Disposed

Shiv Narayan and 4 Others v. State of U.P. and 3 Others

Allahabad HC29 May 2019WRIC/12455/2019

Case brief

AI extract

What is this about?

Writ petition by the sons of a deceased farmer challenging a recovery certificate issued against them as legal representatives and the arrest and 14-day detention of the petitioner No.1. The court held the recovery certificate illegal for non-compliance with Section 95A and the arrest violative of Article 21, directed determination of compensation and a decision on 10% recovery charges, and barred

What did the court decide?

Directions to the Chief Secretary to determine compensation payable to the petitioners, 50% by the respondent-Bank and 50% by the State, and to decide the question of recovery charges; no recovery fro

Shiv Narayan and 4 Others Vs State of U.P. and 3… — Cooperative Societies | Allahabad HC (2019)

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AFR (Judgment reserved on 29.04.2019) (Judgment delivered on 29.05.2019)

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Court No. - 59 Case :- WRIT - C No. - 12455 of 2019

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Petitioner :- Shiv Narayan And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Chandra Shekhar Counsel for Respondent :- C.S.C.,Abhishek Sharma

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri Chandra Shekhar, learned counsel for the petitioners, Sri I. S. Tomar, learned Additional Chief Standing Counsel for respondent Nos.1, 2 and 3 and Sri Rajeev Sharma assisted by Sri Abhishek Sharma, learned counsel for respondent No.4-Bank.

¶6

Briefly stated facts of the present case are that petitioners are uneducated poor farmers. Their father i.e. Sri Rameshwar took agricultural loan of Rs.1,50,000/- for purchase of a tractor on 12.09.2000 from the respondent No.4 U.P. Sarkari Gram Vikas Bank Ltd. Hamirpur, which is a cooperative society registered under the U.P. Cooperative Societies Act, 1965 (hereinafter referred to as 'the Act, 1965'). To secure the aforesaid loan, the father of the petitioners executed a mortgage deed dated 08.09.2000 in favour of the respondent No.4- Bank, whereby he mortgaged his agricultural land of khata Nos.345, 164 and 268. The terms and conditions of the aforesaid mortgage deed dated 08.09.2000 as filed by the respondent No.4 along with counter affidavit dated 22.04.2019, is reproduced below :

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“eS fd & jkes'oj iq= & jEek fuoklh xzke & /kqU/kiqj iksLV & vrjS;k Fkkuk& o ijxuk & Mkseiqj rglhy& o ftyk& gehjiqj dk gwaA

¶8

tks fd 15 fdrj vjkft;kr o vkSj ifjf'k"V esa fy[kh lEifRr 2-607 gs0 Fkkuk & o okd; ekStk dSFkho /kqU/kiqj ijxuk & Mkseiqj rglhy& o ftyk& gehjiqj

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esjh fefYd;r gS vkSj esjs futh dCTks o n[ky esa fcyk f'kjdr fdlh nwljs 'k[l ds gS o Ikw.kZr;k Hkkj eqDr gS vkSj mldh iwjh rQlhy ifjf'k"V esa nh xbZ gSA pwafd eS mRrj izns'k lgdkjh xzke fodkl cSad fy0 tks dksvkijsfVo ,sDV 1912 ds ekrgr ,d jftLVMZ lkslk;Vh gS] ftldk jftLVMZ dk;kZYk; y[kum es fLFkr gSA ¼ftldks bl rgjhj esa vkxs pydj cSad fy[kdj trk;k x;k gS½ dk lnL; gwa vkSj tks cSad ds ml uke ij Hkh ykxw gksxk tks tsjs nQk 10 ;w0ih0 dksvkijsfVo lkslk;Vh ,sDV 1965] j[kk tkosA

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vkSj pwafd cSad lnL;ksa dks [ksrh vkSj mlls lEcaf/kr fofHkUu vko';drkvksa ds fy, tehu dsk cU/kd j[kdj dtkZ nsrk gS A

¶12

vkSj pwafd VsªDVj gsrq eq>s +_.k dh vko';drk gS A vkSj pwafd mijksDr] vko';drkvksa ds fy, e s js izkFkZuk & i= ij cSad us mij of.kZr Hkwfe o vU; lEifRr dh tekur ij vkxs nh gqbZ 'krkZsa ij 150]000@& # ¼vadks eas½ #0 ,d yk[k ipkl gtkj ek= # ¼'kCnksa esa½ _.k nsuk Lohdkj fd;k gSA

¶13

eS cSad }kjk _.k Lohd`r i= esa fu/kkZfjr 'krkZsa dks _.k jkf'k ikus ds iwoZ iwjk d#axk vkSj ;fn fdlh 'krZ dks eSa iwjk u d#a rks cSad eq>s _.k jkf'k nsus ls budkj dj ldrk gSA

¶14

blfy, eS bl rgjhj ls uhps fy[ks _.k ikus ds ,ot eas viuh mijksDr Hkwfe o vU; LkEIkfRr dks lk/kkj.k cU/kd ds #i eas mijksDr #i;k ,oa ml ij fu;ekuqlkj fudyrs gq, C;kt ds Hkqxrku gsrq cSad ds ikl cU/kd djrk gwa vkSj vius vkidks fuEufyf[kr 'krkZsa ds vuqlkj ikcUn djrk gwaA

¶15

1- ;g fd cSad ls fy;k x;k 150000 #0 ¼vadks esa½ ,d yk[k ipkl gtkj ek= #0 ¼'kCnksa esa½ _.k rQlhy vnk;xh esa vafdr C;kt lfgr fu/kkZfjr fdLrksa eas vnk d#axkA ;fn cSad }kjk dtZ fdLrksa eas fn;k tkrk gS rks vnk;xh dh igyh fdLr cSad ls _.k dh izFke fdLr feyus ds ckn cSad ds fu;ekuqlkj izkjEHk gksxhA _.k izkIr gksus ds fnukad rd ;fn C;kt nj esa dskbZ la'kks/ku fd;k tkrk gS rks eS ml la'kksf/kr C;kt nj ds vuqlkj _.k dk Hkqxrku d#axkA

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2- ;g fd ;fn eS izlafonk ds vuqlkj fdlh le; _.k dh fdLr dk Hkqxrku u d#a vFkok dsoy mij fy[ks x;s dk;Z esa cSad ds fu;ekuqlkj mi;ksx u d#a rks cSad dks vf/kdkj gksxk vkSj eq>s dksbZ vkifRr ugh gksxh fd cSad eq>ls esjs [kkrs es ml le; fudyrk gqvk _.k dk lkjk /ku C;kt lfgr cU/kd Hkwfe o vU; lEifRr o eq>ls rqjUr olwy dj ysa vkSj fdLrksa esa vnk djus dh lqfo/kk cUn dj nsaA cSad dks fcuk vU; dkuwuh dk;Zokgh ds vf/kdkj [kRe fd;s] ;g Hkh vf/kdkj gksxk fd dksbZ fdLr okilh _.k vFkok C;kt fuf'pr rkjh[k ij u vnk gksus ij ctk; dqy _.k ds flQZ okftcqy vnk fdLr e; nf.Mr C;kt nks izfr'kr olwy dj ysa ftldk eS nsunkj jgwaxk] mlds vfrfjDr ;g Hkh 'krsZ gS &

¶17

¼d½ ;g fd ckotwn mij nh gqbZ bl 'krZ ds _.k Hkqxrku

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fdLrksa esa gks] eq>s ;g vf/kdkj gksxk fd eS caSd _.k dk dqy ;k va'k ;k mldk C;kt mldh fdLr okftcqy vnk gksus ls igys cSad dks ns nwaxkA

¶20

¼[k½ ;g fd eS _.k nh xbZ jde dk dsoy mij nh xbZ en esa fy[ks x;s dk;ksZ eas mi;ksx d#axk vkSj fdlh vU; dk;Z esa u ykmaxk ;fn bl 'krZ dh ikcUnh eS u d#axk rks _.k ds izfr ,d gtkj #i;k ;k mlds fgLls dh ipkl #i;s dh nj ls cSad dks gjtkuk nsus dk eSa fcyk mt ftEesnkj gksmaxkA

¶21

¼x½ ;g fd eS [kpsZ dk iwjk fglkc j[kaxwk vkSj cSad ds le; le; ij eakxus ij fn[kkmaxk vkSj cSad ls Hksts x;s fdlh O;fDr dks viuk fglkc fn[kkus ls euk ugh d#axkA

¶22

¼?k½ ;g fd eS cU/kd i= esa nh xbZ Hkwfe ;k vU; lEifRr ftldh rQlhy ifjf'k"V eas fy[kh xbZ fdl izdkj ds py jgs eqdnes] vnkyr dqdhZ] cdk;k yxku ;k dksbZ vkSj ljdkjh vkfn ds ckn fdQk;r ls ikd & lkQ vkSj cjh gS ¼flok; mlds tks rQlhy vkjkth ds uhps fy[sk fn;k x;k g S A½ vxj dksbZ vkSj ckr fudys ;k gdh;r fefYd;r ds ckjs es uqDl tkfgj gks ;k esjh dskbZ xyr c;kuh tkfgj gks rks cSad viuk dqy erfyck fcyk bfUrtkj fe;kn eq>ls QkSju olwy dj ysA

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¼p½ ;g fd eS o esjs okfjlku bl izlafonk esa ca/kd dh xbZ Hkwfe dks ;k viuh lEifRr o gdh;r dsk fcuk cSad dh vkKk ys fy, fdlh vU; O;fDr dks fdlh izdkj ls cU/kd] o;] fgck ;k eqUrfdy djus dk eqLRkgd u gksmaxk vkSj u d#axkA

¶24

¼N½ ;g fd ;fn bl cU/kd i= eas nh xbZ Hkwfe ;k mldk dksbZ Hkkx ;w0 ih0 dUlkfyMs'ku vkQ gksfYMax ,sDV ds vUrxZr ;k fdlh vkSj dkuwu ls esjs vf/kdkj ls fudy tkos rks tks Hkwfe mlds ,ot es eq>s izkIr gksxh og cSad ds ikl cU/kd le>h tk;sxh ;k tks eqvkfotk eq>dks feyus dks gS oks feys ml ij cSad dk ckj ykxw gks tkosxk vkSj cSad dks iw.kZ vf/kdkj gksxk fd viuk ikouk bl jde ls olwy dj y s aA

