Rajasthan High Court - Jaipur
Hindustan Engineering Corporation, ... vs Rajasthan Financial Corporation And ... on 17 November, 1989
Equivalent citations: AIR1991RAJ40, 1990(1)WLN537
ORDER D.L. Mehta, J.
1. Petitioner Hindustan Engineering Corporation preferred this revision petition being aggrieved with the order dated, 24th Oct., 1989 passed by the learned trial Court and the order dated, 2nd Nov., 1989 passed by the appellate Court rejecting the application moved under Order 39, Rules 1 and 2, C.P.C.
2. Petitioner has come with the case that he borrowed few lacs of rupees from the Rajasthan Financial Corporation, non-petitioner. He instituted a suit against the Corporation and prayed therein that he should not be dispossessed from the property against which he has obtained the loan. The description of the property is the industrial unit situated in Malviya Nagar in Khand No. H-108. Both the Courts below considered that there is no prima facie case in favour of the petitioner and injunction should not be granted restraining the Financial Corporation from realising the loan already granted to the petitioner. In the matter of realisation it is necessary to take the management and possession of the property under Section 29 of the State Financial Corporation Act, 1951.
3. Mr. Bhandari appearing on behalf of the petitioner, with all vehemence at his command submitted that the provisions of Section 29 cannot be invoked as no regulations have been framed under S. 48 of the said Act of 1951. Section 48 of the Act is an enabling provision under which the Board may after consulation with the Development Bank and with the previous sanction of the State Government make regulations not inconsistent with the provisions of the Act of 1951. Thus Section 48 is not mandatory section and it is only an enabling section. It is not necessary to frame the rules and regulations under Section 48 of the Act and Corporation can function without the rules. Legislature in its wisdom has rightly used the word 'may' in Section 48. I do not find any force in this submission made by Mr. Bhandari about the applicability of Section 48 quo Section 29 of the Act.
4. The second limb of Mr. Bhandari's arguments is that Section 29, no doubt, defines the right of the Financial Corporation to take over the management of the industrial concern. He further submits that such a right can be enforced by taking recourse to the ordinary law contained in the Transfer of Property Act and the Civil P.C. He has cited before me the case of Munna Lal Gupta v. U. P. Financial Corporation (AIR 1975 Allahabad 416). The case cited by Mr. Bhandari does not apply in the facts and circumstances of the case. Allahabad High Court was considering whether the possession of the property can be taken in exercise of the powers under Section 29 or not. In the instant case, the Corporation is not taking the possession of any other property of the surety or even the loanee, but is taking the management and possession of the industrial units against which the loan was granted. Section 29 only enables the Corporation to take over the management or possession of the industrial concern. Thus, the case cited by Mr. Bhandari is not at all relevant as the present petitioners are not taking possession of the property of the surety, but they are taking the possession of the industrial concern including the quarters constructed therein, may be for residential purpose of the staff or otherwise.
5. It is admittedly a settled law and Mr. Bhandari also does not contest also on this point that Section 29 is a valid piece of legislation. Corporation has every right to proceed under Section 29 unless it is shown that U has acted arbitrarily or maliciously. Even a judicial act if done arbitrarily can be checked and similarly every act done by the Corporation can be checked if done arbitrarily. There is no allegation of any arbitrariness or mala fide act done by the Corporation. It will not be out of place here to mention that small industrial units are established to give employment and enterpreneurship to the people particularly of the middle class so that they can strive not only towards the betterment of their own family but also for the betterment of the society as a whole. It is a decentralised scheme of the industry and for that purpose, the Financial Corporation has been established under the Act of 1951, to achieve the objects laid down in the Constitution of India. Particularly, the preamble and Chapter IV of the Constitution of India. Mr. Bhandari was advised to correct himself that the judge is neither traditional nor an activist, but, the Juge is a Judge to be judged by the society and to guide the society for the fulfilment of the objects laid down in the Preamble of the Constitution. In the present time one should not expect from a Judge that he will act like mason putting brick on the brick. Judge is a structural Engineer and architect and foresees the future of the society and works for the betterment of the society and, for that purpose if one is called the activist Judge one should not feel shy of it as at least he is having a privilege of not being called a mason.
6. Upliftment of the society needs a regular financing and if the loans arc not recovered there will be stagnancy and the Corporation will not be able to finance or refinance the enterprenenrs coming for its aid. In such circumstances, I am not inclined at all to modify the order passed by the courts below, particularly, when their loan is outstanding against the present appellant.
7. Mr. Bhandari submits that this Court in the case of Karam Singh v. State of Rejasthan (1971 WLN 15J) (said) that every act including the act of eviction should be taken according to law and the principles of due process of law should be followed. There cannot be two opinions about the proposition of law. Due process of law may lead interpretation in the matter of applicability of law. Section 29 provides that the Corporation will have a right to take over the possession by force and it is not necessary that there should be any specific reference in the section itself.
8. Apart from that mere apprehension will not count. Of course, it is expected from the respondents that they will serve a notice, if not served so far for the vacation of the premises and call upon the petitioner to vacate the premises within a reasonable time. If the petitioner fails to do so naturally, the force will have to be used to take the possession of the property and using of force to take over the possession of the property after serving a notice and giving a reasonable time to vacate, is a due process of law and it cannot be other than that. Mr. Bhandari has also cited before me the case of M/s. Swastik Automobiles v. Bihar State Financial Corporation (AIR 1989 SC 1551). Mr. Bhandari was asked to produce the copy of the application and it seems that this ground has not been taken by him that the property of which the possession has been taken over, is sufficient to satisfy the demands of the Corporation. Both the Courts below have also not discussed this point for the very reason that there was no ground. Mr. Bhandari submit that he has taken this ground in the revision. The revisional jurisdiction cannot embark upon the new enquiry of facts and the powers of revisional court arc very limited. A very alarming factor has crept in the society and particularly in many industrial units because of the abnormal rise in the prices of land. Industrial houses are selling the land which was allotted to them only for the industrial purpose. Ordinarily, this practice cannot be encouraged and a quarter and a house constructed in the industrial complex area is the part of the industrial complex area of the industry concerned and it is the requirement of that industry also that the Manager or the security guard should stay there for the safety and proper management. Without making any observations on, this point I will limit myself only to this extent that the petitioner can move an application before the trial court and if the trial court is satisfied that the huge property has been taken away from the petitioner and the property is sufficient for satisfying the needs then the trial court can pass any appropriate order in the facts and circumstances of the case. However, no order can be passed in this case. Trial Court shall also keep in mind that the object of the industrialisation is not taken away by granting any stay in the disguise which may lead to the destablisation of the industrial concern and may result in not directing the auction purchaser for want of sufficient land.
9. In the result, the revision petition is dismissed. No order as to costs.