Gujarat High Court
Mahila Sewa Sahakari Bank Ltd. vs Chief Post Master And 2 Ors. on 10 August, 2006
Equivalent citations: AIR2007GUJ72, AIR 2007 GUJARAT 72, 2007 (3) ALJ (NOC) 424 (GUJ.) = AIR 2007 GUJARAT 72, 2007 AIHC (NOC) 284 (GUJ.) = AIR 2007 GUJARAT 72, 2007 (3) ABR (NOC) 533 (GUJ.) = AIR 2007 GUJARAT 72, 2007 (3) AKAR (NOC) 325 (GUJ.) = AIR 2007 GUJARAT 72
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. The present petition is filed by 'Shri Mahila Sewa Sahakari Bank Limited' bearing Registration No. S-12446 dated 20.05.1974. The petitioner is having registered office at 109, Sakar-II, Opposite Town Hall, Ellis Bridge, Ahmedabad. The present petition is filed through an authorised officer/ Manager of the petitioner Bank.
2. It is stated in para 1 of the memo of petition that, The petitioner herein is a registered cooperative society registered under the Gujarat Cooperative Societies Act, 1961 and its registration Number is S-12446 dated 20.05.1974. The members of the petitioner-Bank are female and they belong to downtrodden class of society. The petitioner-bank is doing welfare activities for its members and the female persons belonging to the downtrodden class of the society. The members and beneficiaries of the petitioner-bank are nationals and citizens of India,....
3. The present petition is filed seeking a writ of mandamus and/ or any other appropriate writ, order or direction in the nature of mandamus directing the respondent authorities to release total amount of interest on KVPs (Kisan Vikas Patras) Rs. 1.5 crore forthwith along with 18% interest on the said amount from the date of rejection of the applications till its realisation. The petition was filed on 13.06.2006. The matter came up on 14.06.2006. The Court passed the following order, Rule returnable on 06.07.2006. Notice as to interim relief returnable on the same date, i.e. on 06.07.2006. Direct service qua the respondent No. 1 is permitted.
It will be open for the petitioner to serve respondent No. 2 by speed post at its own cost in addition to the regular mode of service.
4. On 28.07.2006 learned advocate Mr. Purvish Malkan appeared for respondent No. 3-Union of India (Notice through Secretary, Post & Telegraph Department, New Delhi).
The Court passed the following order:
At the request of Mr. Purvish Malkan, learned advocate appearing for respondent No. 3, the matter is adjourned to10th August 2006. No further adjournment shall be granted.
5. On 10.08.2006 learned advocate Mr. Malkan filed an affidavit in reply, which is taken on record.
6. With the consent and at the joint request of the learned advocates for the parties, the matter is taken up for final hearing and disposal.
7. The facts of the present case are that the petitioner bank purchased KVP of Rs. 50 lakhs on 19.09.1998. Thereafter, on 22.09.1998 the petitioner bank purchased KVP of Rs. 1 crore.
The aforesaid KVP of Rs. 1.5 crore became mature and amount of Rs. 3 crores was to be paid by respondent No. 1-Postal Department, on 19/22.03.2004. The petitioner bank made a request for the same.
Respondent No. 1 vide letter dated 20.03.2004 and 23.03.2004 rejected the request of the petitioner bank of making payment of interest and informed that as issuance of KVPs was irregular and in contravention of rules, only principal amount can be paid.
The petitioner bank made a representation, reiterating its request for payment of amount with interest on 23.03.2004.
On 26.03.2004 taking into consideration the huge amount involved the petitioner thought it fit to withdraw the principal amount under protest, keeping the issue of interest open so as to avoid further loss of interest.
Respondent No. 1-Department issued communication stating that the interest on the principal amount cannot be paid. This happened on 29.03.2004.
8. The petitioner bank as per the legal advice available, filed a complaint before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad in June 2004. When the said complaint came up for hearing on 23.01.2006, it transpired before the Consumer Commission that it has no jurisdiction to entertain the complaint. Therefore, the compliant was withdrawn with a view to avail appropriate remedy.
9. The petitioner then filed Special Civil Application No. 4376 of 2006 before this Court, but then the same was withdrawn as there was non joinder of the parties and as the Hon'ble Court was of the opinion that the petitioner should approach the Finance Department in the matter.
The petitioner approached Finance Department with a detailed representation dated 23rd March 2006. Despite the fact that the representation was made in the month of March 2006, nothing was heard by the petitioner bank till june and hence the present petition is filed on 13.06.2006
10. Learned advocate, Mr. Dharmesh V.Shah for the petitioner submitted that the matter is covered by a Division Bench judgement of this Court (Coram: B.J. Shethna & M.C. Patel, JJ.) in Letters Patent Appeal No. 1509 of 2004 in Special Civil application No. 2877 of 2003 decided on 17.08.2004. Learned advocate for the petitioner made available a copy of the judgement of the Division Bench.
Mr. Shah, learned advocate for the petitioner also placed on record a xerox copy of the order of the Hon'ble the Apex Court in SLP ( C) No. 15309 of 2005, CC 6662/ 2005 arising from the aforesaid judgement and order dated 17.08.2004 of the Division Bench.
The Hon'ble the Apex Court has passed the following order:
Delay is condoned. Heard learned Counsel for the petitioner. No merit. The special leave petition is dismissed.
11. Learned advocate Mr. Shah submitted that the judgement of the learned Single Judge in SCA No. 2877 of 2003 is reported in 2004 (3) GLH 561. Whereas the Division Bench judgement is reported in 'unreported judgement' section of the GLH, that is 2006 (1) GLH (UJ) 1.
12. Learned advocate Mr. Shah for the petitioner submitted that the learned Single Judge while deciding some other matter having almost identical facts was pleased to observe in para 4 of his judgement as under:
4. I have perused the case papers and have also heard the learned Counsel for the parties. Rule 6 of KVP Rules does not permit the petitioner society to purchase Kisan Vikas Patras, but the fact remains that such Kisan Vikas Patras have been purchased by the petitioner society on 6th March, 1997. It may be noted that it is always a matter of policy for the Union of India to decide the beneficiaries of the scheme. There is no legal right vested in the petitioner to purchase Kisan Vikas Patra and to earn interest thereon. When the beneficiaries are accurately prescribed by statutory Rules framed by the Union of India, the scope and extent of the said policy cannot be expanded so as to cover the similarly situated persons like the petitioner. There may be many more persons like the petitioner who are not entitled to purchase the Kisan Vikas Patra. The scheme is not meant for all the persons. It is explicitly clear from Rule 6 of the KVP Rules, 1988 that very few and limited persons who are referred in the Rules are entitled to purchase Kisan Vikas Patras. The vires of Rules are not challenged. Once the Rules are not challenged, the simple interpretation of the Rules, ousts the petitioner society from the scope and ambit of Rule 6 of the KVP Rules, 1988. Enough care has been taken by enacting Rule 13 for purchase of Kisan Vikas Patra in contravention of KVP Rules of 1988 Rule 13 has been enacted which unambiguously takes away the right of such unauthorised, improper and irregular purchaser to earn the interest on the principal amount for which Kisan Vikas Patra has been purchased. The function of the Court is to merely interpret the Rules as they are. The learned Counsel for the petitioner consistently submitted that some leniency may be shown by this Court to take deviation from the Rules and some interest may be allowed to be given from the respondents by issuing a writ under Article 226 of the Constitution of India, but the same is not permissible under the Rules, 1988.
Learned advocate Mr. Shah submitted that this judgement was carried in appeal being LPA No. 1509 of 2004 which was allowed and the judgement of the learned Single Judge was quashed and set aside by the Division Bench by judgement and order dated 17.08.2004 (referred to hereinabove). The Division Bench in para 6 has observed as under:
We have heard the learned advocate Shri Shah for the appellant and Ms.Davawala for the respondent. We have also carefully gone through the judgment and order passed by the learned Single Judge dismissing the writ petition. From the judgment of the learned Single Judge, it appears that the learned Single Judge refused to place the reliance on the judgment of another learned Single Judge delivered on 27.7.2001 in Special Civil Application No. 12508 of 2000 which was confirmed by the Division Bench of this Court in Letters Patent Appeal on the ground that the said judgment was delivered in Public Provident Fund (PPF) matter, whereas the instant petition was arising out of Kisan Vikas Patra Rules of 1988 and the Rules are very clear under which the appellant society was not entitled to purchase Kisan Vikas Patra. It also appears to us that the learned Single Judge has relied upon on his own judgment delivered in Special Civil Application No. 7913 of 1990 on 23.6.2004 wherein the question of purchasing National Savings Certificate (NSC) was there. Rules of National Savings Certificate (VI Issue) Rules, 1981 were pari-materia to the Rules of Kisan Vikas Patra Rules, 1988.