¶25

¼t½ ;g fd ;fn ;w0 ih0 bEiksft'ku vkQ Lkhfyax vkQ ySaM gksfYMax ,DV Lku~ 1960 ;k fdlh vkSj dkuwu ds vUrxZr bl cU/kd i= }kjk cU/kd dh x;h Hkwfe ;k mldk dksbZ Hkkx ljdkj eas fufgr gks tkrk gS rks tks Hkh Hkwfe esjs vf/kdkj e s jg tkosxh og cSad ds ikl cU/kd le>h tkosxh vkSj cSad dsk ;g vf/kdkj gksxk fd ljdkj }kjk ns; esjh ljdkj esa fufgr Hkwfe dk eqvkotk izkIRk dj ysa vkSj mlesa ls esjs [kkrs es fudyrk gwvk ckdh _.k C;kt lfgr olwy dj ysos vkSj ;fn 'ks"k cpsa rks eq>s ns ns] vkSj eS bdjkj djrk gwa fd tks dk;Zokgh bl ,sDV ds vUrxZr cU/kd Hkwfe ds lEcU/k esa gksxh mldh bRryk cSad dks nsrk jgwaxkA cxSj jtkeUnh cSad fdlh ns; eqvkotk esa ls dskbZ jde eSa olwy u d#axkA

¶26

¼>½ eS la;qDr ;kstuk dh iwfrZ gsrq cSad ls _.k ys jgk gwa vkSj eS mlh la;qDr ;kstuk dh iwfrZ gsrq _.k jkf'k dk mi;ksx d#axkA 3- ;g fd fcyk ,ot cSad ds _.k ds eSus bl rgjhj }kjk

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viuh ml leLr Hkwfe o vU; lEifRr dks tks ifjf'k"V esa fn[kkbZ xbZ gS e; rekeh gqdwd o lEifRr e; nj[krku] dqvka bekjr tks vc ekStwn gS ;k Hkfo"; esa gksosa crkSj lk/kkj.k cU/kd ds cSad ds gd esa eqUrfdy dj nh gS rkfd ;g lkjh Hkwfe o lEifRr cSad ls fy, x;s _.k o C;kt dh vnk;xh dh vekur le>h tkosA

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4- ;g fd eS mijksDr Hkwfe o vU; lEifRr ij viuk dCtk cuk;s j[kwaxk vkSj vxj fdlh otg ls esjh fefYd;r o gdh;r esa dksbZ n[kyvUnkth gks ;k gksus dk vUns'kk gks rks QkSju cSad dsk lwpuk nwaxk vkSj gj rjg enn nwaxk fd og viuk dqy erkyoh olwy djus eas dke;kc gksosA

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5- vkSj ;g fd vxj bl eqgk;ns dh 'krkZsa dks rksMwa ;k vxj eS QthZ dk dqy ;k tqt erkyok dh ;k mlds lwn dh vnk;xh u d#a ;k dtZ dk dskbZ tqt eq> ij ckdh jgs vkSj cSad ds eqgk;ns dh 'krkZsa ds eqrkfcd fn;s gqDe ij ;k vnk;xh okftc gks tkus ij vnk u gks ;k eS vnk u d#a rks cSad dks fcuk mu nhxj dkuwuh dk;Zokfg;ksa ds v[kr;kj [kRe fd;s ;g v[r;kj gksxk fd fcuk esjh vkgUnk jtkeUnh ds ;k fdlh vnkyr dh enk[yr ds bl rgjhj es a jsgu'kqnk dqy ;k vkjkth o vU; lEifRr dks [okcktkjh uhyke djk dj [kqn ckrphr djds r; dj ysa] ;k Lo;a ml ij dCtk dj ysa vkSj mldh dher eq>s fn;s x, dtZ vkSj lwn dh vnk;xh esa eqtjk dj ysa] vkSj bl dk;ZOkkgh eas fd;k x;k reke [kpkZ oxSjg Hkh olwy dj ysa vkSj vxj cSad dk iwjk erkyck e; lwn o [kpkZ cU/kd dh gqbZ Hkwfe dh dher ls vnk u gks ldsa rks cSad dks ;g Hkh v[r;kj gksxk fd ckdh erkyoh esjh tksr o esjh nhxj tk;nkn ls olwy dj ysaA

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6- ;g fd bl rgjhj dh 'krZ s a eq> ij o esjs ewfjlku okfjlku tku'khuksa ij Hkh ml oDr rd ykxw gksxk tc rd fd cSad ls fy;k x;k dtkZ e; lwn vnk ugh gks tkosxkA ;fn cSad dk uke tsj nQk 10 ;w0 ih0 dksvkijsfVo lkslkbVh ,DV 1965 rcnhy gks tkos rks Hkh cSad vius u;s uke ls bldh ikcUnh eq>ls djk ldsxhA

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7- eS rlnhd djrk gwa fd C;ksjk izcU/kd tehu o vU; lEifRr dk ifjf'k"V esa fy[kk gS og fcYdqy lgh gS

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8- ;g fd bl rgjhj ds eksrkfcd dksbZ Hkh elyk] rQ#[kk ;k eqdnek tks esjs vkSj cSad ds chp esa iSnk gksxk jftLVªkj dksvkijsfVo lkslkbVht] ;w0 ih0 y[kum dks Qslys ds fy, Hkstk tk;xk vkSj ml ij mudk gqDe eq>dks ekU; gksxk rFkk eS mlls ck/; gwaxkA bl vkys[k dh iwfrZ ,oa cSad }kjk Lohd`r gks tkus ij blesa fyf[kr /kujkf'k cSad ds ikl esjs [kkrs esa tek le>h tkosxh vkSj eq>s ns; gksxhA

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rQlhy vnk;xh

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dk;Z ftl gsrq _.k Lohd`r _.k jkf'k izfr'kr okf"kZd C;kt dh nj fdLrks esa vnk;xh gqvk dh vof/k

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150000@& ------------------------ 7 o"kZ
VSªDVj

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pqukaps ;g mijksDr rgjhj vkt crkjh[k 8-9-2000 dey cUn djds geus #c# x-----------tSy dj fn;s tks eq>s iw.kZ Lohdkj gSA

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_.k jkf'k ds fodz; fd;s gq, ---------------------------------------------------------gklZ ikoj Mhty@ fctyh ifEiax lsV@ VsªDVj@ bUtu ij cSad dk izFke Hkkj jgsxk rFkk ;g lEifRr Hkh cSad ls fy;s x, _.k o C;kt dh ------------ dh vekur lEk>h tkosxhA”

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Borrower Rameshwar defaulted in payment of loan. He died on 16.04.2008 . The land in question was joint holding of the deceased borrower Rameshwar and some other persons. The mortgage was made by the deceased-borrower Rameshwar of his share in the land. After his death, the names of the petitioners were mutated in the revenue records with respect to the share of their father Rameshwar. Instead of proceeding under the Act, 1965 or to enforce the mortgage deed, the respondent-Bank issued and forwarded to the Collector, Hamirpur against the petitioners (sons of the deceased borrower), a recovery certificate dated 18.06.2013 under Section 95A of the Act, 1965 for recovery of Rs.9,16,501/- including 10% collection charges, as arrears of land revenue. Pursuant to the aforesaid recovery certificate, the petitioner No.1 was arrested by the

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respondent No.3- Tehsildar, Tehsil Sadar, Hamirpur on 27.02.2019 and was confined in jail for fourteen days from 27.02.2019 to 12.03.2019 .

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It is the case of the petitioners that the respondent No.4 issued a notice dated 10.05.2018 to the petitioner No.1 as successor of the borrower Rameshwar intimating total arrears of Rs.19,978,775/- and offered for rebate of Rs.16,98,867/-, if the principal amount of Rs.1,50,000/- is deposited. It is the case of the petitioners that they were making efforts to arrange the required money to pay all the arrears of loan of their father to the respondent No.4 Bank. But in the meantime, the petitioner No.1 was arrested by the respondent No.3 at the instance of respondent No.4.

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On behalf of the respondent No.2 (District Margistrate, Hamirpur), a counter affidavit dated 23.04.2019 has been filed. The respondent No.3 (Tehsildar) has filed personal affidavit dated 22.04.2019 and a counter affidavit dated 23.04.2019. The respondent No.4- Bank filed a counter affidavit dated 22.04.2019, first supplementary counter affidavit dated 24.04.2019 and a second supplementary counter affidavit dated 25.04.2019. A rejoinder affidavit to the counter affidavit of the respondent No.4 has been filed by the petitioners.

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Referring to the provisions of Section 12B of the U.P. Agricultural Credit Act, 1973 (hereinafter referred to as 'the Act, 1973'), in his counter affidavit, the respondent No.4 justified the action of arrest of the petitioner No.1 and recovery of arrears of the deceased borrower from the petitioners as arrears of and revenue by placing reliance upon the provisions of Section 12B of the Act, 1973, the provisions of Section 95A of the

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Act, 1965 and Section 181 of the U.P. Revenue Code, 2006 . In paragraphs 3, 4, 6, 8 and 19 of the counter affidavit, in paragraphs 3, 4, 5, 10, 11, 12 and 17 of the supplementary counter affidavit dated 24.04.2019 and in paragraphs 4, 5, 6 and 8 of the second supplementary counter affidavit dated 25.04.2019, the respondent No.4 - Bank has stated as under :

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“ Counter Affidavit

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3.That before giving parawise reply of the writ petition it is necessary to bring the following facts and circumstances to kind notice of the Hon'ble High Court for better and proper appreciation of controversy involved in the case.

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4. That this writ petition has been filed by the petitioner with the prayer for the issuance of a writ order order direction in the nature of mandamus commanding the respondents to issue the correct statement of accounts of loan to the petitioners and to accept the actual balance of loan amount by giving benefit of OTS scheme in easy installment.

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6. That it has been stated in para 4 of the petition that the petitioner no 1 was arrested and sent to jail pursuant to recovery certificate issued by the bank on 27/02/19.

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8. That the fact is that the recovery certificate was issued by the respondent no 4 against the petitioners as long back as on 18/06/13 as the land of late Shree Rameshwar was mortgaged by him as security for the repayment of the loan. This very mortgaged land has been inherited by the petitioners and it is their pious duty to repay the loan taken by their father. This recovery certificate was issued by the respondent no 4 in accordance with the provisions of section 12B of UP Agriculturalist Credit Act. The true copy of the recovery certificate issued by the respondent no 4 is enclosed herewith as Annexure CA 1 to this affidavit.

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19. That the contents of para 7 of the writ petition are not admitted. The petitioners are wilfully and deliberately avoiding the payment of the balance amount of loan since 2013 when the recovery certificate was issued against them as the land mortgaged by the father of the petitioner in favour of the bank in respect of this loan has been inherited by the petitioners. The true copy of the record showing the mortgage of the land by the father of the petitioners is enclosed herewith as annexure no 2 to this affidavit.

