Calcutta High Court (Appellete Side)
Dr. Sujit Kumar Roy vs Union Of India & Ors on 2 March, 2009
Author: Chief Justice
Bench: Chief Justice
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05 02.03.09 M.A.T. 1364 of 2007
Dr. Sujit Kumar Roy
Vs
Union of India & Ors.
Re :- An appln. for Stay (CAN 3028/07)
Mr. Kamalesh Bhattacharyya,
Mr. Rajib Mohan Chatterjee.
.... For the Appellant.
Mr. A. K. Routh,
Mr. S. Pal Chowdhury.
.... For the Bank.
This order will dispose of M.A.T. 1364 of 2007 and
the Reference made in W.P. 5472 (W) 2007.
We have heard the learned counsel for the parties.
This matter has been adjourned on a number of
occasions at the request of the learned counsel for the
appellant. It was submitted before us that the
appellant is in the process of settling the matter with
the Bank. He had actually submitted a number of
offers which had not been accepted by the Bank. He
was, therefore, trying to increase the offer which may
be acceptable to the bank.
On the last occasion when the matter appeared, it
was specifically submitted by the learned counsel that
time may be granted till Monday so that one more
effort could be made to persuade the bank to accept
the amount offered by the appellant in full and final
settlement of the account. Learned counsel for the
Bank is, however, adamant that at no stage the Bank
had expressed its willingness to accept any of the
offers made by the appellant.
We may now proceed to decide the appeal.
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The appellant has filed the writ petition
challenging the notice issued by the Bank dated
9.9.2006 on the ground that it had been issued under
Section 13(2) of the Securitization and Reconstruction
of Financial Assets and Enforcement of Security
Interest (Second) Ordinance, 2002 calling upon the
petitioner to pay the debt by 60 days from the date of
issue of the notice failing which action under Section
13(4) of the said Act will be taken against the
petitioner.
It is claimed that the petitioner had submitted a
reply to the notice through a letter dated 27.4.2006
and it was pointed out that the notice was
unsustainable in law, as the 2002 Ordinance was
repealed with effect from 21.6.2002 on coming into
force of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as the said Act).
Since no valid notice has been issued under
Section 13(2) of the said Act, the follow up action
under Section 13(4) of the said Act was also vitiated.
The learned Single Judge, by the order dated
20.2.2006, dismissed the writ petition with the
observations that from the contents of the notice dated
9.9.2006, it is quite clear that the authority intended
to issue the notice under Section 13(2) of the said Act.
It was also noticed that in the Representation
dated 27.10.2006, the writ petitioner/appellant had
not taken the ground that the notice was issued in
terms of provisions of the ordinance and not of the Act,
he had raised only a vague and general plea that the
notice was illegal and not maintainable in law.
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The Trial Court also notices that the appellant
had dealt with the notice on merits. It is, therefore,
clear that he fully understood the purport of the
notice. He also understood that it was actually issued
in terms of the provisions of Section 13(2) of the Act.
The Trial Court observes that the Representation
having been dismissed on merits, the only remedy
available to the writ petitioner was to move the Debt
Recovery Tribunal under Section 17 of the Act.
The Trial Court came to the conclusion that mere
reference made to the wrong provision in a notice does
not make the notice bad. The Trial Court also holds
that wrong mentioning of the provisions has not
caused any prejudice to the writ petitioner/appellant.
Mr. Bhattacharya, learned counsel for the
appellant, has again reiterated before us that the
notice under Section 13(2) of the Act having not been
issued, in accordance with law, the action of the
respondent Bank under Section 13(4) of the said Act is
vitiated.
We are unable to accept the aforesaid submission of the learned Counsel. It is too well established that mere mentioning of a wrong provision would not vitiate the action of the authority provided that it is referable to a known source. Even mentioning of a wrong provision or omission to mention the provision that contains the source of power would not render an order null and void.
A Five Judge Bench of the Supreme Court in the case of Union of India v. Tulsiram Patel, (1985) 3 SCC 398, at page 501 held as follows :
4"....It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction. Similarly, if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr Ram Manohar Lohia v. State of Bihar (AIR 1966 SC
740) and Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal (1983(2) SCC 422).
The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule......"
In the case of N. Mani v. Sangeetha Theatre (2004) 12 SCC 278, at page 280 it was observed as under :
"A perusal of the order of the High Court shows that the principal reason which has prevailed with the High Court in setting aside the order dated 30.10.1995 is that there is no reference made therein to Section 11 of the Act. In our opinion, the Division Bench of the High Court was not right in forming the opinion which it has done. The power to grant permission has been 5 specifically conferred on the Government by the proviso inserted to Rule 14 by GO No. 1326 dated 6-9- 1995. It is noteworthy that in an earlier round of litigation initiated by Respondent 1 the constitutional validity of GO No. 1326 dated 6-9-1995 was upheld. Merely because Section 11 of the Act was not specifically referred to in the order dated 30-10-1995 that could not have been a ground for setting aside the permission dated 30-10-1995.
It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law".
In the case of High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat (2003) 4 SCC 712, at page 738 it has been observed as follows :
"It is further trite that non-mentioning or wrong mentioning of a provision of law would not invalidate an order if a source therefor can be found out either under general law or a statute law.
It is further well settled that when there are two sources of power, even if one is not applicable, the order will not become invalid if the power of the statutory authority can be traced to another source."
In the case of M.T. Khan v. Govt. of A.P., (2004) 2 SCC 267, at page 272 it was observed that :
6"....It is now well-settled principle of law that non-mentioning or wrong mentioning of a provision of law does not invalidate an order in the event it is found that a power therefor exists."
Hence, with the above observations, the stay application as well as the appeal are dismissed.
W.P. 5472 ( W) 2007 This writ petition was placed for hearing in view of the reference order dated 12th April, 2007. The learned Single Judge made a reference in view of the conflicting judgments rendered in WP No. 27716(w) of 2006 dated 22nd December, 2006 and another judgment passed by the learned Single Judge rendered in WP No. 4582(w) of 2007.
Since the issue involved in this case is identical to that of the case decided above, the Reference is answered in terms of the judgement delivered in MAT No.1364 of 2007.
Let the matter be placed before the appropriate Bench for disposal of the writ petition in accordance with law.
(SURINDER SINGH NIJJAR,
C.J.)
(BISWANATH SOMADDER, J.)
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