Allowed

Agency for Development of Acquacultuer v. Abdul Sathar & Another

Kerala HC6 Oct 2016WP(C)/5421/2009

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions filed by ADAK against Lok Ayukta orders. The Court held that Government orders waiving interest and reducing rates apply only to pending loans in default, not loans closed prior to those orders. Consequently, the Lok Ayukta's order directing loan rearangement for closed loans was set aside.

What did the court decide?

The Lok Ayukta orders (Ext.P5) in both complaint cases were set aside. The writ petitions were allowed.

Agency for Development of Acquacultuer Vs… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938

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WP(C).No. 5421 of 2009 (W)

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PETITIONER:

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AGENCY FOR DEVELOPMENT OF ACQUACULTUER KERALA (ADAK), THIRUVANANTHAPURAM, REP. BY, THE EXECUTIVE DIRECTOR.

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BY ADV. SRI.S.SUDHEESH KUMAR, SC, AGENCY FOR DEV

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RESPONDENT(S):

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1. ABDUL SATHAR, PROPRIETOR S.S.FARM, IRINAVU, KANNUR, NOW RESIDING AT S.S.NIVAS, POOTHAPARA P.O. AZHEEKODE SOUTH.

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2. KERALA LOK AYUKTA REP.BY ITS REGISTRAR, THIRUVANANTHAPURAM.

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R1 BY ADV. SRI.VARGHESE C.KURIAKOSE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, ALONG WITH WPC. 5424/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WPC NO 5421 OF 2009:

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APPENDIX

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PETITIONERS EXHIBITS:

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P1: COPY OF THE G.O.(MS) 39/04/F & PD DATED 28/10/2004.

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P2: COPY OF SAID G.O. (MS) 21/2005/F& PD DATED 15.6.2005.

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P3: COPY OF THE COMPT NO 1858/2007.

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P4: COPY OF THE COUNTER AFFIDAVIT DATED 26.4.2008.

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P5: COPY OF THE ORDER OF THE HON'BLE UPON LOK AYUKTA 8.1.2009 IN COMPT NO 1858/2007.

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RESPONDENTS EXHIBITS: NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

P.V.ASHA, J.

W.P(C) Nos.5421 and 5424 of 2009-W

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Dated this the 6^th day of October, 2016

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JUDGMENT

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Both writ petitions are filed by the petitioner the Agency for Development of Aquaculture Kerala (ADAK) challenging Ext.P5 order passed by the Lok Ayukta on a complaint filed by the 1^st respondent in the respective cases, by which the benefit of Exts.P1 and P2 orders was held applicable in the cases of loans which were closed as on the date of Exts.P1 and P2 orders also, availed by the 1^st respondent.

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The complainants before the Lok Ayukta who were the 1^st respondent in the respective cases filed Ext.P3 complaint before the Lok Ayukta seeking directions to the ADAK - the petitioner herein/respondent in that case, to rearrange the loan amount as per G.O.(Ms) No.21/2005 dated 15.06.2005 and G.O (Ms) No.39/2004/F&P dated 28.10.2004 and for a direction to them to furnish a statement of accounts in respect of the loan availed by the respective complainants.

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W.P(C) Nos.5421 and 5424 of 2009-W 2

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The petitioner herein filed Ext.P4 counter affidavit in both the cases. It was stated that the 1^st respondent in one case availed a loan in the year 1995 and the loan was closed on 09.09.2002. Loan availed by the 1^st respondent in the other case was closed in the year 2000.

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Pointing out that the complaint was barred by limitation in view of Section 8 (c) of the Lok Ayukta Act and as it was not maintainable, the petitioner requested the Lok Ayukta to consider the same as a preliminary issue. It was also the case of the petitioner that the complaint of the 1^st respondent could not be considered as a grievance as defined under Section 2(h) of the Lok Ayukta Act.

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The case of the petitioner is that a sum of Rs.4,31,396.65 was released to the 1^st respondent in W.P(c). No.5424/2009 for development of shrimp farm on the basis of an agreement executed by the 1^st respondent with the petitioner on 21.12.1995. When the 1^st respondent did not take steps for repayment in terms of the agreement, the petitioner took steps for recovery of the amount along with interest @ 15% per annum. In spite of the notices issued to all the partners including the 1^st respondent, no payment was made. Therefore,

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W.P(C) Nos.5421 and 5424 of 2009-W 3

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the petitioner took steps for recovery of the same under Revenue Recovery Act. In the meanwhile, the land in which shrimp farms were being developed was acquired by the Government. Thereupon, as per letter dated 9.11.1998, the petitioner requested the Special Tahsildar to release a sum of Rs.5,60,946.46 along with interest @ 15% per annum from out of the compensation due towards the owner of the land, in respect of the amount due from the 1^st respondent to the petitioner. Thereupon, the revenue recovery authorities issued a `D' form cheque to the petitioner for a sum of Rs.6,85,461/-, in order to clear the loan and accordingly the loan stood closed, as on 9.9.2002.

