Asim Khan vs District Magistrate/Collector Nainital & Others

Ramesh Ranganathan, CJ

Heard Mr. M.S. Bhandari, learned counsel for the appellant and Mr. Vikas Pande, learned Standing Counsel appearing for the State Government.

The appellant herein is the petitioner in Writ Petition (M/S) No.1386 of 2019, wherein he sought a writ of certiorari to quash the recovery citation dated 22.04.2019 issued by the second respondent-Tehsildar.

The appellant-writ petitioner obtained a car loan from a finance company (the third respondent). On the ground that he had failed to repay the said amount to the third respondent, a recovery certificate was issued by the second respondent on 22.04.2019 for recovery of Rs.2,15,897/-. In the writ affidavit, the appellant-writ petitioner has specifically taken a plea that recovery of car loan/finance amount, from a private finance company, cannot be recovered as arrears of land revenue.

In the order under appeal, the learned Single Judge recorded that a specific query was put to the learned counsel for the appellant-writ petitioner whether the appellant-writ petitioner was willing to pay the due amount in easy installments; the answer was in the negative; the recovery citation was issued after due process, and the respondent-authority had legally issued the impugned recovery citation; and no interference was called for. The learned Single Judge dismissed the Writ Petition. Aggrieved thereby, the present appeal.

Mr. M.S. Bhandari, learned counsel for the appellant-writ petitioner, would submit that, since the amount due is towards the car loan obtained by the appellant-writ petitioner from the third respondent-a private finance company, the provisions of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (for short the "1972" Act) have no application. Learned counsel would draw our attention to Section 3 of the 1972 Act, which relates to recovery of certain dues as arrears of land revenue, and stipulates that it is only where any person is a party to any agreement under Clauses (a) to (d) thereunder, can a certificate be sent to the Collector mentioning the sum due from such person, and requesting that such sum together with costs of the proceedings be recovered as if it were arrears of land revenue.

According to the learned counsel, the agreement, entered into between the appellant-writ petitioner and the third respondent, does not fall within any of Clauses (a) to (d) of Section 3 of the 1972 Act; the word 'Corporation', referred to in Section 3(a) of the 1972 Act, is as defined in Section 2(a) of the Act which only means the Uttarakhand Financial Corporation established under the State Financial Corporation Act, 1951, and includes any other Corporation owned or controlled by the Central Government or the State Government and specified in a notification. According to the learned counsel, the third respondent is not a Corporation falling under Section 2(a) of the 1972 Act and, therefore, Section 3(a) of the 1972 Act has no application. Learned counsel would rely on the judgment of the Supreme Court, in Iqbal Naseer Usmani vs. Central Bank of India & others: (2006) 2 SCC 241, in this regard.

The question which has been raised in the Writ Petition is regarding the jurisdiction of the third respondent to issue a recovery certificate under the provisions of the 1972 Act, and for the Collector to take action pursuant thereto. While the third respondent may be entitled to recover the loan by way of a Suit, or other appropriate legal proceedings, it is only if such recovery is permissible under the 1972 Act, can its provisions be invoked. This question has not been examined by the learned Single Judge in the order under appeal; and, in as much as the Writ Petition was dismissed at the stage of admission, the third respondent was not even put on notice.

It would be wholly inappropriate for us, in an intra-court appeal, to express any opinion on merits, when these questions have not, in the first instance, been examined by the learned Single Judge. Suffice it, in such circumstances, to set-aside the order under appeal and to restore the Writ Petition to file. We request the learned Single Judge to examine the matter afresh, and in accordance with law.

The Special Appeal is disposed of accordingly. No costs.

Let a certified copy of this order be furnished to the learned counsel for the parties, by 25.06.2019, on payment of prescribed charges.