HDFC Bank Limited v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **WP(C).No.24799 OF 2018(Y)** ## **PETITIONER:** **HDFC BANK LIMITED CHOICE TOWER, MANORAMA JUCTION, ERNAKULAM, REPRESENTED BY ITS AUTHORIZED OFFICER, JOHN MATHEW.** ## **BY ADV. SRI.T.RAJESH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.** - **2 PRINCIPAL SECRETARY REVENUE DEPARTMENT, 1ST FLOOR, MAIN BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 DISTRICT COLLECTOR COLLECTORATE, KANNUR - 670002.** - **4 MOIDEENKUTTY K.P. S/O KUTTIALI, SREEKANDAPURAM,TALIPARAMBA, KANNUR - 670631.** - **5 MRS.KADEEJA.P.S. W/O MOIDEENKUTTY K.P., SEERAKATH,SREEKANDAPURAM, TALIPARAMBA, KANNUR - 670631.** - **6 ANIZ.K S/O MOIDEEN.K.V., NOOR MAHAL, SYED NAGAR,TALIPARAMBA P.O., KANNUR-670631.** ## **SMT.RASHMI.K.M,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.24799 OF 2018(Y) 2 ## **CR** ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: i) Call for the records in connection with Ext.P2 and quash the same by issuing a writ of certiorari. ii) issue a writ of mandamus compelling the 3[rd] respondent to expedite the recovery proceedings initiated against respondents 4 to 6. iii) Issue such other order or direction as this Honourable Court deems fit considering the facts and circumstances of the case. iv) Direct the respondent to pay the cost of the proceedings. 2. Basic material facts put forth by the petitioner is that, 1[st] respondent without providing notice of hearing to the petitioner has granted 50 installments to respondents 4 to 6 to repay the amounts as per Ext.P1 requisition made under section 69(2) of the Kerala Revenue Recovery Act, 1968 (hereinafter called, 'Act, 1968'), which according to the petitioner, is without jurisdiction and therefore, illegal. **==> picture [366 x 13] intentionally omitted <==** learned Government Pleader submitted that, later WP(C).No.24799 OF 2018(Y) 3 the said party respondents approached the State Government again and, the order granting 50 installments was revised and the said parties are now granted with 60 installments to repay the amount. 4. A counter affidavit is filed by the 2[nd] respondent justifying the stand adopted in Ext.P2 granting installments to the party respondents. 5. I have heard learned counsel for petitioner and learned Government Pleader. Though notice is served on party respondents, there is no appearance. 6. In my considered view, though the Government is vested with powers to entertain a revision under section 83 of Act, 1968, Government is not empowered under the provisions of the Act, 1968 to receive a representation from the aggrieved person/persons and grant installments, and that too without issuing notice to the affected persons. In the case on hand Government have passed orders granting 50 installments earlier and later revised to 60, at WP(C).No.24799 OF 2018(Y) 4 the request of party respondents, without issuing notice to the petitioner. 7. In this context, it is relevant to quote section 83 of Act, 1968 dealing with the power of revision of Commissioner of Land Revenue and Government; “83. **Power of revision of Commissioner of Land Revenue and Government** - (1) The Commissioner of Land Revenue may, either of its own motion or on an application by any person interested, call for any proceeding which has been taken by the Collector or the authorised officer under this Act and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders as it thinks fit. Provided that no order shall be passed under this sub-section without previous notice to the party who may be affected by such order. (2) The Government may, either _suo motu_ or on an application by any person interested, call for the record of any proceeding taken by the Commissioner of Land Revenue under sub-section (1) and may make such enquiry or cause such inquiry to be made and subject to the provisions of this Act, may pass such orders as they think fit. Provided that no order shall be passed under this sub-section without previous notice to the party who may be affected by such order. (3) An application for revision under subsection (1) or sub-section (2) shall be made within ninety days from the date on which the WP(C).No.24799 OF 2018(Y) 5 order in question was communicated to the applicant. Provided that the Commissioner of Land Revenue or the Government, as the case may be, may, if it or they is or are satisfied that the applicant was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. Therefore, it is clear from sub-section (2) that Government is vested with powers either _suo motu_ or on an application by any person interested, call for the record of any proceeding taken by the Commissioner of Land Revenue under sub-section (1) and may make such enquiry or cause such enquiry to be made and subject to the provisions of the Act may pass such orders as they think fit. Proviso further make it clear, no orders shall be passed under the sub-section without previous notice to the party who may be affected by such order. 