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First Supplementary counter affidavit dated 24.04.2019

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3. That it is relevant to point out here that Shree Rameshwar – the father of the petitioners took agricultural loan of Rs.1,50,000/- on 12/09/2000 for the purposes of tractor from the respondent no 4. As security for the repayment of the loan, he had mortgaged his agricultural land in favour of the respondent no 4.

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4. That this amount of loan was at the agreed rate of 15% interest and was to be repaid in a period of 9 years on six monthly installments.

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5. That it is relevant to point out here that neither the original borrower Shree Rameshwar no the petitioners have repaid a single penny

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towards the repayment of the loan. However, Shree Rameshwar died on 16/04/2008. Thereafter the petitioners also did not pay anything towards the repayment of the loan.

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10. That thereafter another recovery certificate dated 18/06/13 was issued by the respondent no 4 to the collector in which the main borrower Shree Rameshwar has been mentioned as dead specifically and thereafter the names of the petitioners are mentioned. That in such circumstances, the collection authorities cannot ignore the fact that the bank had informed the death of main borrower to them.

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11. That under section 181 of the UP Revenue Code 2006, it is clearly mentioned that if at any time before or after the commencement of the proceedings for recovery, the defaulter dies, the proceedings except arrest and detention may be commenced against the legal representatives of the defaulter as if they themselves were the defaulters.

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12. That similarly under section 12B of the Agricultural Credit Act 1973, the borrowing institution has authority to initiate recovery proceedings against the heirs of the defaulter and they shall be liable only to the extent of the property of the deceased which has come to their hands and which has not been disposed of.

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17.That it is therefore expedient in the interest of justice that this supplementary counter affidavit may be taken on record and may be taken into consideration while deciding the controversy involved in this case.

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Second supplementary counter affidavit dated 25.04.2019

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4. That a fresh OTS scheme has already been proposed by the UP Sahkari Gram Vikash Bank to the state government and there is every possibility that approval/ permission would be granted by the state government shortly.

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5. That in that eventuality, the respondent No.4 would grant all possible benefits to the petitioner within the parameters of the OTS scheme approved by the government.

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6. That under the facts and circumstances of the case, the respondent no 4 is ready and willing to accept such amount from the petitioner and within such time as may be ordered by this Hon'ble High Court.

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8. That it is therefore expedient in the interest of justice that this affidavit may be taken on record and may be considered while deciding the controversy involved in this case. ”

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7. Counter affidavits with similar contents have been filed separately by respondent Nos.2 and 3. In paragraphs 6, 7, 8, 18 and 19, the respondent No.3 has stated , as under:

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“6. That the respondent bank has sent recovery certificate dated 18-06-2013 to the District Magistrate, Hamirpur for the realization of Rs.9,16,501 as an arrears of land revenue. This recovery certificate was sent from the office of District Magistrate, Hamirpur to the office of Tehsildar, Sadar, Hamirpur and was received on 26-08-2013.

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7. That the bank has issued the aforesaid recovery certificate for the realization of the amount of Rs.916501/- (Nine lac sixteen thousand and five hundred one) from the defaulters namely Rameshwar (deceased) S/o Ramma, Shiv Narayan, Shiv Prasad, Ram Prasad, Jay Ram and Ram

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Narayan all sons of Late Rameshwar who were said to have given the loan for agricultural works.

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8. That the copy of afore-said recovery certificate was given to the then collection Amin Sri Satish Chandra with direction to realize the aforesaid amount from the defaulters as stated therein.

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18. That again on their default, on the report of collection Amin dated 2502-2019, the deponent issued arrest warrant (R.C. Form- 37) dated 25-022019 against the petitioners individually in their name under Section 171 of the U.P. Revenue Code, 2006.

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19. That pursuant to afore-said arrest warrant, the petitioner no.1 could only be arrested on 27-02-2019 for being caught on the spot and after arresting the deponent by issuing letter dated 27-02-2019 to Superintendent District Jail, Hamirpur sent him to the district jail (in lack of lock-up in the Tehsil-Hamirpur due to construction of new Tehsil Building) from 27-022019 to 12-03-2019.”

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Along with the counter affidavit, the respondent Nos.2 and 3 have filed copies of the entire papers relating to recovery against the petitioners. Annexure-14 to the counter affidavit of the respondent No.3 dated 23.04.2019 is the report of the Amin dated 25.02.2019 which neither bears any order of the respondent No.3 nor shows that when the petitioner No.1 was brought by the Amin, he was examined by the respondent Nos.2 and 3 and before sending him to jail. The report of the Collection Amin dated 25.02.2019 filed as Annexure-14 to the counter affidavit is reproduced below :

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“lsok esa]

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Jheku rglhynkj lkgc rglhy] gehjiqjA

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egksn;]

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ckadhnkj f'koujk;u] f'koizlkn] jkeizlkn] t;jke] jkeujk;u ,l0@ vks0 jkes'oj m0 iz0 lgdkjh xzke fodkl cSad fy0 'kk[kk gehjiqj dk eq0 & 916501-00 $ vU; dk ckadhnkj gS fdUrq ckadhnkjks }kjk dksbZ Hkh /kujkf'k tek ugh djk;h x;h gSA

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vr% ckadhnkjksa ds fo#) fxjQrkjh vf/ki= tkjh djus dh n"kk es gLrk{kj djus dh d`ik djsaA

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1- f'koujk;u ,l0@ vks0 jkes'oj fuoklh&/kqa/kiqj 2- f'koizlkn ,l0@ vks0 jkes'oj ^^ enu eqjkjh la0 vehu

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3- jkeizlkn ,l0@ vks0 jkes'oj ^^ rglhy & gehjiqj

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4- t;jke ,l0@ vks0 jkes'oj ^^ fnukad & 25-02019

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5- jkeujk;u ,l0@ vks0 jkes'oj ^^

¶88

9. In paragraphs 5, 6, 7 and 8 of the rejoinder affidavit filed by the petitioners in reply to the counter affidavit of the respondent No.4 , have stated as under:

¶89

“5. That in reply to the contents of para Nos.5, 6, 7 of the counter affidavit it is humbly submitted that inspite of repeated request the Collectorate authorities did not provide copy of recovery certificate or citation due to which the same could not be challenged in the instant writ petition , so far as arrest and detention of petitioner No.1 in jail w.e.f. 27.02.2019 to 12.03.2019 is concerned, the arrest/ detention was made without giving any notice or information to the petitioner No.1. It is also submitted that Sri Rameshwar, father of petitioners took loan and he died on 16.4.2008 then it was duty of bank to substitute the petitioners in the place of loanee then notice of recovery was to be issued, but neither the bank nor the Collector followed prescribed procedures of law and the petitioner No.1 was illegally detained in jail for about 15 days. During this period the fundamental rights of petitioner No.1 were illegally suspended, hence he is entitled for compensation to the tune of Rs.20 lacs from the respondent authorities and this Hon'ble Court may kindly be pleased to consider the violation of fundamental rights of petitioner No.1 and further be pleased to direct the respondents to pay compensation of Rs.20 lacs to the petitioner No.1.

¶90

6. That the contents of para Nos.8 and 9 of the affidavit as stated are not admitted. Since the land of loanee was mortgaged as security with the bank no question of arrest of petitioner No.1 arises under the law. The petitioners who are poor farmers have always been ready to repay the actual balance loan amount, but it is the respondents, who did not furnish correct statement of account and amount of balance, the respondents have not come with clean hand and heart before this Hon'ble Court. The respondents/ respondent bank have illegally imposed recovery charge/ penal interest. The original principal loan amount was only Rs.1,50,000/but the demand is shocking and exorbitant.

¶91

7. That in reply to the contents of para Nos.10, 11 and 12 of the affidavit it is submitted that as soon as the petitioners came to know about liability through notice they started making effort of arrangement of money to deposit in bank, in the meantime the petitioner No1 was illegally arrested on 27.02.2019 whereas the O.T.S. was in existence upto 28.2.2019. The petitioner No.1 was malafide arrested before the expiry of O.T.S. limitation. When the petitioners were denied justice from the respondents they sought appropriate relief in this Hon'ble Court in writ petition.

¶92

8. That in reply to the contents of para Nos.13, 14 and 15 of the affidavit it is submitted that the petitioner No.1 was arrested on 27.2.2019 whereas the O.T.S. time was to be expired on 28.2.2019. The arrest of petitioner No.1 before expiry of O.T.S. time is totally arbitrary. The writ petition has been filed on valid grounds which may be allowed with cost.”

¶93

10. Learned counsel for the petitioners submits that the entire

¶94

¶95

recovery proceedings against the petitioners and the arrest of the petitioner No.1 is wholly arbitrary, illegal and unconstitutional and violative of fundamental rights. The petitioners are uneducated poor farmers and they cannot afford to fight with the respondents authorities for lawful cause and, therefore, finding no way to get rid of from the arbitrary and illegal actions of the respondents on one hand and on the other hand to buy peace in compelling circumstances, the petitioners started making effort to somehow arrange money to get rid of from the illegal recovery by paying the principal loan amount of their deceased father, under the one time settlement (OTS) scheme. By illegal arrest of the petitioner No.1, the respondents have breached the fundamental rights of the petitioners under Article 21 of the Constitution of India. Recovery charges shows in the recovery certificate as 10% of the arrears is wholly illegal and against the law laid down by the full bench of this Court in the case of Maharajwa and others vs. State of U.P. and others, 2013 (1) ADJ 426 (FB). The petitioners being son of the deceased-borrower could not have been arrested either under the provisions of the Act, 1965 or the U.P. Revenue Code, 2006 or the Act, 1973.

¶96

He further submits that in view of the pleadings made by the petitioners in the writ petition and supplementary affidavit and by the respondents in their counter affidavits and supplementary counter affidavits on the points aforementioned, the appropriate relief may be granted by this Court, as may be deemed fit and appropriate under the facts and circumstances of the case.

¶97

Learned Additional Chief Standing Counsel admits that the petitioner No.1 could not have been arrested either under the provisions of the Act, 1965 or the Act, 1973 or the U.P. Revenue

¶98

¶99

Code, 2006 but he submits that the respondent No.4 has not informed the respondent Nos.2 and 3 that the borrower was the father of the petitioners and not the petitioners. Instead of informing so, the respondent No.4 mentioned the name of the petitioners in the recovery certificate as defaulters. He submits that lapses which took place resulting in arrest of the petitioner No.1, were wholly unintentional and, therefore, a lenient view may be taken by the court.

¶100

Learned counsel for the respondent No.4 submits that in the recovery certificate, the respondent No.4 has mentioned the borrower Rameshwar as dead. Therefore, the respondent Nos.2 and 3 should have understood that the borrower was Rameshwar and the petitioners are successors. He admits that under the facts and circumstances of the case, the petitioner No.1 could not have been arrested under the provisions of the Act 1965 or the Act, 1973 or the U.P. Revenue Code, 2006. He submits that OTS scheme is likely to be announced shortly under which the petitioners may pay the loan as per scheme of the Government and in the meantime no action is proposed to be taken against the petitioners. He prays that a lenient view may be taken against the respondent No.4.

¶101

Discussion and Findings:-

¶102

I have carefully considered the proceedings made by the parties and the submissions of the learned counsels for the parties and with their consent, the following questions are formulated for determination :

¶103

(a) Whether the respondents could have proceeded to recover the dues of the deceased borrower from his legal representatives, i.e. the petitioners and to what extent and in what manner?

¶104

¶105

(b) Whether arrest of the petitioner No.1 by the respondents was arbitrary, illegal and violative of Article 21 of the Constitution of India? If the answer is in affirmative, then what consequences shall follow?

¶106

(c) Whether under the facts and circumstances of the case, recovery charges @ 10% may be recovered from from the petitioners?

¶107

(d) Whether the petitioners may apply to the respondent No.4 for one time settlement to buy peace and to avoid further harassment?

¶108

Question No.(a):- Whether the respondents could have proceeded to recover the dues of the deceased borrower from his legal representatives, i.e. the petitioners and to what extent and in what manner?

¶109

Undisputedly, the recovery certificate dated 18.06.2013 was issued by the respondent No.4 Bank under Section 95A of the Act, 1965. For ready reference, the provisions of Section 95A of the Act, 1965, is reproduced below:

¶110

“ 95-A. Special provision for recovery of certain dues of agricultural society. (1) The Registrar may, on an application made by society referred to in Section 34 or an agricultural credit society for the recovery of arrears of any loan advanced by it or any instalment thereof to any member and on its furnishing a statement of accounts in respect of such loan and after making such inquiries , if any, as he thinks fit, issue a certificate for recovery of the amounts due .

¶111

(2) A certificate issued by the Registrar under sub-section (1) shall be final and conclusive proof of the dues which shall be executable under Section 92."

¶112

Procedure for recovery of loan against a member of cooperative society under the Act, 1965:-

¶113

Facts of the case as disclosed by the counter affidavits filed by the respondent Nos.2, 3 and 4 clearly established that the respondent No.4- Bank has not followed the mandatory

¶114

¶115

provisions of Section 95A before issuing a recovery certificate against the deceased-borrower Rameshwar who was a member of the respondent No.4 cooperative society. Section 95A empowers the Registrar as defined in Section 3 of the Act, 1965 to issue a certificate for recovery of the amounts due, only on an application made by Society referred to in Section 34 or an Agricultural Credit Society for the recovery of arrears of any loan advanced by it or any installment thereof to any member and on its furnishing a statement of accounts in respect of such loan and after making such inquiries, if any, as he thinks fit. Neither any application was filed nor the procedure as provided under Section 95A of the Act was followed by the respondent No.4 and instead unauthorisedly the recovery certificate dated 18.06.2013 was issued and forwarded to the Collector and pursuant thereto the respondent No.3 illegally arrested the petitioner No.1.

¶116

In Ram Narayan Himmat Ram vs. Kraya Vikraya Sahkari Ltd., Jalaun and others, 1986 AWC 273 (Paras-5, 6 and 7), a Division Bench of this Court explained the provisions of Section 95A of the Act, 1965 and held as under:

¶117

“ 5. It is true that under Sub-section (I) of Section 95A, after an application has been made to the Registrar for recovery of arrears of loan advanced by the society, the Registrar has been given discretion to hold such enquiry into the claim made by the society as he thinks fit. This provision, however, does not mean that while issuing recovery certificate, the Registrar can give a go by to the principles of natural justice . As and when an application is made to the Registrar to recover any balance or installments of loan from any debtor, the registrar has to, in accordance with the principles of natural justice, inform the debtor concerned about the claim made by the society so that the debtor may approach and satisfy him about the following matters :

¶118

(1) That the debtor is not a member of the Society ;

¶119

(2) That the amount sought to be recovered is not in fact a loan

¶120

advanced by the Society to him;

¶121

(3) That the amount of loan has either been wholly or partly paid up.

¶122

¶123

6. It is after the debtor has shown cause that a discretion arises with the Registrar either to depending upon the circumstances of the case, hold such enquiry in the matter as he thinks fit and proper. In the instant case, it is clear that although the Petitioners wanted to contest their liability, the Registrar issued the recovery certificate to the collector without affording them any opportunity to place their version before him. The Respondent persisted in recovering the said amount as arrears of land revenue despite the order made by the Collector on 21.8.1976 requiring the Assistant Registrar to look into the matter before proceeding to recover the amount from the Petitioner, on the pretext that the said order of the District Magistrate was never brought to the notice of the Registrar. Be that as it may, as already explained, the Registrar was bound to, at least inform the Petitioner about the claim made by the society and to hear him before issuing any recovery certificate in respect of the claim made by the Cooperative Society. As this has not been done, the action of Respondent in pressing the recovery certificate cannot be sustained.

¶124

7. In the result, the petition succeeds and is allowed. The impugned recovery proceedings are quashed. It is, however, made clear that the order will not stand in the way of the Registrar to issue fresh recovery certificates against the Petitioner after affording them an opportunity to substantiate their version. Parties are directed to bear their own costs. The amount, if any, deposited by the Petitioner under the interim order made by this Court shall be disposed of in accordance with the ultimate decision regarding issue of fresh recovery certificate that may now be taken by the Registrar. ” (Emphasis supplied by me)

¶125

In Beedha Singh vs. District Registrar, Cooperative Societies, Mathura and others, 1986 All.L.J. 616 (para-5) , a Division Bench of this Court explained the provisions of Section 95A of the Act, 1965 and held as under:

¶126

“5. So far as remaining amount is concerned, it is true that under sub-sec. (1) of Section 95A the Registrar has been, after an application has been made to him for recovery of arrears of loan advanced by the society, empowered to issue a recovery certificate and to, in his discretion, hold such inquiry into the claim made by the society as he thinks fit. This provision, however, does not mean that while issuing recovery certificate, the Registrar can give a go by to the principles of natural justice. As and when an application is made to the Registrar to recover any balance or installments of loan from any debtor, the Registrar has to, in accordance with the principles of natural justice, inform the debtor concerned about the claim made by the Society so that the debtor may approach and satisfy him that the amount sought to be recovered from him is not in fact due. It is after the debtor has shown cause that a discretion arises with the Registrar depending upon the circumstances of the case to hold such inquiry in the matter as he thinks fit and proper. In the instant case, it is clear that the Registrar has issued the recovery certificate to the Collector without affording any opportunity to the Petitioner to place his version before him. Consequently there is no escape from the position that the Registrar has,

¶127

¶128

while issuing the recovery certificate, failed to comply with the principles of natural justice and this defect has the effect of vitiating the entire recovery proceedings including the impugned notice issued by the Tahsildar . ”

¶129

(Emphasis supplied by me)

¶130

19. On 22.04.2019, this court confronted the respondent No.4 with relevant provisions and judgments including those referred above and directed as under:

¶131

“6. The affidavits filed by the respondent nos.3 and 4 are wholly unsatisfactory and prima facie indicate gross violation of the provisions under Chapter 4 of U.P. Agricultural Credit Act, 1973 including Section 12B, Section 95-A of U.P. Cooperative Societies Act, 1965, Section 171 of U.P. Revenue Code, 2006 and Rules 144, 145 and 146 of the U.P. Revenue Code Rules, 2016, Article 21 of the Constitution of India, the law laid down by Hon'ble Supreme Court in Ram Narayan Vs. State of U.P. and others AIR 1984 SC 1212, the Division Bench judgment of this Court in Om Prakash Vs. State of U.P. 2003 (5) AWC 4012 with regard to arrest of defaulter and Division Bench judgment in Ram Narain Himmat Ram Vs. Jalaun KVS Samiti Limited 1986 AWC 273 (DB) and Beedha Singh Vs. District Registrar Cooperative Societies 1986 ALJ 616 (DB) relating to the provisions of Section 95-A of U.P. Cooperative Societies Act, 1965.

¶132

7. Learned counsel for the petitioners submits that the respondents may manipulate the record and, therefore, copies of all the relevant papers available with the respondents and copies of all the proceedings undertaken by the respondent nos.2, 3 and 4 subsequent to the death of the original borrower on 16.4.2008, may be directed to be brought on record by means of personal affidavits of the respondent nos. 2,3 and 4.

¶133

8. Prima facie, I find that the respondents have not only acted arbitrarily but also deliberately violated fundamental rights of the petitioners under Article 21 of the Constitution of India which is a serious matter and, if it is found to be true, it may attract imposition of exemplary cost upon the respondents and suitable action against them.

¶134

9. In view of the aforesaid, the respondent nos. 2, 3 and 4 are directed to file a counter affidavit annexing therewith copies of all papers of proceedings undertaken by them against the petitioners subsequent to the death of the borrower - Rameshwar, who is stated to have died on 16.4.2008. The respondent no.4 shall also indicate in his counter affidavit, the relevant provisions under which he was authorised to issue recovery certificate dated 18.6.2013 under Section 95-A of the U.P. Cooperative Societies Act, 1965. Aforesaid affidavits shall be filed by the respondent nos. 2, 3 and 4 within two days. The affidavit on behalf of the respondent no.2, may be filed by the Competent Officer authorised by him in writing. In the event affidavits are not filed on or before the next date fixed, the respondent nos. 2, 3 and 4 shall remain personally present before this Court. 10. Put up before this Court on 24.4.2019, for further hearing.”

¶135

Thus, the Section 95A of the Act, 1965 is a special provision for recovery of certain dues of agricultural society. To invoke this

¶136

¶137

provision, the Society referred to in Section 34 or an agricultural credit society has to submit an application and furnish a statement of account in respect of such loan before the Registrar for recovery of loan advanced by it to any member or any instalment thereof. On receipt of the application and the statement of account, the Registrar shall inform the debtor concerned about the claim of the Society so that the debtor may approach and satisfy him that either he is not a member of the Society, or that the amount sought to be recovered is not in fact a loan advanced by the Society to him or that the amount of loan has either been wholly or partly paid up. After the debtor has shown the cause that a discretion arises with the Registrar depending upon the circumstances of the case, to hold such inquiry in the matter as he thinks fit and proper to issue certificate for recovery of the amounts due.

