IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 12230 of 2009(W) -------------------------- PETITIONER(S): ------------------ JOSEPH, S/O. ULAHANNAN, CHENNAMKULATH HOUSE, MYSORE MALA, MYSORE MALA, MUKKOM, KOZHIKODE. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): ------------------- 1. RESERVE BANK OF INDIA, REP. BY ITS DEPUTY GOVERNOR, RESERVE BANK OF INDIA, NEW DELHI. 2. COMPLAINT REDRESSAL OFFICER, FEDERAL BANK, FEDERAL TOWERS, MAVOOR ROAD, CALICUT - 673016. 3. FEDERAL BANK, MUKKOM BRANCH, REP. BY ITS MANAGER, MUKKOM, KOZHIKODE. 4. UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF FINANCE, PARLIAMENT HOUSE, NEW DELHI. ADV. SRI.C.V.ANTONY FOR R2 SMT.LEELAMMA ANTONY FOR R2 & R3 SRI.A.ANTONY FOR R3 SRI.T.P.M.IBRAHIMKHAN, ASG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.12230/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE SCHEME DATED 23.5.2008. EXT.P2: TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DT 8.8.2008. EXTS. OF R3 EXT.R3(a): TRUE COPY OF LOAN APPLICATION DATED 8.6.2006 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.R3(b): TRUE COPY OF REQUEST DATED 8.6.2006 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 12230 OF 2009 (W) ===================== Dated this the 25th day of September, 2009 J U D G M E N T The prayer made in this writ petition is to quash Ext.P2 and to direct the respondents to grant waiver of the liability of the petitioner in terms of Ext.P1, the Agricultural Debt Waiver and Debt Relief Scheme, 2008 introduced by the Government of India. 2. Going by the undisputed facts of this case, the petitioner originally availed of two agricultural loans, for Rs.1.15 lakhs under the ACC Scheme and Rs.1.10 lakhs under the AMTL Scheme. Subsequently, he applied for limit enhancement of the loan availed of under the ACC Scheme to Rs.5 lakhs retaining the AMTL loan. Ext.R3(a) produced along with the counter affidavit filed by the Bank is the loan application, which states that the petitioner owns 4.12 acres of land. It is also stated that he holds 4.5 acres of land on lease for 3 years from 2004. Ext.R3(b) is a letter submitted by the petitioner requesting the Manager of the Bank to sanction the enhanced limit immediately as “I require funds to start pineapple cultivation in 2.16 acres (out of 4.50 acres) in the leased land”. Accordingly, request for enhancement WPC 12230/09 :2 : was allowed and the amount was availed of . 3. Default was committed, and when the liability was thus remaining outstanding, Ext.P1 Scheme was introduced by the Government. In terms of the provisions contained in Ext.P1 Scheme, the Bank prepared a list of defaulters eligible for the benefit of the Scheme. But, however, the list did not include the petitioner as eligible for complete waiver of the dues. That made the petitioner to file a complaint before the Grievance Redressal Officer appointed under the Scheme. His complaint was considered and was rejected as per Ext.P2 order stating that it is on the basis of the extent of land declared at the time of availing of the loan that the beneficiaries are classified, and that at the time when the loan was availed of, the petitioner had produced documents evidencing that he had more than 5 acres of land. On this basis, it is stated that he is not eligible for full waiver as contemplated in Ext.P1. It is thereupon that this writ petition was filed seeking to quash Ext.P2 order and to direct the respondents to extend the eligible benefit under Ext.P1 Scheme. 4. In the counter affidavit filed by the Bank, though there is no dispute about the loans availed of by the petitioner, what is WPC 12230/09 :3 : contended is that at the time of enhancement of the limit of loan, the petitioner had declared himself to be owning 4.12 acres of land and possessing 4.50 acres of land as lessee. It is therefore stated that the total extent of land held by the petitioner as owner and lessee is 8.62 acres of land. According to the Bank, such a borrower is only an other farmer eligible for debt relief under Ext.P1 scheme since the extent of land owned/cultivated is more than 5 acres. Respondent Bank is also placing reliance on the judgment of this Court in WP(C) No.36483/08, which was confirmed by the Division Bench in its judgment in WA 372/09. 