Harjit Singh Vs. Union of India [1994]
INSC 700 (17 December 1994)
MOHAN, S. (J) MOHAN, S. (J) VENKATACHALLIAH,
M.N.(CJ)
CITATION: 1994 AIR 1433 1994 SCC (2) 553 JT
1993 Supl. 336 1993 SCALE (4)679
ACT:
HEADNOTE:
The Judgment of the Court was delivered by
MOHAN, J.-
1.
This
writ petition under Article 32 out of which the contempt application arises
came to be preferred by members belonging to Sikh community who were living in
Delhi at the relevant time.
2.
A
tragic event beyond belief in the history of India took place on October 31,
1984 when Smt Indira Gandhi, the then Prime Minister was Under Article 32 of
the Constitution of India 554 assassinated. It was alleged that the assassins
belonged to the Sikh community. This inflamed feelings. As a result, riots
broke out all over the country. The members of this community were the target
of attack throughout India.
Particularly, in Delhi, several gruesome
incidents took place resulting in large scale arson, looting, systematic
violence, attacks on Gurdwaras. The duration of violence differed in various
areas. Many Sikhs were killed, houses were burnt. It was an unprecedented
carnage which rendered many Sikhs homeless; many families lost their kith and
kin and breadwinners. The details of these incidents are set out in the
affidavit in the writ petition. A Commission was appointed, headed by Justice
Ranganath Misra, (a Judge of this Court) to go into the causes of these riots.
The affidavit further proceeds that Government agencies subsequently went about
assessing damage and gave out that aid was being provided to the affected
persons for resettlement. In the garb of such resettlement efforts, the
petitioners were directed to fill up forms specifying the damages and further
be provided with loans from banks which would subsequently be converted into
grants and to start a life afresh. The petitioners who had witnessed and were
victims of a horrendous carnage took the administration as having a genuine
desire to see the victims through their difficult times and applied for
grants/loans as directed.
The banks which are nationalised banks,
released the amounts to the petitioners for the purposes of purchase of trucks
or for setting up businesses. Although signatures were taken on various
documents, yet it was always held out that the money advanced was in fact a
grant and would be converted into the same in due course. However, contrary to
the assurances held out, banks have started initiating course of processes for
recovery of the amounts so advanced. It is further submitted that the
petitioners who have started life for the third time afresh, namely, once
having been rendered homeless in 1947 during the partition of this country and
now having lost all means of livelihood as also most of the worldly possessions
besides having suffered the traumatic experience of loss of human lives of
their near and dear ones, once again started life from scratch and now are
being threatened with another disastrous situation which will again render them
destitutes and without means of livelihood. This has led the petitioners to
move this Court for protection of rights to life and livelihood. If the right
to livelihood is not treated as part of the constitutional right to life, the
easiest way of depriving the person of his right to life would be to deprive
him of his means of livelihood. Such deprivation would not only denude the life
of its facts and meaningfulness but it would make life impossible to live. The
right to livelihood is a part of life to live, as that, alone makes it possible
to live. On these averments, a writ of mandamus is prayed for to direct by an
appropriate writ, order or direction that Article 21 of the Constitution of
India which guarantees the right to life and also guarantees right to means of
livelihood be enforced and by an appropriate writ, order or direction direct
that the deprivation of means of livelihood be put an end to and further direct
the respondents not to insist upon nor claim further amounts from the
petitioners.
555 3.Various banks have filed counter-affidavits.
It is enough to refer to the affidavit of Punjab & Sind Bank which stands
as follows:
"The loans granted by the answering
respondents were not intended to be grants and it was never held out to the
petitioners that the loans granted by the answering respondent bank will not be
recovered from the petitioners and that the petitioners will not be required to
repay those amounts or the interest accrued thereon.
There is no fundamental or legal right of the
petitioners and none has been claimed against the answering respondent bank and
had in the normal course of banking granted to the petitioners loan facilities
for their business or for purchase of vehicles. The said loan was granted on
the terms and conditions, set out in the documents and executed by the said
petitioners in favour of the answering respondent bank. The relation between
the petitioners and the answering bank is governed by the said agreements and
no duty is cast on the respondent bank, alleged or at all.
The answering respondent bank further submits
the vehicle/ machinery/goods for the purchases of which loan was granted by the
bank are still being plied/used by the said borrowers.
The said vehicles/machinery/goods are the
security of the respondent bank. Therefore, no writ order of direction ought to
be issued restraining the bank from taking necessary steps for recovery and/or
safeguarding the security, viz. vehicles in question etc." Thus, it is
submitted that where the monies borrowed were utilised for purchases of vehicles
and the petitioners are having the benefit of vehicles, it is not open to them
to refuse repayment.
3.
On
August 25, 1989, this Court passed the following order:
"Mr R.S. Sodhi, learned counsel for the
petitioners in these writ petitions has no objection to pay the principal
amount borrowed by them but he is only asking for some relief with regard to
the rate of interest and the time of repayment. List the matters on September'
12, 1989." Again on November 7, 1989, the following order came to be passed:
"Learned Attorney General has made the
following statement in respect of the recovery of loans advanced to riot
victims of 1984 following the assassination of Mrs Indira Gandhi:
The banks will be advised to consider the
case of each loan on its merits and to give such relief as may be considered
just, fair and reasonable based on the facts of each case.
