The Kizhuvilam Service ... vs The Kerala State Farmers Debt ...
2021 Latest Caselaw 13488 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                     WP(C) NO. 29702 OF 2013
PETITIONER/S:

         THE KIZHUVILAM SERVICE CO-OPERATIVE BANK
         LTD.NO.2405
         REPRESENTED BY ITS SECRETARY, MUDAPPURAM.P.O.,
         CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695314.

         BY ADVS.
         SRI.V.G.ARUN
         SRI.T.R.HARIKUMAR



RESPONDENT/S:

    1    THE KERALA STATE FARMERS DEBT RELIEF COMMISSION
         KSFDRC OFFICE, THIRUVANANTHAPURAM-695001.

    2    SMT. SOBHANAKUMARI
         SARIBHAVAN, KADUVAYIL VELLURKONAM, ATTINGAL.P.O.,
         THIRUVANANTHAPURAM.

    3    SMT. PRASANNAKUMARI.G.
         ERATHU VEEDU, PARAYATHUKONAM.P.O., KIZHUVILAM,
         THIRUVANANTHAPURAM.

    4    SMT. R. VELAMMAL,PADMAVILASAM BUNGLAW,
         KOONTHALLOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM.


OTHER PRESENT:

         SMT.MABLE.C.KURIAN, GP


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. WP(C) 29702/13


                                       -2-


                          P V KUNHIKRISHNAN, J.

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                      W.P.(C) No: 29702 OF 2013
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                  Dated this the 1st day of July, 2021

                                JUDGMENT

This Writ Petition is filed with the following prayers:-

(i) issue a writ of certiorari calling for the records leading to the issuance of Exts.P1, P2, P3 and P8 and quash the same, and

(ii) To grant such other reliefs as this Hon'ble court may deem fit in the circumstances of this case.

2. Exts.P1, P2, P3 and P8 are the orders passed by the Kerala State Farmers Debt Relief Commission. Exts.P1 to P3 are the final orders passed by the Commission and Ext.P8 is the show cause notice issued for not complying with the direction in the above orders. Exts.P1 to P3 are passed in favour of respondents 2 to 4. All the orders are Case No. WP(C) 29702/13

similar in fashion. For clarification, I will extract Ext.P1 order as follows:-

"The applicant is a distressed farmer. She submitted sufficient records to declare her so. The applicant availed a loan of Rs.100000/- from the respondent bank. Inclusive of interest the loan outstanding as on today is Rs.120528/. Out of this the bank has agreed to waive Rs.528/. The appropriate level of debt is fixed at Rs.120000/- (Rupees one lakh twenty thousand only).

As the applicant is entitled to debt relief under the Kerala State Farmers' Debt Relief Commission Act, 2006, the Commission in exercise of the power conferred by Section 5(3) of the said Act, grants debt relief of Rs.50000/- (Rupees fifty thousand only), which shall be taken over by Government. The balance amount of Rs.70000/- shall be remitted by the applicant on or before 30.8.2011."

Case No. WP(C) 29702/13

3. Heard the learned counsel for the petitioner and

the learned Government Pleader.

4. The learned counsel for the petitioner submitted

that this court in judgment dated 15.3.2016 in W.P(C)

No.22094 of 2010, which Writ Petition was also filed by

the petitioner Bank, clearly stated that the commission

should re-examine all the cases afresh in the light of the

observations made in that judgment. It will be better to

extract the relevant portion of the judgment:

"2.Private respondents are debtors of the petitioner, a Service Cooperative Bank. They moved the Kerala State Farmers' Debt Relief Commission for reliefs under the Debt Relief Scheme. Here and now, I may point out that the consideration of this writ petition is on the basis of the provisions of the Agricultural Case No. WP(C) 29702/13

Debt Waiver and Debt Relief Scheme, 2008, 'Scheme', for short, which contains the guidelines for implementation of the Debt Waiver and Debt Relief Scheme announced by the Finance Minister in his Budget speech 2008-2009.

3. Going by the materials placed on record by the petitioner Bank, the private respondents had taken different facilities, which were primarily for housing purposes.

The Commission has treated all the private respondents as agricultural debtors for the reason that they are agriculturalists belonging to 'distress farmer' category, and accordingly, the loans were waived to the extent stated in the orders impugned in this writ petition. The larger question sought to be raised by the petitioner is a perennial one, which is demonstrated through the pleadings. Other than the private respondents, it appears that the benefit of the Scheme has been extended by the Commission to very many other debtors of the Bank and there is a likelihood of the Case No. WP(C) 29702/13

same situation continuing to run. This will necessarily create an economic fiasco in the affairs of the petitioner Bank, unless the waiver component drops into its fund from the Union Government or NABARD, as the case may be. Not only that, the Commission has gone to the extent of segregating a portion of the debt as the amount to be waived and another amount to be reduced, ultimately, leaving the Bank to suffer at its own hands for a particular component in each case. This is quite impermissible either in terms of the provisions of the Scheme or the Kerala Farmers' Debt Relief Commission Act, 2006, 'Act', for short. The aforesaid Act gives authority to the Commission to decide as to whether a particular person is a distress farmer and whether a particular area is a distress area and as to what is the extent of distress that could be reckoned for the purpose of extending the relief. But, the Commission does not have the power to pass an order enforcing any particular decision as to waiver Case No. WP(C) 29702/13

on any financial institution, including a cooperative Bank. Its functioning is primarily and predominantly recommendatory in nature and its jurisdiction is to make recommendation on the basis of its views on facts in relation to each case or group of persons who could be treated as distress farmers. Nothing more.