5. A reading of Ext.P2 order and the counter affidavit filed by the Bank shows that the ground on which the benefit of full waiver as contemplated under Ext.P1 was denied to the petitioner only for the reason that, going by the application filed by the petitioner at the time when he applied for enhancement of limit of loan, he had mentioned that he had 4.12 acres of land as owner and that he was holding 4.50 acres of land as lessee. The question is, whether going by the provisions of Ext.P1 Agricultural Debt Waiver and Debt Relief Scheme, 2008, the Bank is right in the stand adopted by it. WPC 12230/09 :4 : 6. Marginal Farmer, Small Farmer and Other Farmer have been defined in Clauses 3.5, 3.6 and 3.7 which reads as under. 3.5. 'Marginal Farmer' means a farmer cultivating (as owner or tenant or share cropper) agricultural land up to 1 hectare (2.5 acres) 3.6. ' Small Farmer' means a farmer cultivating (as owner or tenant or share cropper agricultural land of more than 1 hectare and up to 2 hectares (5 acres) 3.7. 'Other Farmer' means a farmer cultivating (as owner or tenant or share cropper) agricultural land of more than 2 hectares (more than 5 acres). 7. The entitlement of the petitioner to be classified under any one of the aforesaid categories should depend upon the definition as contained in the aforesaid provisions of Ext.P1. A reading of the aforesaid three provisions would show that the emphasis is on the expressions “farmer cultivating”. Therefore if the extent of land cultivated by the tenant comes within the land holding criteria as provided in the aforesaid provisions, a farmer will be entitled to be classified in terms of the aforesaid provisions. 8. In this case, as already seen, the Bank has classified the petitioner as Other Farmer based on the land held by him as owner and as lessee, without applying the yardstick of the area cultivated by the petitioner. The application form produced as WPC 12230/09 :5 : Ext.R3(a) shows only the area held by the petitioner as owner and as lessee. Ex.R3(b) letter that was submitted by the petitioner along with the loan application and relied on by the Bank shows that he availed of the loan for cultivating 2.16 acres of land out of the 4.50 acres of leased land. This factual position is also not disputed by the Bank. 9. Therefore going by Clauses 3.5, 3.6 and 3.7 of Ext.P1 referred to above and giving emphasis to the area cultivated by the farmer, I am inclined to think that the eligibility of the petitioner for waiver should be reckoned with reference to the area cultivated by him availing of the loan viz., 2.16 acres of land. Admittedly, the claim of the petitioner was not examined by the Bank in the above manner, and if so examined, the view taken by the respondents, as is reflected in Ext.P2, is clearly erroneous. Going by the above reasoning, the petitioner is entitled to succeed. 10. However, the counsel for the 3rd respondent relied on the judgment of this Court in WP(C) No.36483/08, which was confirmed by the Division Bench in WA No.372/09. A reading of these two judgments show that the claim of the petitioner therein WPC 12230/09 :6 : to be classified as a marginal farmer was declined for the reason that going by the declaration made by the petitioner, the area under cultivation was 3.608 hectares of land, which is far above the limit specified in the Scheme. This judgment does not in any manner support the case canvassed by the 3rd respondent that eligibility of the farmer should be decided with reference to only the area of land held by him as owner or lessee, irrespective of whether the area under cultivation is much less. 11. In my view, the reasoning adopted by the Bank in Ext.P2 cannot be sustained and Ext.P2 will stand quashed. The 2nd respondent is directed to reconsider the matter in the light of the observations made above and pass appropriate orders on the petitioner's application with notice to the parties. This shall be done as expeditiously as possible, at any rate, within 2 months from the date of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp