applicant is carrying agriculture as well as non-agriculture work on the schedule properties. I am not in a position to say that whether the Rice mill building was constructed on the Sy.No.41/22 or 41/7 of Hulivana Village, Keragod Hobli, Manya Taluk. I have received only one RTC of that survey numberbassed on the RTC/Phani. I cannot say that whether the rice mill as constructed either on the Item No.2 of the schedule properties or the sy.No.41/22 of Hulivana Village.”
From perusal of paragraph 12 it is evident that the Commissioner himself has stated that he is not in a position to state whether the rice mill building was constructed on Sy.No.41/22 or 41/7. It is pertinent to mention that Advocate Commissioner was appointed to ascertain the aforesaid fact. The Tribunal while placing reliance on the report of the Commissioner has recorded a finding that the property in question is being used for agricultural purposes. The aforesaid finding is unsustainable and is perverse in view of statement made by the Commissioner in his report in paragraph 12 as referred to supra.
7. Ordinarily this court would have relegated the petitioner to the alternative remedy of filing an appeal before the Debt Recovery Appellate Tribunal, however, in the absence of any cogent material on record for recording a conclusion whether the land in question is an agricultural land or not, such an exercise in the fact situation of the case would amount to an exercise in futility. In the peculiar fact situation of the case, the impugned order is quashed and set aside and the Tribunal is directed to appoint a Revenue Officer to inspect the property and to submit a report thereafter the Tribunal shall proceed to decide the matter expeditiously in accordance with law preferably within a period of two months from today. Since, a Bench of this Court while entertaining the Writ Petition had granted an ad-interim order dated 22.05.2015, the same shall continue until the appeal is decided by the Tribunal. Therefore, it is not necessary to deal with rival contentions made by learned counsel for the parties on merits of the case as the matter is being remitted to the tribunal to decide the same afresh in the light of observations made supra. It is made clear that this Court has not expressed any opinion on the merits of the case.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS