1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 5441/2007 (Smt. Shanti & Ors. Vs. State of Rajasthan & Ors.) ......... Date of Order : 20/08/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. G.J.Gupta for the petitioners. Mr. J.K.Chanda for the respondents. BY THE COURT By the instant writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged notice Annex.3 dated 25.07.2007. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the notice under challenge is bad in law in view of provisions of Sub-section (1) of Section 13 of the Rajasthan Agricultural Credit Operations (Removal of Difficulties) Act, 1974 (for short 'the Act of 1974' hereinafter) as in the instant case, neither liabilities have been determined nor the opportunity of hearing has been granted to the petitioner debtors and therefore, the 2 notice violates the mandate of Sub-section (1) of Section 13 of the Act of 1974. Learned counsel for the petitioners has relied on a decision of this Court in Chet Ram and Anr. Vs. State of Rajasthan and Ors. 2005 (1) CDR 661 (Raj.). Section 13 of the Act of 1974 reads as under:- “13. Recovery of dues of a bank through a prescribed authority.- (1) Notwithstanding anything contained in any law for the time being in force, an official of the State Government notified by the State Government as the prescribed authority for the purpose of this section may, on the application of a bank, make an order, on or any agriculturist or his heir or legal representative [or his guarantor], directing the payment of any sum due to the bank on account of financial assistance availed of by the agriculturist, by the sale of any land or interest therein or any other immovable property, upon which the payment of such money is charged or mortgaged [or any other property in his possession]: Provided that no order shall be made by the prescribed authority under this sub-section for the sale of any land or any interest therein or any other immovable property upon which the payment of money is charged or mortgaged [ or any other property in his possession, as the case may be, unless the agriculturist or the heir or legal representative [or his guarantor] of the agriculturist, as the case may be, has been given an 3 opportunity of being heard and has been served with a notice by the prescribed authority calling upon him to pay the amount due and default has been made in payment thereof for three months after the determination of liabilities by such authority. (2) Every order passed by the prescribed authority in term of sub-section (1) shall be deemed to be a decree of a civil court and shall be executed by him in the same manner as a decree of such court. Explanation.- For the purpose of exercising powers conferred by this sub-section, the prescribed authority shall be deemed to be a civil court. (3) Nothing in this section shall debar a bank from seeking to enforce its rights in any other manner under any other law for the time being in force.” The Division Bench of this Court in Chet Ram and Anr. Vs. State of Rajasthan and Ors. (supra) observed as under:- “It mandates in no uncertain terms that before resort can be had to recovery the amount of debt by selling the immovable property, charged or mortgaged to secure repayment, the Prescribed Authority is required to determine the liability that exists. The determination of liability is to be made after giving an opportunity of hearing to the debtor. It is only after liability of debtor is determined, the Prescribed Authority is 4 required to give a minimum three month's notice calling upon the debtor to make payment of the sum so determined. If the debtor fails to make payment for three months after receipt of notice, only and only then, the Prescribed Authority can take recourse to realize the determined amount by sale of debtors such interest in immovable property or the immovable property which is charged or mortgaged with the Bank.” In the instant case, the Prescribed Authority did not take recourse to the provisions of sub-section (1) of Section 13 of the Act of 1974 inasmuch as, the Prescribed Authority has not determined the liabilities that exist and the determination of liability is to be made after giving an opportunity of hearing to the debtors. In the instant case, neither the liability was determined nor the opportunity was given to the petitioner- debtors. Even after the liability of debtor is determined, the Prescribed Authority is required to give a minimum three months' notice calling upon the debtors to make payment of the sum so determined. In the instant case, firstly, the liability was not determined, secondly no opportunity was given to the petitioners before determining the liability and thirdly the notice of three months calling upon the petitioner-debtors to make payment was not given and therefore, the notice impugned cannot sustain and is liable to be set aside in view of Division Bench decision of this Court in Chet Ram and Anr. Vs. State of 5 Rajasthan and Ors. (supra). Consequently, the writ petition is allowed. The notice impugned Annex.3 dated 25.07.2007 is quashed and the matter is remanded to the Prescribed Authority i.e. respondent No.2, to decide the matter afresh by following the procedure prescribed under Section 13 of the Act of 1974. (H.R.PANWAR), J. rp 6 S.B.CIVIL MISC. STAY PETITION NO. 4028/07 IN S.B.CIVIL WRIT PETITION NO. 5441/2007 Date of Order : 20/08/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. G.J.Gupta for the petitioners. Mr. J.K.Chanda for the respondents. Since the writ petition itself has been allowed, the stay petition stands disposed of. (H.R.PANWAR), J. rp