¶138

Since nothing has been brought on record by the respondent No.4 Bank that the recovery certificate dated 18.06.2013 was issued after complying with the mandatory provisions of Section 95A of the Act, 1965, therefore, I find that the recovery certificate dated 18.06.2013 was issued by the respondent No.4 against the petitioners without following the provisions of Section 95A and the law laid down by the Division Benches of this court in Ram Narayan Himmat Ram (supra) and Beedha Singh . The respondents could not bring on record any document or proceeding to justify arrest of the petitioner No.1 under any law including the provisions of the Act, 1965, the Act, 1973 or the Code, 2006.

¶139

¶140

Recovery of dues by bank under Section 11A of the U.P. Agricultural Credit Act, 1973:-

¶141

To consider the submissions of learned counsel for the respondent No.4- Bank reference to the provisions of Sections 11, 11A and 12B of the Act, 1973, it would be appropriate to reproduce the aforesaid provisions as under:

¶142

“ U.P. Agricultural Credit Act, 1973

¶143

11. Recovery of dues of a bank through a prescribed authority . - [(1) Notwithstanding anything contained in any law for the time being in force, an officer specified by the State Government by notification in the Gazette (hereinafter referred to as the prescribed authority) may, on the application of a bank by order, direct that any amount due to the bank on account of financial assistance given to an agriculturist be paid by the sale of the land or any interest therein or other immovable property which is charged or mortgaged for the payment of such amount :

¶144

Provided that no order of sale shall be made under this sub- section unless the agriculturist has been served with a notice by the prescribed authority calling upon him to pay the amount due.

¶145

(1-A) The provisions of the Limitation Act, 1963 shall apply in relation to an application under sub-section (1), as if such application were a suit in civil court for sale of the land or interest therein or other immovable property for enforcing recovery of the sum referred to in that sub-section. (2) An order passed by the prescribed authority shall, subject to the result of appeal under Section 12 , be final and be binding on the parties.

¶146

(3) Every order passed by the prescribed authority in terms of sub-section (1) or by the appellate authority under Section 12 shall be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court by the civil court having jurisdiction.

¶147

[(4)] No suit for the recovery of any sum due to a bank on account of financial assistance given to an agriculturist shall lie in the civil court.

¶148

11-A. Recovery in the case of personal security. - (1) Where any amount of financial assistance is granted by a bank to an agriculturist and the agriculturist fails to pay the amount together with interest on the due date, then without prejudice to the provisions of Sections 10-B and 11, the local principal officer of the bank, by whatever name called may forward to the Collector a certificate in the manner prescribed, specifying the amount due from the agriculturist.

¶149

(2) The certificate referred to in sub-section (1) may be forwarded to the Collector within three years from the date when the amount specified in the certificate fell due.

¶150

(3) On receipt of the certificate, the Collector shall proceed to recover from the agriculturist the amount specified therein together with expenses of recovery, as arrears of land revenue, and the amount due to the bank shall be paid after deducting the expenses of recovery and satisfying any Government dues or other prior charges, if any.

¶151

Explanation. - For the purposes of this section, the expression "Collector" means the Collector of the district in which the agriculturist ordinarily

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¶153

resides or carries on the activities referred to in clause (a) of Section 2 or where any movable or immovable property of the agriculturist is situate, and includes any officer, authorised by him in that behalf].

¶154

12-B. Recovery of dues from legal representatives. - (1) Where an agriculturist dies before the dues in respect of any financial assistance granted to him have been fully satisfied , the bank or the Tahsildar referred to in Section 10B or the prescribed authority referred to in Section 11 or the Collector referred to in Section 11A may proceed against the legal representatives of the agriculturist for the recovery of the dues.

¶155

(2) Where the proceedings are taken for the recovery against such legal representatives , they shall be liable only to the extent of the property of the deceased which has come to their hands and has not been duly disposed of and for the purpose of ascertaining such liability, the Tahsildar or the prescribed authority or the Collector, as the case may be, may suo motu or on application of the bank compel such legal representatives to produce such account as he or it thinks fit.”

¶156

The respondent No.4 - Bank has heavily relied upon the provisions of Sections 11, 11A and 12B of the Act, 1973 to contend that financial assistance granted by the respondent-bank to the deceased-borrower/ agriculturist could have been recovered by forwarding a recovery certificate to the Collector. Subsection (2) of Section 11A itself provides for forwarding a recovery certificate to the Collector within three years from the date when the amount specified in the certificate fell due. Nothing has been stated by the respondent No.4-Bank as to whether the recovery certificate was forwarded within three years when the amount fell due.

¶157

The Act, 1973 provides for recovery of financial assistance given to an agriculturist.

¶158

Section 11 prescribes procedure for recovery of dues of a bank through a prescribed authority, by sale of the land or any interest therein or other immovable property which is charged or mortgaged for the payment of financial assistance given to an agriculturist. For this purpose the Bank has to move an application before the prescribed authority within the period of limitation prescribed under the Limitation Act for a suit in a civil

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court for sale of the land or interest therein or other immovable property for recovery of the sum under sub-section (1). On application of the Bank the prescribed authority may pass an order after affording opportunity of hearing to the borrower. Such order is final subject to appeal under Section 12. As per subsection (3) of Section 11, every order passed by the Prescribed Authority in terms of sub-section (1) or by the appellate authority under Section 12 shall be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court by the civil court having jurisdiction. Section 11 has not been invoked by the respondent Bank.

¶161

In State of Punjab vs. S. Dharam Singh, (1985) 4 SCC 465 (para-6) , Hon'ble Supreme court held that the Government has first to proceed against the mortgaged property. Only in case the entire amount could not be realised that the Government could proceed against the borrower personally. The government is bound by the agreement as the borrower and, therefore, the government has first to proceed against the mortgaged property.

¶162

In S. Nazeer Ahmed vs. State Bank of Mysore and Ors. (2007) 11 SCC 75 (Para-10), Hon'ble Supreme Court held that enforcement of mortgaged security by lender, the proper mode is to file a suit for mortgaged property.

¶163

Section 11A of the Act, 1973 provides that without prejudice to the provisions of of Sections 10-B and 11, bank may recover financial assistance and interest on failure of the agriculturist to pay it on the due date. For this purpose the local principal officer of the Bank may forward to the Collector a recovery certificate in the prescribed manner within three years from the date when the amount specified in the certificate fell due. On receipt of

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¶165

the certificate the Collector may proceed to recover the amount together with expenses of recovery, as arrears of land revenue. As per averments made by the respondent-bank in paras 2, 3 and 5 of the supplementary counter affidavit dated 24.04.2019, the borrower agriculturist Rameshwar took loan of Rs.1,50,000/from the Bank on 12.09.2000 for purchase of tractor, repayable in sixth monthly instalments of nine years but he had not repaid a single penny till his death on 16.04.2008. No averment has been made by the respondent Bank in the counter affidavit for forwarding recovery certificate after three years from the date when the instalment of amount fell due.

¶166

In paragraphs 12 and 13 of the supplementary counter affidavit dated 24.04.2019, the respondent-bank has justified the issuance of the recovery certificate dated 31.03.2012 and 18.06.2013 against the petitioners being legal representative of the defaulter under Section 12B of the Act, 1973. Perusal of the provisions of the Act, 1973 leaves no manner of doubt that only lawfully due and recoverable amount can be recovered from the defaulter in the manner prescribed and in case of his death, from his legal representatives under Section 12B of the Act to the extent of the property of the deceased which has come to their hands and has not been duly disposed of. Thus, the financial assistance granted by Bank to a deceased defaulter can be recovered from his legal representative only if it was legally recoverable from the deceased and only to the extent of the property of the deceased which has come to the hands of the legal representatives and has not been duly disposed of. For ascertaining such liability, the Tehsildar or the prescribed authority or the Collector, as the case may be, sue motu or on application of the bank compel such legal representative to produce such account as he or it thinks fit.

¶167

¶168

Admitted facts of the case show that the mandatory procedure under Section 12B of the Act, 1973 was not followed by the respondent and the petitioner No.1 was illegally arrested and sent to jail.

¶169

Recovery from defaulter and legal representatives of the deceased defaulter and his arrest and detention under the U.P. Revenue Code, 2006

¶170

Relevant provisions under the U.P. Revenue Code, 2006, dealing with the arrest and detention, are Sections 171 and 181 of the Code and Rules 144, 145 and 146 of the Rules, which are reproduced below:

¶171

“ U.P. Revenue Code, 2006

¶172

171.Arrest and detention. - (1) Any person committing default in payment of an arrear of land revenue may be arrested and detained in custody in the Tahsil lock-up and if there is no such lock-up, at such other place as may be prescribed, for a period not exceeding fifteen days, unless the arrears are sooner paid.

¶173

(2) Notwithstanding anything contained in sub-section (1), no person shall be liable to arrest or detention for an arrear of land revenue, where and for so long as such person -

¶174

(a) is a woman or a minor, or a senior citizen of 65 years or more, or a person as referred to in Section 95(1)(a);

¶175

(b) belongs to the Armed Forces of the Union;

¶176

(c) is exempt under Sections 133, 135 or 135-A of the Code of Civil Procedure, 1908.

¶177

(3) No person shall be detained in custody under this section, unless the officer issuing the arrest warrant has reason to believe that the process of detention will compel the payment of the whole or a substantial portion of the arrears.

¶178

(4) The officer issuing the arrest warrant may withdraw such warrant if the defaulter pays or undertakes to pay the whole or substantial portion of the arrears and furnishes adequate security therefor.

¶179

181. Recovery proceedings against legal representatives etc. - (1) If at any time before or after the commencement of any proceedings for the recovery of any arrears of land revenue under this Chapter, the defaulter dies, the proceedings (except arrest and detention) may be commenced or continued against the legal representatives of the defaulter as if the legal representatives were themselves the defaulter :

¶180

Provided that such legal representative shall be liable only to the extent of the property of the deceased which has come to his or her hands .

¶181

(2) Where any person has become surety for the amount due from the defaulter he may be proceeded against under this Chapter as if be were

¶182

¶183

himself the defaulter.

¶184

U.P. Revenue Code Rules, 2016

¶185

R. 144 . Arrest of the defaulter (Section 171). - (1) The warrant of arrest of a defaulter may be issued by any Revenue Officer not below the rank of an Assistant Collector in R.C. Form-37 and it may be executed by the officer or official authorised by the Revenue Officer issuing the warrant of arrest and the name of the officer or official authorised to execute the arrest of warrant should be mentioned in such warrant.

