IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WA.No. 1369 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.20315/2010 Dated 13/07/2010 .................... APPELLANTS/PETITIONERS: ------------------------------ 1. SRI.SIVANKUTTY K.M., KARIPPUKALAYIL HOUSE, ATHIRATTUKUNNU P.O., VIA KENICHIRA, WAYANAD DISTRICT - 673 596. 2. SMT.SUMATHI KUTTY V.D., W/O.SIVANKUTTY, -DO- 3. SRI.SOMAN K.M., PATTOMVEEDUMEETHAL HOUSE, KUTHIRAVATTOM P.O., KOZHIKODE - 673 016. BY ADV. SRI.P.C.THOMAS SRI.ROJO J.THURUTHIPARA RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE STATE BANK OF TRAVANCORE, (ASSOCIATE OF THE STATE BANK OF INDIA), HAVING ITS HEAD OFFICE AT TRIVANDRUM REPRESENTED BY ITS THE GENERAL MANAGER (OPERATIONS). 2. THE CHIEF MANAGER, STATE BANK OF TRAVANCORE, STRESSED ASSETS RESOLUTION CENTRE (SARC), 2ND FLOOR, THAVOT PLACE, KANNUR ROAD, CALICUT - 673 001. BY SRI.T. SETHUMADHAVAN, STANDING COUNSEL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1369 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by judgment dated 13.07.2010 in W.P.(C) No.20315 of 2010, the writ petitioners therein preferred the present appeal. 2. The appellants herein availed a loan from the 1st respondent Bank and defaulted in the repayment of the installments (the further details of the transaction may not be necessary for the purpose of this order). In view of the default referred to above, the respondent Bank issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 demanding payment of an amount of Rs.17,83,130/-. Apart from the demand, the respondent Bank by Ext.P2 notice purported to have been issued under Section 13(2) of the abovementioned Act, informed the appellants that on their failure to make the payment of the amount mentioned earlier, WA No. 1369 of 2010 -:2:- the Bank would proceed to take action as contemplated under Section 13(4) of the abovementioned Act. Section 14 authorises the creditor/bank to take possession of the secured assets among other things. Challenging the said decision of the bank, the writ petition came to be filed, essentially on the ground that the secured asset is a piece of agricultural land and therefore exempted under Section 31(i) of the Act. 3. By the judgment under appeal a learned Judge of this court disposed of the writ petition holding that the question whether the property is of a piece of agricultural land or not is a question of fact and therefore such a question cannot be conveniently adjudicated in a proceeding under Article 226 of the Constitution of India. The learned Judge further opined that such an adjudication can be conveniently taken by a Tribunal constituted under the Recovery of Debts due to Banks and Financial Institutions Act, 1993. It may be mentioned here that Section 17 of the Securitisation Act provides for an appeal in favour of a person who is aggrieved by any decision/measure contemplated under Section 13(4) of the Act. Though on the WA No. 1369 of 2010 -:3:- facts of the instant case no decision or no measure contemplated under Section 13(4) of the Securitisation Act has been taken, having regard to the totality of the facts and circumstances the learned Judge thought it fit to permit the appellants herein to approach the Tribunal even at this stage and also thought it fit that the appellants herein be protected for a period of one month and directed the respondents not to take any further steps pursuant to the impugned notice for a period of one month. 4. The learned counsel for the appellant, Sri.P.C.Thomas, however, very vehemently argued that even according to the respondent Bank, the property in question is a garden land and that being the case, the respondents cannot raise any dispute that the property in question is not agricultural land within the meaning of the SARFAESI Act. The learned counsel also argued that the expression of 'agricultural land' is not defined under the said act and the expression agriculture takes within its sweep various activities including horticulture etc. as held in the decision reported in Muhammed Basheer v. the Deputy General Manager, Kannur District Co-operative Bank Limited[2010 WA No. 1369 of 2010 -:4:- (2) KLT 577]. A Division Bench of this Court in the said decision, on an elaborate consideration of the question as to what is agricultural land for the purpose of Securitisation Act, held at paragraph 16 as follows: “16. “Agricultural land” is that species of land which could be said to be either used or ordinarily used for agricultural purposes. “Agricultural land” must have a connection with an agricultural user or purpose. It is on the nature of user that the meanings of 'Agricultural purpose' and 'agriculture' become relevant. Popular and authoritative Dictionaries say that “agriculture” is the art or science relating to the practices of cultivating the land. Agriculture is the process by which human skill is expended upon land. Human labour, with or without the aid of implements, tools and machines, is employed utilising the art or science of cultivating the ground. In its good sense, it means farming, horticulture, forestry etc., including the allied pursuits, preparation of land or fields in large quantities, preparation of soil, planting of seeds, raising and harvesting of crops etc. In certain shades, agriculture also includes management of livestock etc. But primarily, it is understood as the process of putting land to use in the growing of crops by employing human skill and labour upon land. As noted above from Raja Benoy Kumar Sahas Roy (supra), agriculture includes raising, on the land, of products which have some utility either for consumption or for trade and commerce. The term 'agriculture' cannot be defined or understood by the nature of the products cultivated. No such classification is conceivable unless specifically WA No. 1369 of 2010 -:5:- provided for, having regard to the specific need to make such classification. If such classification is to provide different consequences of a piece of statute law, including its applicability, we definitely think that such classification should be found explicit on the clear expressions in that particular statute.” 5. While we are in total agreement with the decision referred to above, we are of the opinion that whether a particular piece of land is agricultural land or not is required to be decided on a comprehensive examination of the various factors such as how such a piece of land is treated in the revenue records, the actual usage of the land, the period of such usage etc. We therefore see no reason to interfere with the judgment under appeal. It is open to the appellants to approach the Tribunal as directed by the judgment under appeal within a period of four weeks from today on the question whether the land in question is an agricultural land or not. It will be open to the parties to the dispute to adduce evidence in support of their contentions. The respondents however, shall not take any further steps pursuant to the impugned proceedings in the instant writ petition for a WA No. 1369 of 2010 -:6:- period of 4 weeks from today and thereafter it is open to the parties to seek such appropriate orders from the Tribunal, if the appellant so approaches the Tribunal within the abovementioned period of four weeks. If the appellants fail to approach the Tribunal within a period of four weeks from today, it is open to the respondent bank to proceed further with the action under the Securitisation Act. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb