PETITIONER:
HARJIT SINGH
Vs.
RESPONDENT:
UNION OF INDIA (MOHAN, J.)
DATE OF JUDGMENT17/12/1994
BENCH:
MOHAN, S. (J)
BENCH:
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:
JUDGMENT:
The Judgment of the Court was delivered by
MOHAN, J.- 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.
4. 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.
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.
558
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