Learned advocate Mr. Shah submitted that the Division Bench considered the matter in detail and observed in para 7 as under:
It is no doubt true that there are specific Rules framed for purchasing Kisan Vikas Patra under which the appellant society as such would not be entitled to purchase Kisan Vikas Patra. In spite of this, the fact is that the respondent authority without informing or bringing it to the notice of the appellant society accepted the said amount way back in 1997 and it is only when in 2002 after a lapse of period of more than 5 and 1/2 years when the appellant society had applied for renewal of it, then only the appellant society was told that neither the said amount can be renewed nor it can get the amount with interest on it on its maturity date. If the appellant petitioner was told in 1997, then it being a society, it would have definitely invested the said amount in any other nationalised saving scheme. Having accepted the said amount from the appellant petitioner without bringing it to its notice that it was not entitled to purchase Kisan Vikas Patra, then in our considered opinion, it would not like good in the mouth of the respondent authority to say that the appellant society was not entitled for interest on Kisan Vikas Patra. The principle of unjust enrichment would also apply to the Government and its agencies. Having retained the amount of Rs. 30,000/- for a period of more than 5 years, the respondent authority cannot take the stand that it would not pay the amount of interest.
Learned advocate Mr. Shah submitted that in para 6, the Division Bench has referred to a judgement of another learned Single Judge delivered on 27.07.2001 in SCA No. 12508 of 2000, which was confirmed by the Division Bench, which the learned Judge thought it fit not to follow while deciding SCA No. 2877 of 2003 on the ground that the rules are different. In SCA No. 12508 of 2000, interest on the amount deposited in a PPF Account was denied on the ground that the deposit was irregular and was in violation of Section 4 of PPF Act, 1968.
The Division Bench dealing with this aspect observed in para 8 of its judgement and order dated 17.08.2004 in LPA No. 1509 of 2004 as under:
...When the judgment of another learned Single Judge of this Court in PPF matter is confirmed by the Division Bench, then in our considered opinion, the same was binding to the learned Single Judge. Merely because the Rules are different, that would not be a ground for discarding the said judgment. The principle remains the same. In the matter of Special Civil Application No. 12508 of 2000 almost the same question was there regarding irregularity committed while opening PPF Account. Here, in the instant case, there was irregularity committed by the appellant petitioner society in purchasing Kisan Vikas Patra. If the interest was allowed by the learned Single Judge of this Court in PPF matter, then we are of the considered opinion that on the same line, the appellant petitioner society was entitled to have interest on Kisan Vikas Patra purchased by it from the respondent authority because the appellant petitioner society was bona fide purchaser of Kisan Vikas Patra and for no fault of it, it cannot be penalised by withholding interest for a period of 5 and 1/2 years of Kisan Vikas Patra purchased by it way back in March 1997.
13. Learned advocate Mr. Shah invited attention of this Court to the observations made by the learned Single Judge in his judgement and order dated 27.07.2001 in SCA No. 12508 of 2000 to para 7, which reads as under:
7. Moreover, it was with open eyes that the PPF account was opened by the Postal Department in the joint names of the parents of the petitioners. There is no allegation of misrepresentation or concealment of facts by the account holders. As observed by this Court in the judgment dated 3-5-2000 in Special Civil Application No. 3422 of 2000, when the department had accepted the opening of the account and the petitioners or their parents never made any misrepresentation or concealed any fact nor suppressed any fact from the department, in such a situation, the functionaries of the Government (who have to deal with Savings Schemes which are public oriented schemes and to give an incentive to the members of the public at large for depositing the amounts to make the savings for a rainy day and earn interest on the said money as per the scheme) cannot be allowed to act and take such an arbitrary and incomprehensible stand after they themselves had accepted the opening of the account and the same was operated with addition of interest from time to time.
14. Mr. Malkan, learned advocate invited attention of the Court to the contents of the affidavit in reply in para para 4(b), 4(c) and 4(d) thereof.
These very arguments were advanced by the respondents in SCA No. 12508 of 2000 and SCA No. 2877 of 2003, but then the same were rejected by this Court in SCA No. 12508 of 2000 and LPA No. 1509 of 2004. The same are found unacceptable and hence rejected.
15. In view of the above discussion and in view of the fact that there is a binding decision in the matter of KVP itself, the present petition is allowed. The respondents are directed to pay the interest amount of KVPs purchased by the petitioner bank, with interest at the current bank rate of interest from the day it became payable till the date of realisation. Rule is made absolute. No order as to cost.