Rajasthan High Court - Jodhpur
Smt. Dwarki Devi And Anr vs State Bank Of India And Anr on 2 July, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12783 / 2017
1. Smt. Dwarki Devi W/o Late Shri Ratiram, Aged About 65 Years,
By Caste Yadav, Resident of D-104, Ward No. 4, Near Gyandeep
Public School, Sri Ganganagar.
2. Om Yadav S/o Shri Ratiram, Aged About 45 Years, By Caste
Yadav, Resident of D-104, Ward No. 4, Near Gyandeep Public
School, Sri Ganganagar.
----Petitioners
Versus
1. State Bank of India Through Its Branch Manager, JCT Mill
Branch, Sri Ganganagar.
2. Assistant General Manager, State Bank of India, Regional
Business Officer, Gaganpath, Jawahar Nagar, Sri Ganganagar.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.D.S.Thind.
For Respondent(s) : Mr.Jagdish Vyas.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Pronouncement : 02/07/2018 Through this writ petition under Article 226 of the Constitution of India, the petitioners herein have approached this Court for issuance of a writ of mandamus to the respondents to sanction a top up home loan to them in furtherance of their application dated 17.6.2017.
Learned counsel Shri Thind submitted that lease of a plot of land was issued to the petitioner No.1 Smt.Dwarki Devi by the UIT Ganganagar way-back in the year 2001. The petitioners constructed a house on the abovementioned plot. However, in the recent past, the petitioners felt requirement for some more money (2 of 5) [CW-12783/2017] for making some addition to their house. Accordingly, an application dated 17.6.2017 was moved by the petitioners to the respondent State Bank of India for seeking top up home loan to the tune of Rs.3 lacs. However, the respondent Bank, without any justification turned down the said request of the petitioners vide letter dated 18.8.2017 (Annex.5) while observing that the property is non-transferable and hence, the bank's interests would not be safeguarded by mortgage thereof.
In support of the contention that the property in question is transferable, the petitioners have placed reliance on an amendment dated 10.6.2003 made in Clause 9 of an earlier notification dated 18.5.1999 issued by the State Government relating to regularization of houses constructed on Kucchi Bastis. Under this notification, the government has given liberty to the allottees of such plots to place their properties under mortgage for taking loan from banks. Shri Thind thus urged that in view of the above notification of the State Government, the respondent bank was totally unjustified in turning down the petitioners' application for grant of top up home loan.
Per contra, Shri Jagdish Vyas learned counsel representing the respondent Bank urged that upon receiving the application for top up home loan, a title investigation report was sought for by the bank officials as per the prevalent procedure. The panel advocate of the bank gave a specific opinion vide letter dated 8.7.2017 that the title of the property is not appropriate for the purpose of sanction of equitable mortgage loan to the petitioners. The petitioners, thereafter approached the bank with the State (3 of 5) [CW-12783/2017] Government's order dated 10.6.2003 and the matter was referred to another panel counsel of the bank, who also gave a similar opinion dated 17.7.2013 that no valid mortgage could be created on the property in question because transfer thereof in case of default of repayment of loan is not permissible as per Clause 3 of the allotment letter. On these grounds, Shri Vyas craved rejection of the writ petition.
Having heard and appreciated the arguments advanced by the learned counsel for the parties and after going through the allotment letter (Annex.1), this Court is of the firm opinion that there existed a categoric restriction/prohibition in such allotment letter against transfer of the allotted land. Thus, the notification (Annex.3) which was relied upon by the petitioners in support of the claim that properties regularized under the Kucchi Basti scheme could be mortgaged, is not considered relevant for the prayer made by the petitioners. However, this Court is of the opinion that with the introduction of the amendment notification dated 10.6.2003, the restriction against mortgage has been lifted because in terms thereof, the government has authorized the allottees to keep their property as equitable mortgage for taking loans from banks. The plea advanced by Shri Vyas that the notification is not retrospective in nature does not convince the Court for a moment for the reason that it is beyond comprehension that an allottee after 10.6.2003 under the scheme of the government for regularization of Kucchi Bastis would be able to keep the property as equitable mortgage for getting a loan but an allottee of a prior date would be deprived from availing (4 of 5) [CW-12783/2017] such facility. Without any doubt, the subject matter of the amendment notification which reads as below:
" jktLFkku ljdkj uxjh; fodkl foHkkx Øekad%& i-9¼1½ufofo@3@95 t;iqj] fnukad%& 10-06-2003 fo"k;%& 'kgjh {ks=ksa dh dPph cfLr;ksa esa 15 vxLr 1998 rd ds vukf/kd`r :i ls jktdh; Hkwfe ij cuk;s x;s vkoklh; fuekZ.kksa ds fu;eu ds laca/k esaA &% la'kks/ku vkns'k %& bl foHkkx ds lela[;d ifji= fnukad 18-5-99 ds fcUnq 4& fu;eu gsrq lkekU; funsZ'k ds funsZ'k la[;k 9 ds uhps fuEu ijUrqd tksMk tkrk gSA ^^ijUrq ftlds i{k esa fu;eu fd;k x;k gS og fu;fer dh xbZ Hkwfe ij Hkou fuekZ.k@foLrkj gsrq fdlh cSad vFkok foRrh; laLFkk ls _.k izkIr djus gsrq fu;fer gqbZ Hkwfe vkSj ml ij cus fuekZ.k dks lacaf/kr cSad vFkok foRrh; laLFkk ds i{k esa cU/kd j[k ldsxkA** dPph cLrh fu;eu ds fy;s fu/kkZfjr ^^fu;eu&vkoaVu vf/kdkj i=** dh 'krZ la[;k 3 ds uhps fuEu ijUrqd tksM+k tkrk gSA ^^ijUrq vkoaVh mls vkoafVr Hkw[k.M ij Hkou fuekZ.k@foLrkj gsrq fdlh cSad vFkok foRrh; laLFkk ls _.k izkIr djus gsrq vkoafVr Hkw[k.M o ml ij fufeZr Hkou dks _.k nsus okys cSad@foRrh; laLFkk ds i{k esa cU/kd j[k ldsxkA** g0 mi 'kklu lfpo"
makes the issue clear that the same applies to allotments of plots regularized under the notification dated 18.5.1999 and the same have to be treated as safe equitable mortgage so as to claim loan from the bank.
Thus, the writ petition deserves to be and is hereby allowed. The impugned communication (Annex.5) dated 18.8.2017 is (5 of 5) [CW-12783/2017] hereby quashed and set aside. The respondent Bank is directed to reconsider the top up home loan application of the petitioners in light of the above observations. Requisite exercise in this direction shall be completed within a period of two months from today.
Stay application is disposed of.
(SANDEEP MEHTA), J.
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