MANOJ TARWALA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioner had availed a cash credit limit of Rs. 10 lakhs against the security of mortgage of his property for his business from the Citizen Cooperative Bank Limited, Burhanpur, District Burhanpur, M. P. (for short 'the Cooperative Bank' ). A revenue recovery certificate, dated 23-3-2005 was issued by Tehsildar, Burhanpur under the M. P. Land Revenue Code, 1959 (for short 'the Land Revenue Code') to recover an amount of Rs. 11,26,796/- in the said cash credit account due from the petitioner. The petitioner filed a writ petition in this Court registered as W. P. No. 1711 of 2005, contending inter alia that the said amount said to be due from the petitioner can only be recovered under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the 1993 Act') and that the Tehsildar had not jurisdiction to issue the aforesaid recovery certificate under the Land Revenue Code. By order dated 7-4-2005, a learned Single Judge of this Court disposed of the said W. P. No. 1711 of 2005 with the direction that the petitioner would be at liberty to file an objection raising this jurisdictional issue. Thereafter, the petitioner filed a detailed representation before the Tehsildar Burhanpur contending inter alia that the amount sought to be recovered from the petitioner being more than Rs. 10 lakhs can only be recovered by the Co-operative Bank under the 1993 Act and not under the Land Revenue Code. By order dated 22-8-2005, the Tehsildar, Burhanpur rejected the said contention and held that the amount even though more than Rs. 10 lakhs can be recovered as arrears of land revenue under the M. P. Lokdhan Shodhya Rashiyon Ki Vasuli Adhiniyam, 1987 for short "the 1987 Adhiniyam'. Aggrieved by the said order dated 22-8-2005 passed by the Tehsildar, Burhanpur in Revenue Case No. 104- A/76-04-05, the petitioner has filed this writ petition with the prayer that the order dated 22-8-2005 passed by the Tehsildar, Burhanpur be quashed and pending disposal of the writ petition, the operation of the impugned order dated 22-8-2005 and its execution be stayed.

(2.) WHEN the matter was taken up for admission by the learned Single Judge, Mr. Sharad Verma, learned Counsel for the petitioner contended that the amount recoverable from the petitioner exceeds Rs. 10 lakhs and hence the Revenue Officer had no jurisdiction to recover the amount of arrears of land revenue under the 1987 Adhiniyam. He citad before the learned Single Judge a decision in Sanlosh Mishra v. Central Bank of India AIR2003 MP 218 , I (2004 )BC461 , [2004 ]122 Compcas929 (MP ), [2003 ]44 SCL547 (MP ), in which a learned Single Judge of this Court relying on the decisions of the Supreme Court in Allahabad Bank v. Canara Bank AIR 2000 SC 1535 as well as Mis. Unique. Butyle Industries Pvt. Ltd. v. U. P. Financial Corporation AIR2003 SC 2103 , 2003 (51 )BLJR666 , [2003 ]113 Compcas374 (SC ), [2003 (2 )JCR156 (SC )], (2003 )2 SCC455 , [2003 ]41 SCL418 (SC ), [2002 ]supp5 SCR666 , (2003 )1 UPLBEC901 had taken a view that the provisions of the 1993 Act would override the provisions of the 1987 Adhiniyam in view of the provisions of Section 34 (1) of the 1993 Act. While considering the aforesaid contention of Mr. Sharad Verma, the learned Single Judge found that in M. L. Chourasiya v. Tehsildar AIR2002 MP 151 , 2002 (2 )MPHT480 , a learned Single Judge of this Court had taken a contrary view that the provisions of the 1993 Act do not oust the jurisdiction in any manner, which is to be exercised under Section 3 of the 1987 Adhiniyam for recovery of a sum of Rs. 40 lakhs. Due to divergent opinion of the two learned Single Judges of this Court in the case or Santosh Mishra (supra), and in the case of MX. Chourasiya (supra), the learned Single Judge by order dated 22-9-2005, has referred the following two questions to a Larger Bench: (i) Whether the Co-operative Bank comes within the ambit and sweep of the 1993 Act ? and (ii) If it does not come within the ambit of the 1993 Act and the debts dues are more than Rs. 10 lakhs, whether the revenue recovery certificate can be issued ? By the said order dated 22-9-2005, the learned Single Judge as an interim measure, also directed that the Co-operative Bank will stay its hand to recover the amount on the basis of the revenue recovery certificate. Pursuant to the said order dated 22-9-2005, the matter has been referred to this Division Bench.

(3.) ON the first question, Mr. Sharad Verma, learned Counsel for the petitioner submitted that the Cooperative Bank comes within the ambit and sweep of the 1993 Act. He pointed out that Section 2 (d) of the 1993 Act defines 'bank' to mean a 'banking company1 and Section 2 (e) of the 1993 Act states that the expression 'banking company' shall have the meaning assigned to it in Clause (c) of Section 5 of the Banking Regulations Act, 1949 (for short 'the 1949 Act' ). He then referred to Clause (c) of Section 5 of the 1949 Act, which defines a 'banking company' to mean any company which transacts the business of banking. He submitted that the said Clause (c) of Section 5 of the 1949 Act has to be read with Section 56 (a) (i) of the 1949 Act which states that reference to a 'banking company' or the 'company' or 'such company' shall be construed as a reference to a 'cooperative Bank'. He referred to Section 56 (cc-i), which defines 'cooperative Bank' to mean a State Cooperative Bank, a Central Co-operative Bank and a Primary Cooperative Bank. He submitted that Section 56 (o) (1) (b) of the 1949 Act states that Co-operative Bank is one which holds a licence issued in that behalf by the Reserve Bank, subject to such conditions, if any, as the Reserve Bank may deem fit to impose. He contended that these provisions in Section 56 of the 1956 Act would show that a Co-operative Bank is also a 'banking company' and is a Bank within the meaning of Section 2 (d) of the 1993 Act. He submitted that Section 17 of the 1993 Act vests jurisdiction only on the Tribunal constituted under the said 1993 Act to entertain applications from the Banks for a recovery of dues to such banks and Section 18 of the 1993 Acts bars the jurisdiction of any Court or any other authority to exercise any jurisdiction or power or authority in-relation to such matters specified in Section 17 of the 1993 Act. According to Mr. Verma, therefore, the 1993 Act is applicable to the Co-operative Bank also for adjudication of recovery of debts due to it and for matters connected therewith or incidental thereto and the jurisdiction of all other authorities and Courts including revenue authorities to adjudicate the recovery of such dues due to the Co-operative Bank is barred.