¶186

(2) Soon after the arrest, the defaulter shall be produced before the officer issuing the warrant. If the defaulter pays or undertakes to pay the whole or a substantial portion of the arrears and furnishes adequate security therefor, the warrant of arrest may be cancelled. No order for the detention of the defaulter shall be passed unless the officer issuing the warrant has reasons to believe that such detention shall compel the payment of whole or substantial portion of the arrears. The period of detention (not exceeding 15 days) shall also be specified in the detention order.

¶187

R. 145. Detention of the defaulter (Section 171). - The defaulter may be detained in the Tahsil lock-up, but if there is no such lock-up, he may be sent in custody to the Civil Prison of the district with a warrant to the Jailor specifying therein the date of commitment, the period of detention and the amount (including the cost of detention) on payment of which he shall be released.”

¶188

Arrest and detention of defaulter for recovery as arrears of land revenue is governed by the provisions of Section 171 of the Code and Rules 144, 145 and 146 of the U.P. Revenue Code Rules, 2006.

¶189

Any person committing default in payment of an arrear of land revenue may be arrested and detained under Section 171 of the Code in Tehsil lock-up and if there is no such lock-up, at such other place as may be prescribed, for a period not exceeding fifteen days, unless the arrears are sooner paid. But if the defaulter liable for arrest or detention is (a) a woman or a minor or a senior citizen of 65 years or more, or a period referred to in Section 95(1)(a); (b) belongs to the Armed Forces of the Union; or (c) is exempted under Sections 133, 135 or 135A of the Code of Civil Procedure, 1908, he shall not be arrested or detained . After the warrant of arrest of a defaulter is issued by an officer not below the rank of Assistant Collector, the defaulter

¶190

¶191

may be arrested by the officer or official named in the arrest warrant authorised to and execute the arrest warrant. Soon after the arrest, the defaulter shall be produced before the officer issuing the warrant. If he pays or undertakes to pay the whole or a substantial portion of the arrears and furnishes adequate security therefor, the arrest warrant may be cancelled. If he does not do so, then he may be detained provided the officer issuing the arrest warrant has reason to believe that the process of detention will compel the payment of the whole or substantial portion of the arrears. Thus, under Section 171 (3) of the Code, 2006 read with Rule 144 of Rules, the officer concerned is required to decide on the basis of the material before him and any evidence tendered or submission made by the defaulter, whether there is any justification for detaining the defaulter. It is only when the officer records his satisfaction that the detention of the defaulter will compel him to make the payment of the whole or a substantial part of the arrears, he can order his detention .

¶192

While dealing with the similar provisions of the U.P.Z.A. & L.R. Act and Rules, similar view has been taken by Hon'ble Supreme Court in Ram Narayan Agrawal and others Vs. State of U.P. and others, (1983) 4 SCC 276 (Paras 11 and 17).

¶193

In Om Prakash Gupta vs. State of U.P. and others, (2003) 5 AWC 4012 (Paras 10 and 13), a Division Bench of this court held that keeping in mind the fundamental right of personal liberty guaranteed under Article 21 of the Constitution of India, harsh method of arrest and detention of the defaulter to coerce the defaulter to make payment should not be resorted unless the officer records his satisfaction that the defaulter inspite of having

¶194

¶195

sufficient means, has wilfully and with mala fide intention refused to pay.

¶196

Section 181 of the Code 2006 provides for recovery from legal representative of the deceased defaulter to a limited extent . It mandates that recovery of any arrears of land revenue against the legal representative of a deceased defaulter, may be commenced or continued and recovery may be made to the extent of the property of the deceased which has come to his or her hands but he cannot be arrested or detained . Despite this clear legal position, the petitioner No.1 being legal representative of the deceased defaulter was arrested and detained in jail for 14 days. Thus the arrest and detention of the petitioner by the respondents pursuant to the recovery certificate dated 18.06.2013 was wholly arbitrary, illegal and violative of Article 21 of the Constitution of India.

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Question No.(b):- Whether arrest of the petitioner No.1 by the respondents was arbitrary, illegal and violative of Article 21 of the Constitution of India? If the answer is in affirmative, then what consequences shall follow?

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In view of the conclusions reached by me as above on question No.(a), the arrest and detention of the petitioner No.1 by the respondents was wholly arbitrary, illegal and violative of Article 21 of the Constitution of India.

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In Jolly George Varghese and Anr. vs. The Bank of Cochin, (1980 ) 2 SCC 360, Hon'ble Supreme Court held that unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means, arrest of the defaulter would be violative of Article 21 of the Constitution of India . In the present set of facts, the arrest of the petitioner No.1 was not permissible either under the Act, 1965 or the Act, 1973 or the

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Code, 2006, since the petitioners are the legal representatives of the deceased borrower. Thus, from the principles laid down by Hon'ble Supreme Court in the case of Jolly George Varghese (supra), it cannot be safely inferred that when the relevant provisions itself bar arrest of a legal representatives of the deceased-borrower, then arrest of the petitioner No.1 (legal representatives of the deceased-borrower) and his detention for 14 days in jail, is clearly violative of his fundamental rights guaranteed under Article 21 of the Constitution of India.

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Recently, a Constitution Bench of Hon'ble Supreme Court in K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (2019 )1 SCC 1 (Paras -123, 127, 135, 136, 137, 145, 145.1, 145.2, 145.3, 145.4, 145.5, 147, and 508.18 to 508.23), explained the principles of human dignity and held as under:

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“ Principles of Human Dignity:

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123. In Common Cause v. Union of India32, the concept of human dignity has been explained in much detail 33. The concept of human dignity developed in the said judgment was general in nature which is based on right to autonomy and right of choice and it has become a constitutional value. In the last 40 years or so, this Court has given many landmark judgments wherein concept of human dignity is recognised as an attribute of fundamental rights. In the earlier years, though the meaning and scope of human dignity by itself was not expanded, this exercise has been undertaken in last few years. Earlier judgments have mentioned that human dignity is the intrinsic value of every human being and, in the process, a person’s autonomy as an attribute of dignity stands recognised. The judgments rendered in the last few years have attempted to provide jurisprudential basis to the concept of human dignity itself.

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127. Next judgment in this line of cases would be that of Jeeja Ghosh & Another v. Union of India & Ors. (2016) 7 SCC 761 wherein the Court, while expanding the jurisprudential basis, outlined three models of dignity which have been discussed by us above. These were referred to while explaining the normative role of human dignity, alongside, in the following manner:

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“37. The rights that are guaranteed to differently-abled persons under the 1995 Act, are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were

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called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical. Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption “Fundamental Rights”. One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfilment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal . What are the dimensions of constitutional value of human dignity? It is beautifully illustrated by Aharon Barak (former Chief Justice of the Supreme Court of Israel) in the following manner: “The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the Constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.”

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38. All the three goals of human dignity as a constitutional value are expanded by the author in a scholarly manner. Some of the excerpts thereof, are reproduced below which give a glimpse of these goals:

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“The first role of human dignity as a constitutional value is expressed in the approach that it comprises the foundation for all of the constitutional rights. Human dignity is the central argument for the existence of human rights. It is the rationale for them all. It is the justification for the existence of rights. According to Christoph Enders, it is the constitutional value that determines that every person has the right to have rights… The second role of human dignity as a constitutional value is to provide meaning to the norms of the legal system. According to purposive interpretation, all of the provisions of the Constitution, and particularly all of the rights in the constitutional bill of rights, are interpreted in light of human dignity… Lastly, human dignity as a constitutional value influences the development of the common law. Indeed, where common law is recognised, Judges have the duty to develop it, and if necessary, modify it, so that it expresses constitutional values, including the constitutional value of human dignity. To the extent that common law determines rights and duties between individuals, it might limit the human dignity of one individual and protect the human dignity of the other.”

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135. As per Dworkin, there are two principles about the concept of human dignity. First principle regards an ‘intrinsic value’ of every person, namely, every person has a special objective value, which value is not only important to that person alone but success or failure of the lives of every

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person is important to all of us. It can also be described as self respect which represents the free will of the person, her capacity to think for herself and to control her own life. The second principle is that of ‘personal responsibility’ , which means every person has the responsibility for success in her own life and, therefore, she must use her discretion regarding the way of life that will be successful from her point of view.

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136.Sum total of this exposition is well defined by Professor Baxi by explaining that as per the aforesaid view, dignity is to be treated as ‘empowerment’ which makes a triple demand in the name of ‘respect’ for human dignity, namely:

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(i) respect for one's capacity as an agent to make one's own free choices; (ii) respect for the choices so made; and

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(iii) respect for one's need to have a context and conditions in which one can operate as a source of free and informed choice..

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137. In this entire formulation, ‘respect’ for an individual is the fulcrum, which is based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’.

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145. When we read socio-economic rights into human dignity, the community approach also assumes importance along with individualistic approach to human dignity. It has now been well recognised that at its core, human dignity contains three elements, namely, intrinsic value, autonomy and community value. These are known as core values of human dignity. These three elements can assist in structuring legal reasoning and justifying judicial choices in ‘hard cases’. It has to be borne in mind that human dignity is a constitutional principle, rather than free standing fundamental rights. Insofar as intrinsic value is concerned, here human dignity is linked to the nature of being. We may give brief description of these three contents of the idea of human dignity as below: (I) Intrinsic Value:

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145.1 The uniqueness of human kind is the product of a combination of inherent traits and features – including intelligence, sensibility, and the ability to communicate – that give humans a special status in the world, distinct from other species.48 The intrinsic value of all individuals results in two 48 See George Kateb, Human Dignity 5 (2011) (“[W]e can distinguish between the dignity of every basic postulates: anti-utilitarian and antiauthoritarian. The former consists of the formulation of Kant’s categorical imperative that every individual is an end in him or herself, not a means for collective goals or the purposes of others. The latter is synthesized in the idea that the State exists for the individual, not the other way around. As for its legal implications, intrinsic value is the origin of a set of fundamental rights. The first of these rights is the right to life, a basic precondition for the enjoyment of any other right. A second right directly related to the intrinsic value of each and every individual is equality before and under the law. All individuals are of equal value and, therefore, deserve equal respect and concern. This means not being discriminated against due to race, colour, ethnic or national origin, sex, age or mental capacity (the right to non-discrimination), as well as respect for cultural, religious, or linguistic diversity (the right to recognition). Human dignity fulfills only part of the content of the idea of equality, and in many situations it may be acceptable to differentiate among people. In the contemporary world, this is

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particularly at issue in cases involving affirmative action and the rights of religious minorities. Intrinsic value also leads to the right to integrity , both physical and mental. The right to physical human individual and the dignity of the human species as a whole.”). Integrity includes the prohibition of torture, slave labour, and degrading treatment or punishment. Discussions on life imprisonment, interrogation techniques, and prison conditions take place within the scope of this right. The right to mental integrity comprises the right to personal honour and image and includes the right to privacy.

