Rajasthan High Court - Jodhpur
Kheta Ram & Ors vs State Of Raj. & Ors on 9 February, 2009
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
S.B. CIVIL WRIT PETITION NO. 4342/1996.
Kheta Ram & Ors. Vs. State of Rajasthan & Ors.
Date of order :: 9th February 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Sabir Khan for
Mr. Pradeep Shah, for the petitioners.
Mr. K.K. Bissa, Government Counsel for the respondent No.1
Mr. M.C. Purohit, for the respondent No.2.
....
BY THE COURT:
This writ petition was filed on 29.11.1996 while questioning the coercive recovery proceedings as adopted by the Sub-Divisional Officer, Bhinmal at the instance of the State Bank of Bikaner & Jaipur, Raniwara District Jalore ('the Bank') for recovery of the dues against the petitioners of the amount of advance made towards construction of a medium duty tube- well for the purpose of their agricultural field situated at village Sewara, District Jalore.
Put in a nut-shell, the case of the petitioners is that the work of providing the tube-well was undertaken by the Ground Water Department of the Government of Rajasthan through the District Rural Development Agency, Jalore and payment of the bill was made directly by the respondent Bank to the Ground Water Department. The petitioners have averred that 2 they made various representations to the concerned authorities pointing out the failure of the tube-well for its yielding saline water that had failed the laboratory test and had spoiled the soil; and have placed on record various representations made by them to the different authorities and so also the laboratory reports. The petitioners have also referred to the fact that the Branch Manager of the respondent Bank informed its Zonal Office about the tube-well in question being unfit for such saline water and about the petitioners having taken up private jobs to earn their livelihood and being not in a position to repay the loan amount. A copy of such communication from the Branch Manager has been referred in paragraph 11 of the petition and has been placed on record as Annexure-7. The petitioners have also averred that another tube-well provided to their neighbourer named Asraf also failed and thereupon recommendation was made for making payment to the Bank from the Government funds; and have placed on record such recommendation made by the Collector, Jalore as Annexure-8.
The petitioners have questioned the auction notice dated 15.11.1996 (Annex.10) as issued by the Sub-Divisional Officer particularly with the submissions that indisputably the tube-well in question was of no use and because of the same, 3 they were deprived of taking even the seasonal crops and rather the land became waste. The petitioners contend that recommendation having been made for the Government to bear the amount of loan in the case of Asraf, their case was on rather strong footings and there was no justification that they were discriminated against.
It may be pointed out that from the document Annexure- 2 as placed on record by the petitioners, it is borne out that final bill towards the tube-well in question was drawn by the Project Officer of the Ground Water Department on the respondent Bank for a sum of Rs. 56,807.61; and it appears from the submissions as made by the respondent Bank that with addition of the cost of a capacitor, in total a sum of Rs. 57,745.04 was paid to the Project Officer, Ground Water Department by the respondent Bank on 23.01.1981.
This writ petition was admitted for consideration by this Court on 03.12.1996 and by way of interim order, the respondents were restrained from taking coercive measures for recovery on the condition of the petitioners depositing an amount of Rs. 20,000/- within a period of two months and further an amount of Rs. 36,000/- within a period of six months. The said interim order was confirmed on 27.08.1997 after noticing the submissions on behalf of the petitioners that 4 they had deposited the amount as required and for nobody appearing for the respondents. An application moved by the respondent Bank for vacating the interim order came to be rejected on 10.04.1998 after noticing that the stay order was confirmed only after service of notice.
The respondent Bank has filed a reply to the writ petition with the submissions, inter alia, that the petitioners made the application for sanctioning a loan in the sum of Rs. 60,000/- for the purpose of the said tube-well and thereupon the loan was sanctioned on 27.09.1980 in the sum of Rs. 54,000/-. The Bank has also pointed out that after completion of the tube-well, the petitioner Teja Ram submitted a letter to the Bank on 15.01.1981 (Annex.R-2/6) for making payment to the Ground Water Department towards the tube-well in question while specifically stating that the tube-well was functioning properly and he was satisfied with the machinery provided and the water capacity. It is maintained that the payment was made by the respondent Bank as per the request of the petitioners and they were estopped from alleging that the tube-well was not successful or that it was not working satisfactorily.
The respondent Bank has referred to the final bill submitted by the Ground Water Department in the sum of Rs. 5 56,807.61 and request having been made for payment against the cost of capacitor and thus, the Bank having advanced a sum of Rs.57,745.04. The respondent Bank submits that the petitioners, having irrigated their land and having got the fruits therefrom, were not justified in avoiding to make payment. It is, however, noticed that so far the communication dated 15.02.1995 (Annex.7) by the concerned Branch Manager of the Bank to its Zonal Office is concerned, the respondent Bank has chosen not to state anything in the reply. However, so far the recommendation in relation to the case of Asraf is concerned, the Bank would maintain that the Government did not accept the recommendation made by the learned Collector. The respondent Bank asserts that the recovery proceedings have been adopted in accordance with law and under the terms of the contract between the parties. The mainstay of the respondent Bank is that having stated their satisfaction with the tube-well in question under their communication dated 15.01.1981, the petitioners are estopped from alleging anything otherwise; and that the payment of the loan amount was made to the Ground Water Department only after the petitioners stated such satisfaction.
