Heard Mr. Buch, learned advocate for the petitioner – Vyasda Arthksham Seva Sahkari Mandali Ltd. [hereinafter referred to as “the society”] and Mr. Sunil Joshi, learned advocate for the respondent No.4 – Panchmahals District Cooperative Bank Ltd. 2. Mr. Joshi, learned advocate for the respondent No.4 – Panchmahals District Cooperative Bank Ltd., has submitted that copy of the petition has been served on him and he has taken instructions from his client, i.e. Panchmahals District Cooperative Bank Ltd. He, however, submitted that due to paucity of time, the duly signed vakalatnama has not been received and that therefore, time may be granted to file vakalatnama on behalf of the respondent No.4 – Panchmahals District Cooperative Bank Ltd. which he shall file within period of 10 days.
Considering the request, time to file vakalatnama on behalf of the respondent No.4 – Panchmahals District Cooperative Bank Ltd. is granted until 23.10.2012.
3. Mr. Buch, learned advocate for the petitioner – society, has submitted that the subject matter of the petition is covered by the decision of the Hon'ble Division Bench in LPA No.1484 of 2010 and allied matters. He also clarified that by virtue of the said judgment, the Hon'ble Division Bench has already observed and held that once the policy is issued by the Central Government, the respondent No.2 – Reserve Bank of India has not to take any further or other actions and has no role to play.
4. Mr. Buch, learned advocate for the petitioner- society, has submitted that the petitioner has availed loan for agricultural purposes from the respondent No.4 – The Panchmahals District Cooperative Bank Ltd. He also submitted that the petitioner is entitled to the benefits arising from the Agricultural Debt Waiver & Debt Relief Scheme, 2008 [hereinafter referred to as “Scheme of 2008” for brevity]. He submitted that despite repeated requests by the petitioner, the said benefit has not been made available by the respondent No. 4 - Bank and the respondent No.1. Therefore, the petitioner is constrained to prefer present petition.
5. The subject matter of petition, as mentioned above, is arising from a Scheme introduced by the respondent No.1. The case of the petitioner, as mentioned in the petition, is that though petitioner is entitled to the benefits under the Scheme of 2008, the respondent No.4 – Bank has not extended the said benefits to the petitioner, despite repeated requests.
5.1 With reference to the grievance made by the petitioners, reference is required to be made to Common CAV Judgment dated 11.3.2011 passed by the Hon'ble Division Bench in LPA No.1484 of 2010 and other allied matters which were also preferred in light of the provisions of the said Scheme of 2008 and the claim of the petitioners – appellants on the strength of the said Scheme.
It is submitted by learned advocate for the petitioner that the subject matter of present petition is covered by the judgment dated 11.3.2011 passed by the Hon'ble Division Bench in the aforesaid group of Appeals.
5.2 In the said group of Appeals, the Court examined the relevant provisions of the Scheme vis-a-vis the claim by the persons, who had availed the benefits of agriculture credit.
6. In the said appeals, the petitioners/appellants had referred to several documents to suggest that actually individual farmers had been given loans by the concerned Banks and that their applications were only forwarded by their respective cooperative societies and some of the farmers who possess Kissan Credit Card (which is covered under the Scheme) claimed that the borrowings had been made by one firm by pulling their land holdings, the size of which should be taken into consideration for the purpose of classification of farmers in that pool as marginal farmer or small farmers or other farmers as per explanation II given below Clause 3.7 of the Scheme. Many of them had even stated that they are land holders or tenants or they share crops.
After considering the said aspects and submissions, the Court held that all those factual aspects cannot be determined by the Court in petition under Article 226 of the Constitution or in appeal preferred against the judgment of the learned Single Judge under Clause 15 of Letters Patent.
Therefore, present petition also cannot be entertained and the petitioner should approach the respondent Bank.
It also appears that present petition can be disposed off in light of and in terms of the said Common CAV Judgment.
Thus, in present case also, it is clarified that all said and such other relevant factual aspects shall have to be considered independently by present respondent Bank.
6.1 The petitioners shall have to satisfy present respondent Bank that, none of the petitioners-cooperative societies could show that, (i) they fall within the definition of `cooperative credit institution'. Nothing on the record to suggest that (ii) they provide short-term crop loan to farmers and thereby eligible for interest subvention from the Central Government. All the petitioner-societies have failed to show that (iii) they carry on banking activities regulated or supervised by the R.B.I. or NABARD. Nothing on the record to suggest that (iv) the cooperative societies in question are part of the short-term cooperative credit structure or long term credit structure in a State or Union Territory. The Central Government also clarified at Sr.No.3 that (v) whether they are lift irrigation societies and functional societies are not cooperative credit institutions as defined under the scheme, (vi) loans given to farmers by those societies are covered under the Scheme. Therefore, we hold that the petitioner-societies who do not (vii) whether they fulfill any of the aforesaid factors and come within the definition of `cooperative credit institutions' under clause 3.4 of the Scheme, and whether they are entitled to claim any benefit in light of the discussions and conclusion in this order.
It may also be kept in focus, as observed in the judgment, that any farmer who has taken loan from such cooperative society, and not from any bank or `cooperative credit institution' as defined under clause 3.4, cannot claim waiver of agricultural loan taken from such cooperative societies.
6.2 It is also clarified that the present respondent Bank shall also consider the observations, clarifications and directions mentioned in para- 27 to para-33, particularly para-30 of the Common CAV Judgment in the group of Letters Patent Appeals.
6.3 The decision of fixing the ceiling limit (for utilization of the loan amount and / or for disqualifying those who have utilize more than the ceiling limit for purpose other than agricultural purpose) is, in view of para – 34 of the said Common CAV Judgment left to the decision of the Bank.