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(II) Autonomy:

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145.2 Autonomy is the ethical element of human dignity. It is the foundation of the free will of individuals, which entitles them to pursue the ideals of living well and having a good life in their own ways. The central notion is that of self-determination: An autonomous person establishes the rules that will govern his or her life. Kantian conception of autonomy is the will governed by the moral law (moral autonomy). Here, we are concerned with personal autonomy, which is value neutral and means the free exercise of the will according to one’s own values, interests, and desires. Autonomy requires the fulfillment of certain conditions, such as reason (the mental capacity to make informed decisions), independence (the absence of coercion, manipulation and severe want), and choice (the actual existence of alternatives). Autonomy, thus, is the ability to make personal decisions and choices in life based on one’s conception of the good, without undue external influences. As for its legal implications, autonomy underlies a set of fundamental rights associated with democratic constitutionalism, including basic freedoms (private autonomy) and the right of political participation (public autonomy).

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145.3 It would be pertinent to emphasise here that with the rise of the welfare state, many countries in the world (and that includes India) also consider a fundamental right to minimum living conditions (the existential minimum) in the balancing that results into effective autonomy. Thus, there are three facets of autonomy, namely: private autonomy, public autonomy and the existential minimum. Insofar as the last component is concerned, it is also referred to as social minimum or the basic right to the provision of adequate living conditions has its roots in right to equality as well. In fact, equality, in a substantive sense, and especially autonomy (both private and public), are dependent on the fact that individuals are “free from want,” meaning that their essential needs are satisfied. To be free, equal, and capable of exercising responsible citizenship, individuals must pass minimum thresholds of well-being, without which autonomy is a mere fiction. This requires access to some essential utilities, such as basic education and health care services, as well as some elementary necessities, such as food, water, clothing, and shelter. The existential minimum, therefore, is the core content of social and economic rights. This concept of minimum social right is protected by the Court, time and again.

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(III) Community Value:

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145.4. This element of human dignity as community value relates to the social dimension of dignity. The contours of human dignity are shaped by the relationship of the individual with others, as well as with the world around him. English poet John Donne expresses the same sentiments when he says ‘no man is an island, entire of itself’ 49. The individual, thus, lives within himself, within a community, and within a state. His personal autonomy is constrained by the values, rights, and morals of people who are

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just as free and equal as him, as well as by coercive regulation. Robert Post identified three distinct forms of social order: community (a “shared world of common faith and fate”), management (the instrumental organization of social life through law to achieve specific objectives), and democracy (an arrangement that embodies the purpose of individual and collective selfdetermination. These three forms of social order presuppose and depend on each other, but are also in constant tension.

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145.5. Dignity as a community value, therefore, emphasises the role of the state and community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain idea of the good life. The relevant question here is in what circumstances and to what degree should these actions be regarded as legitimate in a constitutional democracy? The liberal predicament that the state must be neutral with regard to different conceptions of the good in a plural society is not incompatible, of course, with limitation resulting from the necessary coexistence of different views and potentially conflicting rights. Such interferences, however, must be justified on grounds of a legitimate idea of justice, an “overlapping consensus” 50 that can be shared by most individuals and groups. Whenever such tension arises, the task of balancing is to be achieved by the Courts.

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Doctrine of Proportionality

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147. As noted above, whenever challenge is laid to an action of the State on the ground that it violates the right to privacy, the action of the State is to be tested on the following parameters::

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(a) the action must be sanctioned by law;

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(b) the proposed action must be necessary in a democratic

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society for a legitimate aim; and

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(c) the extent of such interference must be proportionate to the

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need for such interference.

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508.18. As per Dworkin, there are two principles about the concept of human dignity, First principle regards an ‘intrinsic value’ of every person , namely, every person has a special objective value which value is not only important to that person alone but success or failure of the lives of every person is important to all of us. It can also be described as self respect which represents the free will of the person, her capacity to think for herself and to control her own life . The second principle is that of ‘personal responsibility’, which means every person has the responsibility for success in her own life and, therefore, she must use her discretion regarding the way of life that will be successful from her point of view. 508.19. Sum total of this exposition can be defined by explaining that as per the aforesaid view dignity is to be treated as ‘empowerment’ which makes a triple demand in the name of ‘respect’ for human dignity, namely: 508.19.1. Respect for one's capacity as an agent to make one's own free choices;

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508.19.2. Respect for the choices so made; and

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508.19.3. Respect for one's need to have a context and conditions in which one can operate as a source of free and informed choice.

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508.20. In the entire formulation of dignity right, ‘respect’ for an individual is the fulcrum, which is based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’. The aforesaid discourse on the concept of human dignity is from an individual point of view. That is the emphasis of the petitioners as well. That would be one side of the coin. A very important feature which the present case has brought into focus is another dimension of human dignity, namely, in the form of ‘common good’ or ‘public good’. Thus, our endeavour here is to give richer and more nuanced understanding to the concept of human dignity.

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508.21. We, therefore, have to keep in mind humanistic concept of Human Dignity which is to be accorded to a particular segment of the society and, in fact, a large segment. Their human dignity is based on the socioeconomic rights that are read in to the Fundamental Rights as already discussed above. When we read socio-economic rights into human dignity, the community approach also assumes importance along with individualistic approach to human dignity. It has now been well recognised that at its core, human dignity contains three elements, namely, Intrinsic Value, Autonomy and Community Value. These are known as core values of human dignity. These three elements can assist in structuring legal reasoning and justifying judicial choices in ‘hard cases’.

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508.22. When it comes to dignity as a community value, it emphasises the role of the community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain idea of good life. The relevant question here is in what circumstances and to what degree should these actions be regarded as legitimate in a constitutional democracy? The liberal predicament that the state must be neutral with regard to different conceptions of the good in a plural society is not incompatible, of course, with limitation resulting from the necessary coexistence of different views and potentially conflicting rights. Such interferences, however, must be justified on grounds of a legitimate idea of justice, an “overlapping consensus” that can be shared by most individuals and groups. Whenever such tension arises, the task of balancing is to be achieved by the Courts. 508.23. We would like to highlight one more significant feature which the issues involved in the present case bring about. It is the balancing of two facets of dignity of the same individual. Whereas, on the one hand, right of personal autonomy is a part of dignity (and right to privacy), another part of dignity of the same individual is to lead a dignified life as well (which is again a facet of Article 21 of the Constitution) . Therefore, in a scenario where the State is coming out with welfare schemes, which strive at giving dignified life in harmony with human dignity and in the process some aspect of autonomy is sacrificed, the balancing of the two becomes an important task which is to be achieved by the courts. For, there cannot be undue intrusion into the autonomy on the pretext of conferment of economic benefits.”

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(Emphasises supplied by me)

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The fundamental right guaranteed under Article 21 of the Constitution of India as authoritatively explained by Hon'ble Supreme Court in K.S. Puttaswamy's case (supra) and in

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recovery matter in Jolly George Varghese and another (supra), squarely apply to the facts of the present case, establishing a clear breach of Article 21 of the Constitution of India by the respondents. Under the circumstances, this court cannot close its eyes and fold its hands or remain a silent spectator and thus, allow people of weaker section of the society, particularly farmer's class to suffer who usually do not have resources and financial capacity to fight against the high-handedness of mighty officers of the State Government. Technicalities cannot obstruct the path of justice. A farmer's life is a tale of continuous experimentation and struggle for existence. Unless one experiences their struggle, that headache he will never know how it feels. The risks faced by the farming community are many; they relate to natural calamities such as drought and floods; high fluctuation in the prices of input as well as output, over which he has no control whatsoever; a credit system which never extends a helping hand to the neediest ; domination by middlemen who enjoy the fruits of a farmer's hard work; spurious inputs, and the recent phenomenon of labour shortages, which can be conveniently added to his tale of woes. Of late, there have been many cases of desperate farmers ending their lives in different parts of the country. The Principles of Economics provides for the producer of a commodity to determine his prices but an Indian farmer perhaps is the only exception to this principle of economics, for even getting a decent price for their produce is difficult for them. Economic growth through the 1990's had made India a more market- oriented economy, but had failed to benefit all Indians equally. The problems that plagued the farmers several decades ago are still glaringly present today. Income through farming is not enough to meet even the minimum needs of a farming family.

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Arrest and detention of the petitioner being legal representative of the deceased borrower farmer without authority of law, is a clear case of breach of his fundamental rights guaranteed under Article 21 of the Constitution of India.

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So far as the question of consequence on account of conduct of the respondents and claim of damages of Rs.20 lacs by the petitioners is concerned, I direct that within three weeks, the Chief Secretary, State of U.P. Lucknow or a competent officer authorised by him, not below the level of the Secretary, shall call for a report in the matter of recovery and arrest of the petitioner No.1, from the District Magistrate, Hamirpur and from the Registrar Cooperative Societies, who shall submit their report to the Chief Secretary, U.P. within next two weeks. Thereafter, the Chief Secretary, U.P. or the officer authorised by him as aforesaid shall determine the amount of compensation payable to the petitioners within next three weeks, after affording reasonable opportunity of hearing to the petitioners, the respondent No.4Bank and the respondent Nos.2 and 3. Fifty percent of the amount so determined for payment to the petitioners, shall be paid by the respondent No.4- Bank and the remaining 50% shall be paid by the State Government within next six weeks.

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The Chief Secretary, U.P. shall issue necessary instructions to all the District Magistrates in Uttar Pradesh within four weeks, with regard to arrest and detention of defaulters in terms of the provisions of the U.P. Revenue Code, 2006, U.P. Agricultural Credit Act, 1973 and the U.P. Cooperative Societies Act, 1965 so as to remind the authorities in the State of U.P. of their duties to be performed and procedure to be followed while arresting and detaining a defaulter.

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Question No.(c):- Whether under the facts and circumstances of the case, recovery charges @ 10% may be recovered from from the petitioners?

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In view of the law settled by the full bench of this court in the case of Maharajwa and others (supra) and also in view of the fact that the respondents have arbitrarily, illegally and in breach of Article 21 of the Constitution of India, arrested the petitioner No.1, the Chief Secretary, U.P. or the officer authorised by him as aforesaid, while deciding the matter of the petitioners for damages/ compensation; shall also take a decision on the question of recovery charges.