Having heard the learned counsel for the parties and having examined the matter in its totality, this Court is of 6 opinion that the submissions as made by the petitioners, of the tube-well in question being unsuccessful particularly for yielding saline water, cannot be dubbed outright as a fanciful story nor the principles of estoppel could, in abstract, be applied to the present case as if the letter dated 15.01.1981 (Annex. R-2/6) is decisive of the entire matter and puts curtain on the submissions sought to be made by the petitioners.
From the chronology of facts and events as available on record, it appears that the loan application came to be made by the petitioners on 16.09.1980 and the Bank proceeded to sanction the loan in the sum of Rs. 54,000/- with certain terms and conditions. The sanction as made by the respondent Bank on 27.09.1980 (Annex.R-2/4) for such an advance required, inter alia, that the Ground Water Department would issue a certificate stating that the tube-well was in good working condition and discharge was proper and sufficient for irrigation. It is noticed that the respondent Bank has placed on record an estimate bearing the date 10.10.1979 (Annex.R-2/3) stating the estimated cost of the tube-well, approximate water availability and cursorily stating that water of this tube-well was suitable for agricultural purposes; but it is difficult to co-relate this document, issued about a year before digging the tube- well in question, with the requirement of a certificate under the 7 sanction order. On the other hand, it appears that the tube-well in question was completed on or about 27.12.1980 when the final bill was drawn by the Ground Water Department on the respondent Bank in the sum of Rs. 56,807.61. No such certificate from Ground Water Department, as required by the sanction order, is available on record; and the respondent Bank has failed to explain as to how the payment was made to the concerned Department without such certificate.
When the tube-well in question was completed only in the month of December 1980, if the petitioners at all stated in the second week of January 1981 about the tube-well being functioning properly and themselves being satisfied with the machinery and capacity, it cannot be assumed that the petitioners had stated anything about their satisfaction on the quality of water provided by the said tube-well. Such an aspect about quality of water, in the natural course, could have been noticed by the petitioners only after putting the same to use, particularly for the purpose of taking the crops. It is noticed that as back as the year 1982, the petitioners made the representation about the tube-well yielding saline water that was unfit for irrigation. Significant part of the matter is that the Chemical Examination Report (Annex.6) unfailingly shows that the water yielded by the tube-well was not fit for irrigation 8 and rather in relation to the sample No.1, it was pointed out that the salt contents were too excessive and in relation to the samples Nos. 2 and 3 also, it was pointed out that it was saline water and certain suggestions were made as to how some of the salt-resistant medium quality crops could be taken.
Another significant part of the matter is that the respondent Bank was precisely aware of the fact that the land in question was rendered unarable because of the saline water yielded by the tube-well in question and this fact was stated by none other than the Branch Manager of the respondent Bank to its Zonal Office in the letter dated 15.02.1995 (Annex.7) wherein the Manager concerned stated, inter alia,-
"उपर क सम न म लख ह क ऋण खत ट
वल खर पन रण न र ह ग ह तथ
ऋण वह न रह र क स अन खत पर न# र$
रत ह । अ ऋण & हसस त भ नह$ ह क वह
) म ब र. 2,24,657/- (द-स. 94
त ) च त र स ।"
The respondent Bank has maintained a wanton silence about the said communication of their Branch Manger in its reply to this writ petition.
Yet another noticeable part of the matter is that realising the difficulties faced by a similarly circumstanced agriculturist whose similar kind of tube-well failed, the Collector concerned did make a recommendation for bearing of the loan amount 9 from the DDP account. Whether such recommendation was accepted by the Government or not is a matter entirely different; but the present one was a case that definitely required consideration of the authorities concerned before deciding if coercive recovery proceedings were to be adopted against the petitioners. It is not borne out on the record if the repeat representations made by the petitioners received adequate and due consideration.
As noticed, while entertaining this writ petition and staying coercive recovery proceedings, this Court, of course, put the petitioners to terms; and the petitioners were directed to make payment of Rs. 56,000/- to the Bank concerned. It is not in dispute that the petitioners have made the payment required by the order passed in this writ petition. In these circumstances, this Court is of opinion that interest of justice require that the representations as made by the petitioners are given due consideration and for that matter, the petitioners may be permitted to make further representations; and until decision thereupon, coercive recovery proceedings against the petitioners be kept in abeyance.
Accordingly, this writ petition is allowed to the extent indicated above; the coercive recovery proceedings against the petitioners in relation to the loan in question are ordered to 10 be kept in abeyance until the representations as made by the petitioners are considered and decided by the authorities concerned; and for that matter, the petitioners may submit representations afresh to the concerned authorities within 30 days from today. In the circumstances of the case, however, the parties are left to bear their own costs of this writ petition.
(DINESH MAHESHWARI), J.
//Mohan//