4.
Reserve
Bank of India is requested to advise the banks accordingly.' In view of the
above statement we direct the banks not to have recourse to recovery
proceedings until the banks decide the case of each individual concerned in
accordance with the advice of the Reserve Bank of India. This order does not
concern those persons who are not victims of the above aforesaid riots. The
order of stay of recovery made by us relates only to the aforesaid category of
persons. This does not prevent 556 any bank from instituting a suit in court if
it is felt that the suit is about to be barred by time. Even if any such suit
is filed it shall be kept pending until the relief to be granted is determined
by the banks as per the advice of the Reserve Bank of India. This order applies
to the entire class of riot affected victims referred to above whether they
have filed a petition in this Court or not. All these cases are disposed of.
Liberty to mention." For the violation
of this order, contempt proceedings have been taken out in Contempt Petition
No. 62 of 1991.
5.
Pursuant
to this order the Reserve Bank of India, advised the banks by its circular RPCD
No. PLFS. BC. 67/PS-126(1)-89/90 dated December 23, 1989 as under:
"(i) The banks should make a review of
the credit facilities granted to all the November 1984 riot affected borrowers
taking into account their repaying capacity, the operations in their accounts,
the nature and type of the securities available, the present condition of the
securities, other assets, if any, owned by them and all other relevant factors.
(ii)On the basis of the review, banks should
decide the case of each loanee on merits and afford such relief as may be
considered reasonable. The reliefs may include further extension of time for
repayment of dues, entering into compromise arrangements and in cases where
there are no reasonable chances of recovery of dues, write off of the amounts
due from the borrowers concerned." 6.Thereafter a decision was taken by
the Government of India to extend relief in deserving cases by way of reduction
of interest on bank loans to six per cent per annum in the case of borrowers
affected by the November 1984 riots. Accordingly, a "Central Interest
Subsidy Scheme for November 1984 Riot Affected Borrowers" was prepared and
issued by Reserve Bank of India, vide its circular RPCD No.
PLFS./BC-22/PS-126D/90/91 dated September 19,
1990. The main features of the scheme are as under:
"(i) The banks shall charge interest at
six per cent per annum on all eligible outstanding loans in a deserving case,
as on December 31, 1989, for the period from November 1, 1984 if the loan is
granted on or before November 1, 1984 or from the date of grant of loan, if
granted subsequently, to December 31, 1989.
(ii)The borrower shall be advised by the bank
in writing about the extent of relief provided in each account as also the
balance outstanding in the accounts as on December 31, 1989 and the date on
which relief is provided.
(iii)The relief granted by the banks shall be
reimbursed to the banks by the Central Government.
(iv)The entire interest that has accrued on
the outstanding loan amounts after December 31, 1989 shall be borne by the borrowers."
557 7.Presently I.A. No. 4 of 1992 has been preferred. It is submitted that
this is hardly a reasonable classification so as to classify victims of 1984
riots into those that took assistance from the bank as defined under the scheme
and those that took assistance from the financial institutions.
8. Accordingly a direction to this effect is
prayed for which is extracted below:
"....direct the Union of India as also
the Reserve Bank of India to include all financial institutions in the
definition of 'banks' both State and Central in its 'Central Interest Subsidy
Scheme for November 1984 Riot Affected Borrowers."' We have carefully
considered the above prayer. This is a human problem. Humanity is above law.
The petitioners are a pitiable lot and in plightful state. To them, the
language of humanity must be spoken. To quote the eloquent lines of
Rabindranath Tagore in "Kadi and Komal":
"Into the hearts of these Weary and
worn, dry and forlom We have to minstrel the language of humanity." 9.In a
normal case, the court may require the parties to abide by the terms of the
contract; but not where such calamities have fallen and the petitioners are
severely afflicted with adversity. As stated by H.K. White in "Lines on
Reading":
"Preach to the storm, and reason with
despair, But tell not Misery's son that life is fair." 10.If the
petitioners are to be substantially helped, the benefit of the circular will
have to be extended vis-a-vis the loans advanced by the financial institutions,
having regard to the circumstances in which the petitioners are placed. The
spirit of the circular is to help the petitioners. Therefore, it could hardly
matter whether loans are from the banks or financial institutions. To us, it
appears, the failure to refer to the financial institutions, is an inadvertent
omission. We find the prayer to be just and reasonable.
11.Accordingly, it is directed that the Union
of India as also the Reserve Bank ofIndia shall include all financial
institutions in the definition of 'banks'- both State and Central in its
'Central Interest Subsidy Scheme for November 1984 Riot Affected Borrowers'.
12.In view of the Circular of Reserve Bank of
India bearing RPCD No. PLFS. BC. 67/PS- 126(D)-89/90 dated December 23, 1989 no
further order is required in I.A. No. 3 of 1991.
13. I.A. No. 4 of 1992 is disposed of in the
above terms.
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