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Question No.(d):- Whether the petitioners may apply to the respondent No.4 for one time settlement to buy peace and to avoid further harassment?

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The respondent No.4- Bank itself has mentioned in its second supplementary counter affidavit dated 25.04.2019 that a fresh OTS Scheme has already been proposed by the U.P. Sahakari Gram Vikas Bank to the State Government and there is every possibility that approval/ permission would be granted by the State Government shortly and in that eventuality the respondent No.4 would grant all possible benefits to the petitioners within the para-meters of the OTS Scheme approved by the Government. In the light of the stand taken by the respondent No.4- Bank, it is provided that as and when the OTS Scheme is announced, the respondent No.4 would grant all possible benefits to the petitioners within the para-meters of the OTS Scheme, provided the recovery is not barred by time under the Act, 1973 . CONCLUSION :-

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In view of the above discussion and findings, my conclusions are briefly as under:-

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(i) Since nothing has been brought on record by the

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respondent No.4 Bank that the recovery certificate dated 18.06.2013 was issued after complying with the mandatory provisions of Section 95A of the Act, 1965, therefore, I find that the recovery certificate dated 18.06.2013 was illegally issued by the respondent No.4 against the petitioners without following the provisions of Section 95A and the law laid down by the Division Benches of this court in Ram Narayan Himmat Ram (supra) and Beedha Singh (supra). The respondents could not bring on record any document or proceeding to justify arrest of the petitioner No.1 under any law including the provisions of the Act, 1965, the Act, 1973 or the Code, 2006.

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(ii) The Act, 1973 provides for recovery of financial assistance given to an agriculturist. Section 11 prescribes procedure for recovery of dues of a bank through a prescribed authority, by sale of the land or any interest therein or other immovable property which is charged or mortgaged for the payment of financial assistance given to an agriculturist. For this purpose the Bank has to move an application before the prescribed authority within the period of limitation prescribed under the Limitation Act for a suit in a civil court for sale of the land or interest therein or other immovable property for recovery of the sum under sub-section (1). On application of the Bank the prescribed authority may pass an order after affording opportunity of hearing to the borrower. Such order is final subject to appeal under Section 12. As per sub-section (3) of Section 11, every order passed by the Prescribed Authority in terms of sub-section (1) or by the appellate authority under Section 12 shall be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court by the civil court having jurisdiction. Section 11 has not been invoked by the respondent Bank.

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(iii) Section 11A of the Act, 1973 provides that without prejudice to the provisions of of Sections 10-B and 11, bank may recover financial assistance and interest on failure of the agriculturist to pay it on the due date. For this purpose the

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local principal officer of the Bank may forward to the Collector a recovery certificate in the prescribed manner within three years from the date when the amount specified in the certificate fell due. On receipt of the certificate the Collector may proceed to recover the amount together with expenses of recovery, as arrears of land revenue. As per averments made by the respondent-bank in paras 2, 3 and 5 of the supplementary counter affidavit dated 24.04.2019, the borrower agriculturist Rameshwar took loan of Rs.1,50,000/from the Bank on 12.09.2000 for purchase of tractor, repayable in sixth monthly instalments in nine years but he had not repaid a single penny till his death on 16.04.2008. No averment has been made by the respondent Bank in the counter affidavit for forwarding recovery certificate after three years from the date when the instalment of amount fell due. (iv) Perusal of Section 12B of the Act, 1973 leaves no manner of doubt that only lawfully due and recoverable amount can be recovered from the defaulter in the manner prescribed and in case of his death, from his legal representatives to the extent of the property of the deceased which has come to their hands and has not been duly disposed of. Thus, the financial assistance granted by Bank to a deceased defaulter can be recovered from his legal representative only if it was legally recoverable from the deceased and only to the extent of the property of the deceased which has come to the hands of the legal representatives and has not been duly disposed of. For ascertaining such liability, the Tehsildar or the prescribed authority or the Collector, as the case may be, sue motu or on application of the bank compel such legal representative to produce such account as he or it thinks fit. Admitted facts of the case show that the mandatory procedure under Section 12B of the Act, 1973 was not followed by the respondent and instead the petitioner No.1 was illegally arrested and sent to jail.

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(v) Any person committing default in payment of an arrear of land revenue may be arrested and detained under Section 171

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of the Code in Tehsil lock-up and if there is no such lock-up, at such other place as may be prescribed, for a period not exceeding fifteen days, unless the arrears are sooner paid. But if the defaulter liable for arrest or detention is (a) a woman or a minor or a senior citizen of 65 years or more, or a person referred to in Section 95(1)(a); or (b) belongs to the Armed Forces of the Union; or (c) is exempted under Sections 133, 135 or 135A of the Code of Civil Procedure, 1908, he shall not be arrested or detained. After the warrant of arrest of a defaulter is issued by an officer not below the rank of Assistant Collector, the defaulter may be arrested by the officer or official named in the arrest warrant authorised to and execute the arrest warrant. Soon after the arrest, the defaulter shall be produced before the officer issuing the warrant. If he pays or undertakes to pay the whole or a substantial portion of the arrears and furnishes adequate security therefor, the arrest warrant may be cancelled. If he does not do so, then he may be detained provided the officer issuing the arrest warrant has reason to believe that the process of detention will compel the payment of the whole or substantial portion of the arrears. Thus, under Section 171 (3) of the Code, 2006 read with Rule 144 of Rules, the officer concerned is required to decide on the basis of the material before him and any evidence tendered or submission made by the defaulter, whether there is any justification for detaining the defaulter. It is only when the officer records his satisfaction that the detention of the defaulter will compel him to make the payment of the whole or a substantial part of the arrears, he can order his detention. Unless there is proof of the minimal fairness of his wilful failure to pay inspite of his sufficient means, arrest of the defaulter would be violative of Article 21 of the Constitution of India.

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(vi) Section 181 of the Code 2006 provides for recovery from legal representative of the deceased defaulter to a limited extent . It mandates that recovery of any arrears of land revenue against the legal representative of a deceased

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defaulter, may be commenced or continued and recovery may be made to the extent of the property of the deceased which has come to his or her hands but he cannot be arrested or detained . Despite this clear legal position, the petitioner No.1 being legal representative of the deceased defaulter was arrested and detained in jail for 14 days. Thus the arrest and detention of the petitioner by the respondents pursuant to the recovery certificate dated 18.06.2013 was wholly arbitrary, illegal and violative of Article 21 of the Constitution of India.

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(vii) Fundamental right guaranteed under Article 21 of the Constitution of India as authoritatively explained by Hon'ble Supreme Court in K.S. Puttaswamy's case (supra) and in recovery matter in Jolly George Varghese and another (supra), squarely apply to the facts of the present case, establishing a clear breach of Article 21 of the Constitution of India by the respondents. Under the circumstances, this court cannot close its eyes and fold its hands or remain a silent spectator and thus, allow people of weaker section of the society, particularly farmer's class, to suffer who usually do not have resources and financial capacity to fight against the high-handedness of mighty officers of the State Government. Technicalities cannot obstruct the path of justice. A farmer's life is a tale of continuous experimentation and struggle for existence. The risks faced by the farming community are many; they relate to natural calamities such as drought and floods; high fluctuation in the prices of input as well as output, over which he has no control whatsoever; a credit system which never extends a helping hand to the neediest ; domination by middlemen who enjoy the fruits of a farmer's hard work; spurious inputs, and the recent phenomenon of labour shortages, which can be conveniently added to his tale of woes. Of late, there have been many cases of desperate farmers ending their lives in different parts of the country. Arrest and detention of the petitioner being legal representative of the deceased borrower farmer by the officers without authority of law, is a clear case

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of breach of his fundamental rights guaranteed under Article 21 of the Constitution of India.

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(viii) So far as the question of consequence on account of conduct of the respondents and claim of damages of Rs.20 lacs by the petitioners is concerned, I direct that within three weeks, the Chief Secretary, State of U.P. Lucknow or a competent officer authorised by him not below the rank of Secretary, shall call for a report in the matter of recovery and arrest of the petitioner No.1, from the District Magistrate, Hamirpur and from the Registrar Cooperative Societies, who shall submit their report to the Chief Secretary, U.P. within next two weeks. Thereafter, the Chief Secretary, U.P. or the officer authorised by him as aforesaid shall determine the amount of compensation payable to the petitioners within next three weeks, after affording reasonable opportunity of hearing to the petitioners, the respondent No.4- Bank and the respondent Nos.2 and 3. Fifty percent of the amount so determined for payment to the petitioners, shall be paid by the respondent No.4- Bank and the remaining 50% shall be paid by the State Government within next six weeks.

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(ix) The Chief Secretary, U.P. shall issue necessary instructions to all the District Magistrates in Uttar Pradesh within four weeks, with regard to arrest and detention of defaulters in terms of the provisions of the U.P. Revenue Code, 2006, U.P. Agricultural Credit Act, 1973 and the U.P. Cooperative Societies Act, 1965 so as to remind the authorities in the State of U.P. of their duties to be performed and procedure to be followed while arresting and detaining a defaulter.

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(x) In view of the law settled by the full bench of this court in the case of Maharajwa and others (supra) and also in view of the fact that the respondents have arbitrarily, illegally and in breach of Article 21 of the Constitution of India, arrested the petitioner No.1, the Chief Secretary, U.P. or the officer authorised by him as aforesaid, while deciding the matter of the petitioners for damages/ compensation; shall also take a

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decision on the question of recovery charges. (xi) In the light of the stand taken by the respondent No.4Bank, it is provided that as and when the OTS Scheme is announced, the respondent No.4 would grant all possible benefits to the petitioners within the para-meters of the OTS Scheme, provided the recovery is not barred by time under the Act, 1973 .

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In view of the above discussion, this writ petition is disposed of with the directions given above. Although it is a fit case to impose exemplary cost upon the respondents for their arbitrary and illegal action and for breach of fundamental rights of the petitioners guaranteed under Article 21 of the Constitution of India, yet I am not imposing cost in view of the directions issued to the Chief Secretary, U.P. for taking decision on the question of compensation to the petitioners.

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It is further directed that no action for recovery of the dues of the deceased-borrower Rameshwar from the petitioners, shall be taken by the respondents except in accordance with law and to the extent permissible under law.

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Let a copy of this order be sent by the Registrar General of this court to the Chief Secretary, Government of Uttar Pradesh for necessary action and compliance.

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Order Date :- 29.05.2019 NLY

Shiv Narayan and 4 Others v. State of U.P. and 3 Others

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Shiv Narayan and 4 Others v. State of U.P. and 3 Others

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