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In the case of the 1^st respondent in W.P(c).No.5421 of 2009, the loan remained closed by 26.07.2000. In that case the loan released was a sum of Rs.3,60,752.57 in January, 1995. In this case also, the petitioner got a sum of Rs.5,76,852/- by way of cheque from the revenue authorities on 10.07.2000, from out of the compensation due to the 1^st respondent under the Land Acquisition Act. Since the said amount was not sufficient to clear the loan, the 1^st respondent remitted the balance amount of Rs.3,552/- on 26.07.2000. Thus in both the cases, the loan

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W.P(C) Nos.5421 and 5424 of 2009-W 4

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remained closed much before the orders Exts.P1 and P2 were issued. In the counter statement of the petitioner filed before the Lok Ayukta, it was stated that the claim of the petitioner and similarly placed persons for refund of the excess amount collected by way of interest, was placed before the Government as per letter dt.18.12.2005, for availing the benefit of Ext.P1 and P2 orders and the reply was awaited. Therefore, it was stated that the 1^st respondent was not entitled to any relief sought for in the complaint. It was thereafter Ext.P5 order was passed by the Lok Ayukta in the complaint No.1626/07 on 08.01.2009. The Lok Ayukta, after considering the complaint and the counter affidavits of the petitioner, found that since the 1^st respondent had availed a loan for prawn culture and he could not proceed with the same because of the acquisition of the land by the Government, he was entitled to the benefit of the Government orders Exts.P1 and P2, even though the loan was closed in the year 2002 itself, since the loan amount was utilised for the development of the land as a shrimp farm. The contentions of the petitioner regarding the maintainability as well as limitation were rejected and the Lok Ayukta directed to rearrange the loan in terms of Exts.P1 and P2 and to refund the

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W.P(C) Nos.5421 and 5424 of 2009-W 5

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excess amount recovered from the 1^st respondent.

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The contention of the petitioner in this writ petition is that the benefit of the orders Exts.P1 and P2 could be extended only to those loans which were pending as on the date of those orders in 2004 and 2005 and not to the loans which were closed in 2000 and 2002.

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The 1^st respondent filed a counter affidavit stating that the loan availed for the purpose of prawn culture was under the Kerala Fisheries Development Project and the entire amount was utilised for development of the land having an extent of 5.62 acres for the purpose of prawn culture. But the prawn culture could not be proceeded with because the Government acquired the land for the purpose of Kerala State Industrial Development Corporation. According to the 1^st respondent in both the cases, the petitioner realised the loan amount due from them without their consent, directly from the revenue authorities from out of the compensation due to them. Towards acquisition of their land; therefore Exts.P1 and P2 orders are applicable to all the loans availed by shrimp farmers, especially when the loans were closed by way of involuntary payments.

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The learned counsel for the 1^st respondent relied on a

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W.P(C) Nos.5421 and 5424 of 2009-W 6

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judgment dated 26.06.2009 in W.P(c).No.18224 of 2008. In that case also, the petitioner had received payment from out of the compensation towards the land acquired from him, through the revenue authorities. This court declared that the complainant therein was entitled to the benefit of the orders Exts.P1 and P2. The learned counsel for the petitioner seriously opposes the same pointing out that the loan in that case was not closed when the order Ext.P2 was issued and therefore, the said judgment cannot apply in the facts and circumstances of this case.

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I heard the learned Counsel for the petitioner and the learned Counsel for the respondents.

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By Ext.P1 order issued on 28.10.2004, the Government ordered waiver of penal interest for the period upto 30.09.2004 and reduced rate of interest from 15% to 8% and allowed the farmers to make re-payment of the loan amount in 20 equal monthly instalments; on the basis of further representations of shrimp farmers, the Government issued Ext.P2 order on 15.06.2005, waiving interest and penal interest in full upto 30.9.2004 and fixed the rate of interest at 8%. Paragraph 2 of the order Ext.P2 makes it clear that the said order is applicable only to those shrimp farmers who are in

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W.P(C) Nos.5421 and 5424 of 2009-W 7

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arrears and those who are willing to comply with the conditions stipulated therein. Interest is waived for the period upto 30.9.2004 and the loan would be re-scheduled from 1.10.2004 on condition that in the event of any default in re-payment the benefit granted would be withdrawn. The order Ext.P1 was further modified reducing the interest to 8% from 1.10.2004 and extending the date for rescheduling of loan to 28.2.2005, without any change in any other conditions.

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On a perusal of the judgment in W.P(c).No.18224 of 2008, relied on by Sri. Varghese Kuriakose - the learned Counsel for the 1^st respondent, it is seen that the compensation amount due to the complainant therein was lying in fixed deposit, at the time when Ext.P2 order was issued on 15.06.2005. It is seen that the fixed deposit was made on 28.5.2005. In paragraph 3 of the judgment it is stated that the amount due to the complainant therein towards compensation was lying in fixed deposit in the account of the Sub Judge, Thalassery. The contention of the petitioner that the deposit effected in the bank has to be treated as one in discharge of liability incurred by the 1^st respondent was not accepted. As on the date of the fixed deposit, Ext.P1 order was already issued and Ext.P2 order was issued thereafter.

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W.P(C) Nos.5421 and 5424 of 2009-W 8

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Thus it can be seen that the loan in that case was not closed as on the date of Ext.P2 order and the benefit of Ext.P2 order could be extended to that loan. Therefore, the said judgment cannot apply to the factual circumstances of this case.

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A perusal of Ext.P1 as well as Ext.P2 orders will reveal that the concession granted therein are only for those loans which were in default of re-payment and remained due as on the date of the orders and not to loans which were closed. In the said circumstances, the order passed by the Lok Ayukta cannot be sustained. Accordingly, Ext.P5 order passed in both the cases are set aside.

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It is made clear that if the Government has issued any orders in favour of those shrimp farmers who closed their loans in respect of interest or principal already paid, this judgment will not stand in their way of availing such of those benefits, if any applicable to them.

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The writ petitions are allowed accordingly.

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Sd/-

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(P.V.ASHA, JUDGE)

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rtr/

Agency for Development of Acquacultuer v. Abdul Sathar & Another

Case brief

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Agency for Development of Acquacultuer v. Abdul Sathar & Another

Case brief

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