Abdul Majeed Wani. v. Jammu and Kashmir Bank Limited & Ors.
Case at a glance
- Decided
- 20 May 2022
- Bench
- PUNEET GUPTA, ALI MOHAMMAD MAGREY
Provisions considered
Key paragraphs
- Para 0707. In view of above background, we do not find any merit in the instant writ petition for the relief(s) claimed, as such, same shall stand dismissed in limini along with connected CM(s). However, the petitioner shall be at liberty to avail the remedy as…
Judgment
Through: - Mr. A. Hanan, Advocate. … Respondent(s) CORAM: Hon’ble Mr Justice Ali Mohammad Magrey, Judge. Hon’ble Mr Justice Puneet Gupta, Judge. Per Magrey; J (Oral); ORDER 20.05.2022
In the instant petition, the petitioner has prayed for the following relief(s);
A. A writ in the nature of Certiorari, be issued quashing the impugned possession notice dated 11.05.2022 issued by Respondent No. 4 along with notice bearing No. JKB/Sagam/ Adv/2022-267 u/s 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, dated 08.03.2022. B. A writ of Mandamus commanding the respondents to consider the representations of the petitioner which have been submitted from time to time and consider the offer of the petitioners for settlement of the loan account before proceeding further with the recovery proceedings against the petitioner.
Admittedly, the petitioner is borrower of loan and having defaulted the installment, the respondent-Bank has proceeded against the petitioner in terms of the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act), for ensuring recovery of the amount from the petitioners, therefore, had reached the stage of issuance of possession notice.
We heard the learned counsel for the parties considered the matter and also perused the record.
Court fails to understand as to how the writ petition for the reliefs claimed is maintainable before this Court qua proceedings initiated by the Respondent-Bank in terms of the Act. In terms of the mandate of the Act, the remedy available to the petitioners is to file appeal against the impugned action initiated by the Respondent-Bank before the forum provided in the Act. Section 17 of the Act specifically provides that any person/borrower, aggrieved by any of the measures taken by the secured creditor or his authorised officer under the Act, has to approach the Debts Recovery Tribunal having jurisdiction in the matter. That being the position, instead of filing the instant petition before this Court, the right and proper course for the petitioners was to file appeal before the appropriate forum as per the Act.
Apart from the above, the principal for grant of Mandamus by the High Court in a writ petition under Article 226 is well settled. The violation of a right is sine qua non for maintaining the writ petition for the relief claimed. The scope under Article 226 of the Constitution of India is very limited as already held by the Division Bench of this Court in case titled Rafiq Ahmad Wani & Ors vs J&K Bank Ltd. & Ors, reported in 2020 (4) JKK 251 [HC]. This view is also supported by the Judgment of Hon’ble the Supreme Court of the country, while dealing with the scope of ‘grant of writs, in case titled ‘State of Kerela V. Smt. A. Lakshmikutty & Ors. reported in (1986) 4 Supreme Court Cases 632’, at Paragraph No.34, has observed as under: “34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary.
There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1, paragraph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed: “It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court.
The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation. The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment.” The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies.”
Again, in the case of ‘State of UP & Ors. V. Harish Chandra & Ors; reported in (1996) 9 Supreme Court Cases 309’, at Paragraph No.10, the Hon’ble Supreme Court has held thus: “10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law.
But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority.
Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court.
We may not be understood to imply that the High Court must issue such direction, if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not.”
In view of above background, we do not find any merit in the instant writ petition for the relief(s) claimed, as such, same shall stand dismissed in limini along with connected CM(s). However, the petitioner shall be at liberty to avail the remedy as available to him in terms of the Act. (Puneet Gupta) Judge (Ali Mohammad Magrey) Judge i. ii. Whether the Order is reportable? Whether the Order is speaking? Yes/ No. Yes/ No. SRINAGAR: 20.05.2022 “Hamid” ABDUL HAMID BHAT 2022.05.20 16:46 I attest to the accuracy and integrity of this document
Questions this judgment answers
Which statutory provisions did this judgment involve?
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Constitution of India — art. 226.
Which court decided this case, and when?
High Court of Jammu & Kashmir and Ladakh, on 20 May 2022. The bench was PUNEET GUPTA, ALI MOHAMMAD MAGREY.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.