4. A very persuasive submission has been made by the learned counsel for the fifth respondent that his client gets only the benefit of `10,000/- and, therefore, at this distance of time, this Court may not interfere with that. That plea may be a one that is fairly reasonable in defence to exercise authority in writ jurisdiction. But, the case in hand does not get confined to the rights or liabilities of the fifth respondent. There are larger issues which require the attention of the Commission.

5. On the basis of the provisions of the Act and the Scheme, it is necessary that the Commission re-examines the cases of all the private respondents as also the case of those Case No. WP(C) 29702/13

persons whose list has been charted out and placed on record by the petitioner Bank. To have an assessment of the impact that would be had on the petitioner, this exercise needs to be carried out because the terms of the Scheme and the provisions of the Act do not give the authority to issue any waiver order except in strict conformity with the provisions of the Scheme.

In the result, this writ petition is ordered directing that the first respondent will hear the petitioner society in relation to the matters in which the private respondents were parties, and also such other cases which the petitioner may seek re-consideration. A final decision will be taken by the Commission with notice to all parties concerned. It shall be ensured that the benefit of any order already issued is permitted to be enjoyed only with further requisite clauses whereby the waived amounts have to come to the writ petitioner from appropriate sources, namely, Union Government, NABARD or the State Case No. WP(C) 29702/13

Government. This writ petition is ordered accordingly."

5. From paragraph No.5 of the above judgment, it

is clear that 'On the basis of the provisions of the Act and

the Scheme, it is necessary that the Commission re-

examines the cases of all the private respondents as also the

case of those persons whose list has been charted out and

placed on record by the petitioner Bank.'

6. Ext.P4 is the list which was produced in the

earlier Writ Petition. In Ext.P4, serial Nos.26, 28 and 116

are the cases of respondents 2 to 4. In the said

circumstances, according to me, Exts.P1 to P3 can also to

be set aside and the matter can be remanded to the

Commission for fresh consideration in the light of the

observations in the judgment dated 15.3.2016 in W.P(C) Case No. WP(C) 29702/13

No.22094 of 2010. Consequently, Ext.P8 also can be

quashed.

Therefore, this Writ Petition is allowed in the following manner:-

(i) Exts.P1 to P3 and P8 are quashed.

(ii) The 1st respondent is directed to re- consider the applications covered by Exts.P1 to P3 afresh, in the light of the observations of the judgment of this court dated 15.3.2016 in W.P(C) No.22094 of 2010.

Sd/-

P V KUNHIKRISHNAN, JUDGE.

dl/ Case No. WP(C) 29702/13

APPENDIX OF WP(C) 29702/2013

PETITIONER ANNEXURE

A TRUE COPY OF THE ORDER PASSED BY THE Ext.P1 FIRST RESPONDENT IN THE CASE OF 2ND RESPONDENT DATED 13-8-2010.

A TRUE COPY OF THE ORDER PASSED BY THE Ext.P2 FIRST RESPONDENT IN THE CASE OF 3RD RESPONDENT DATED 13-8-2010.

A TRUE COPY OF THE ORDER PASSED BY THE Ext.P3 FIRST RESPONDENT IN THE CASE OF 4TH RESPONDENT DATED 30-6-2010.

A COPY OF THE LIST CONTAINING THE NAMES AND DETAILS OF THE DEBTORS GRANTED Ext.P4 BENEFIT BY THE FIRST RESPONDENT COMMISSION.

A TRUE COPY OF THE REPORT DATYD DATED 18- 10-2010 SUBMITTED BY THE PETITIONER Ext.P5 REGARDING THE COMPLAINT OF THE 2ND RESPONDENT.

A TRUE COPY OF THE REPORT DATYD DATED 18- 10-2010 SUBMITTED BY THE PETITIONER Ext.P6 REGARDING THE COMPLAINT OF THE 3RD RESPONDENT.

A TRUE COPY OF THE REPORT DATYD DATED 18- 10-2010 SUBMITTED BY THE PETITIONER Ext.P7 REGARDING THE COMPLAINT OF THE 4TH RESPONDENT.

A TRUE COPY OF THE SHOW CAUSE NOTICE NO. A6. 4452/13/K.S.F.D.R.C. DATED 23-10-2012 Ext.P8 AND CORRECTED AS 4-11-13 ISSUED BY THE FIRST RESPONDENT.