8. On a perusal of Ext.P2 order passed by the Government, it is clear that, Government have passed the said order on the basis of the application submitted by the party respondents dated 16.3.2018. Therefore, it is explicit that Government was not exercising the power of revision conferred under section 83 of Act, 1968 in accordance with the statutory stipulations. So also the Government have power to exercise the WP(C).No.24799 OF 2018(Y) 6 revisional jurisdiction, only from an order passed by the Land Revenue Commissioner. Accordingly, the Government was not legally right in entertaining the application of the party respondents to have conferred with 50 installments for payment of the outstanding amounts as per Ext.P1 requisition under section 69(2) of Act, 1968 and on a perusal of Ext.P1, it is clear that, an amount of Rs.2,23,16,583/- was outstanding against the party respondents with interest @ 11% from 12.8.2016. It is also evident from Ext.P2 order that, Government have not issued any notice to the petitioner before passing Ext.P2 order. 9. In my considered opinion, since the Government did not have any power to entertain such application, Ext.P2 order passed by the Government cannot be tolerated and is totally illegal, arbitrary and unfair. Moreover the power of the Government is confined to section 83 of Act, 1968 to entertain a revision in a limited circumstance and that power cannot be exercised for entertaining any representation from any WP(C).No.24799 OF 2018(Y) 7 aggrieved person for granting installments. Which thus means by virtue of section 83 of Act, 1968, the Government is not having any omnibus power/unlimited jurisdiction to pass any orders in a requisition made by a creditor to recover the amounts under the Act, 1968. The Apex Court had occasion to consider a similar question in **Tamil Nadu Pollution Control Board v. Sterlite** **Industries (I)Ltd. and Others** [2019 KHC 6182 : 2019(1)KLT 726] and has held as follows in paragraphs 43 and 44: _**43.** Shri.Sundaram then argued that, in any case, this order is an order made by the State Government against the TNPCB, and is therefore, a direction to the TNPCB and not a direction to his client. If this were so, and the order had no effect on his client, there would have been no necessity to file an appeal before the NGT against such order. We have seen, however, that this order has been challenged on merits by the respondent before the NGT. To then say that this order which is challenged would be defended on certain grounds, as a result of which, the NGT then gets vested with the jurisdiction to decide the same, is again to put the cart before the horse. It is clear that no appeal is provided against orders made under S.18 of the Water Act, and the attempt to bring the NGT in by the backdoor, as it were, would, therefore, have to be rejected._ WP(C).No.24799 OF 2018(Y) 8 _Also, to argue that as against a writ court acting under Article 226 of the Constitution of India, the NGT is an expert body set up only to deal with environmental matters, again does not answer the specific issue before this Court. As we have held earlier, an appeal being a creature of statute, an order passed under S.18 of the Water Act is either appealable or it is not. If it is not, no general argument as to the NGT being an expert body set up to hear environmental matters can be of any help._ _**44.** Equally, so far as the order dated 08.08.2013 is concerned, we have seen how the NGT stated that the doctrine of necessity would take over if an appellate authority under the Act is not properly constituted so that no appeal can then be effectively preferred. This, again, is an argument that cannot be countenanced. If an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced. As has been held by us supra, the NGT is only conferred appellate jurisdiction from an order passed in exercise of first appeal. Where there is no such order, the NGT has no jurisdiction._ **==> picture [418 x 12] intentionally omitted <==** circumstances, I have no hesitation to hold, the State Government did not have any power to pass an order like Ext.P2 and subsequent order granting 60 installments discernible from the counter affidavit filed by the second respondent. Therefore, Ext.P2 is quashed and WP(C).No.24799 OF 2018(Y) 9 there will be a direction to the 3[rd] respondent i.e., the District Collector to proceed to recover the amounts in accordance with law, if the party respondents are not making the payments within two months from the date of receipt of copy of this judgment. ## **Sd/-** ## **SHAJI P.CHALY** Smv 13.8.2019 **JUDGE** WP(C).No.24799 OF 2018(Y) 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: THE TRUE COPY OF THE REQUISITION RAISED BY THE PETITIONER IN FORM 24 DATED 12/8/2016. EXHIBIT-P2: THIS TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DEPARTMENT.**