It would be open to present respondent Bank to determine the extent and the amount the petitioner would be entitled and eligible for debt waiver and debt relief, but it ought to be in consonance with the other observations and conclusions in the said Judgment.
6.4 It is further clarified that present respondent Bank shall also take into account the observations and conclusions of the Court mentioned in para – 35, 36 to 38, 41, 43 and 44. Special notice of the observations and conclusions and directions in para – 40 shall also be taken by present respondent Bank while deciding the applications/representations of the petitioner.
Present respondent Bank shall, while deciding the applications / representations of the petitioner keep in focus the observations and clarifications by the Court in para – 39 to 43 of the Common CAV Judgment which read thus:-
“39. Under Sr.No.7 of the Clarification made by the Central Government by letter dated 20th June 2008, it has been made clear that HUF is included in the Scheme. Therefore, learned Single Judge rightly held that if the land is held jointly by HUF and the loan is used for activities allied to agriculture, such loan should be sanctioned and made available to HUF only, and in those cases, HUF will be more or less at par with the individual farmer.
40. However, specific clarification having been made under Sr.No.7 of clarification that the proprietary firm is not covered under the Scheme, those petitioners who claim benefit as a proprietary firm, their claim is to be rejected. The Central Government in its Scheme and subsequent clarification under Sr. No. 20, made it clear that the Scheme does not apply to any loan disbursed by the lending institution prior to close of business on 31st March 1997. Therefore, the agriculturists and others cannot claim benefit of waiver of the prior period.
41. In absence of any prohibition under the Scheme disqualifying a farmer from waiver on the ground that he had not repaid the loan amount taken prior to 31st February 1997, it was not open to the learned Single Judge to hold that such farmers are not entitled to claim waiver if declared as defaulters or not paid the outstanding dues. Finding of learned Single Judge to that effect being erroneous is set aside.
42. We have already noticed the submission made on behalf of the R.B.I. that they have no direct role to play in the matter of waiver of loan. R.B.I. is a nodal agency as per clause 7.8 for implementation of the Scheme in the Scheduled Commercial Banks, Urban Cooperative Banks or Local Area Banks. NABARD is the nodal agency of Regional Rural Banks and Cooperative Credit Institutions. We have already held that the power to determine the amount of waiver is to be exercised by the lending institution/bank/cooperative credit institution. In view of such finding, there is no justification to remit any matter to the nodal agency or to rely on any opinion of the nodal agency, particularly the matter having been clarified by the Central Government. This apart, we find that R.B.I. or NABARD has not framed any policy or guidelines of loan waiver. Therefore, merely on the basis of an affidavit filed by nodal agencies, learned Single Judge ought not to have given a finding as given in the present case.
43. We have already held that those farmers, who have obtained loan from the cooperative societies, which are not cooperative credit institutions, are not eligible for waiver of the loan. However, if one or the other farmer has been granted agricultural loan by Commercial Banks or Regional Rural Banks or Urban Cooperative Banks or Local Area Banks or Cooperative Credit Institution in their individual names or in favour of members of HUF and not in the name of their cooperative societies of which they are members, if repayment of loan has been adjusted against individual account of such farmer or against HUF members and if they have also been provided with Kissan Credit Card, then such farmers, who have obtained direct loan under Kissan Credit Card, would also be covered under the Scheme as per Explanation 4 below clause 3.7 of the Scheme.”
7. One more aspect which is required to be taken into account is that the petitioner has come forward with present petition, after long time i.e. even after the said judgment in the said Appeals, substantial delay of about 15 months has taken place in preferring present petition.
7.1 Therefore, below mentioned order is passed with a rider and clarification that the concerned respondents shall be at liberty to take necessary and appropriate decision considering the time consumed or rather delay caused by the petitioner.
8. The petitioners shall approach the respondent Nos.1 and 4 with fresh application annexing therewith memo of the present petition and also placing copy of the Common Cav Judgment dated 11.3.2011 passed in LPA No.1484 of 2010 and allied matters within period of 15 days from today.
8.1 The petitioner shall also supply a certified copy of this order to the respondents, more particularly the respondent No.4 Bank.
8.2 It is clarified that since the subject matter of present petition is covered by the decision by the Division Bench and the only direction issued by this order is to act as per the said decision and to pass order as per the said decision, the other respondents are not served with notice and that therefore, it is open to the other respondents to move appropriate application for modification of this order or getting the order vacated.
8.3 The said applications and the petition shall be treated as applications and representations by the respondent Nos.1 and 4 and appropriate decision, in light of the Common Cav Judgment dated 11.3.2011 passed in LPA No.1484 of 2010 and allied matters, shall be taken by the concerned respondents within period of 6 weeks after receipt of the applications along with documents, as aforesaid.
8.4 It would be open, as mentioned above, to the respondent authority to take into account the time gap or delay which has occurred in raising the claims. However, appropriate directions with regard to monetary implications can be taken while taking the said aspect in focus.
8.5 The competent authority of the respondent shall pass reasoned order and shall communicate the same to the petitioner immediately after the decision is taken.
8.6 In view of present order and in view of the fact that the respondents have already passed directions, it is considered appropriate to dispose of present petition with aforesaid observations, without any notice to respondents. It is, however, clarified that if the respondents feel aggrieved by present order or if according to the respondents any modification in the order is required, then, the respondents may take out appropriate application seeking modification or vacation of present order.
With the aforesaid observations, clarifications and direction, present petition stands disposed of.
(K.M.Thaker, J.) kdc