1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Darbara Singh Vs. State Bank of India and Others. S.B.Civil Writ Petition No. 3977/2007 ......... Date of Order : 02/07/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR BY THE COURT Mr. H.K.Jain for the petitioner. Mr. J.K.Chanda for the respondent. By the instant writ petition under Articles 226 and 227 of the Constitution of India, Annex.1 dated 7.6.2007 has been challenged by the petitioner. I have heard learned counsel for the parties. The facts and circumstances giving rise to the instant writ petition are that the petitioner took agriculture loan from respondent No.1 State Bank of India (for short 'the Bank' hereinafter) for the purchase of tractor for a sum of Rs. 3 lac and a sum of Rs. 40,000/- for Kisan Credit Card in the year 2004. 2 The petitioner was required to refund the loan amount to the bank in installments agreed by the parties by loan agreement, however, the petitioner failed to repay the loan amount and therefore, the respondent bank moved to respondent No.3, Sub Divisional Magistrate (Revenue), Gharsana (for short “the SDM” hereinafter) under the provisions of Rajasthan Agriculture Credit Operation (Removal of Difficulties) Act, 1974 (for short 'the Act of 1974” hereinafter) and by notice dated 7.6.2007 the SDM called upon the petitioner to deposit a sum of Rs.4,94,288/- and interest thereon and to appear and pay the said amount on 21.6.2007, failing which the immovable property would be attached and put to auction. That order came to be challenged by the petitioner. It is contended by learned counsel for the petitioner that in the instant case, the proviso to sub-section (1) of Section 13 of the Act of 1974 has not been complied with and the petitioner has not been afforded an opportunity of hearing as also the prescribed authority SDM has not determined the liability and even after determination, the attachment of immovable property and putting to auction can only be done after the period of three months therefrom, whereas in the notice Annex.1 there is no such averment. Counsel for the petitioner has relied on a Division Bench decision of this Court in Chet Ram and Another Vs. State of Rajasthan and Ors. 2005 (1) 3 CDR 661 (Raj.). Section 13 (1) 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 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, directing 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: Provided that no order shall be made by the Prescribed Authority under this sub-section for the sale of any interest therein or any other immovable property upon which the payment of money is charged or mortgaged as the case may be, unless the agriculturist or the heir or legal representative of the agriculturist, as the case may be, has been given an 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 determination of liability by such authority.” In para 4 of the Report, Division Bench of this Court in Chet Ram and Another Vs. State of Rajasthan and Ors. 4 observed as under :- “A bare perusal of the proviso to sub-sec. (1) of Sec. 13 goes to show that no order is envisaged to the detriment of agriculturist without affording adequate opportunity of hearing to the debtor unless the Prescribed Authority is firstly required to determine the liability of the debtor towards the bank on making an application. Any coercive method of recovery cannot be adopted by the Prescribed Authority, unless a notice calling upon the debtor to deposit the amount so determined is given and three months' time elapses thereafter without compliance of such notice. Apparently, it cannot be said that the powers conferred on the Prescribed Authority is uncanalised or unbriddled for taking recourse to recover dues of the bank by sale of immovable property of the judgment-debtor.” Thus, from the material available on record, it is clear that the petitioner agriculturist has not been afforded an opportunity of hearing by the prescribed authority by serving a notice calling upon him to pay the amount due and default has been made in payment thereof for three months after determination of liability by such authority. The order Annex.1 does not speak of having afforded an opportunity to the petitioner and determination of liability has been made. In the circumstances, therefore, the order impugned deserves to be set aside and the matter deserves to be remanded to the SDM to proceed afresh in accordance with the provisions of Section 13 (1) of the Act of 1974. Consequently, the writ petition is allowed. The order impugned dated 7.6.2007 is set aside and the matter is 5 remanded to the respondent No.3 Sub Divisional Magistrate (Revenue) Gharsana with a direction to proceed in the matter in accordance with the proviso to sub-section (1) of Section 13 of the Act of 1974. Learned counsel for the petitioner submits that the petitioner would appear before the SDM, Gharsana without there being necessity of notice. In view of the statement of counsel for the petitioner, let the petitioner to appear before the SDM, Gharsana on 21.7.2008 and SDM to proceed strictly in accordance with the provisions noticed above. There shall be no order as to costs. Stay petition also stands disposed of. (H.R.PANWAR), J. rp