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Judgment
Ashok Bhushan, J.—Heard Sri Kushal Kant, learned Counsel for the petitioners and the learned Counsel appearing for the respondents 1 and 3.
By this writ petition the petitioners have prayed for quashing the order dated 3,9,2002 passed by the Recovery Officer, Debt Recovery Tribunal, Allahabad and order dated 30.11,2006 passed by the Debt Recovery Tribunal dismissing the appeal No. 224 of 2002 filed against the order of the Recovery Officer.
Learned Counsel appearing for the respondents raised a preliminary objection with regard to entertainability of this writ petition. Learned Counsel for the respondents submitted that the petitioners have statutory remedy of filing on appeal before the appellate tribunal u/s 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 against the order dated 30.11.2006 passed by the Debts Recovery Tribunal hence the writ petition need not be entertained by this Court under Article 226 of the Constitution. Reliance has boon placed on Division Bench judge-merit of Delhi High Court reported in II (2004) BC 48 Continental Construction Ltd. and Ors. v. State Bank of India and Ors.
Learned Counsel for the petitioners refuting the preliminary objection of learned Counsel for the respondents contended that no remedy of appeal is available to the petitioners against the order dated 30.11,2001) passed by the Tribunal. learned Counsel submitted that the order dated 30.11.2006 has been passed by the Tribunal in exercise of its appellate power u/s 30 of the Act. He submits that no appeal is contemplated u/s 20 against an order passed by the Tribunal in exercise of its appellate jurisdiction. Learned Counsel for the petitioners in support of his contention placed reliance on the judgements of the apex Court on Roop Chand Vs. State of Punjab, Another judgement relied by him on a judgement of the apex Court In 2002 (2) BCLR 272 Union of India and Anr. v. Delhi High Court Bar Association and Anr..
I have considered the submissions of learned Counsel for the parties and have perused the record.
The question which has arisen in this writ petition is as to whether against the appellate order passed by the Dobt Recovery Tribunal u/s 30 of the Act, a further appeal can be filed u/s 20 of the Act? For answering this question scheme of the Act has to be looked into, Section 2(a) defines "Appellate Tribunal" as an Appellate Tribunal established under Sub-section (1) of Section 8. Section 2(o) defines "Tribunal" means the Tribunal established under Sub-section (1) of Section 3. Section 20 provides for an appeal to the Appellate Tribunal. Section 20(1) which is relevant in the present case is quoted below:
20(1) Saw as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an appellate Tribunal having jurisdiction in the matter."
A perusal of provisions of Section 20(1) indicate that the appeal is provided against an order made, or deemed to have been made, by a Tribunal. Other relevant provision for purpose of this case is Section 30 of the Act. Section 30 of the Act has been amended by Act No. 1 of 2000. Prior to its amendment Section 30 provided:
The orders of the Recovery Officer be deemed as orders of the Tribunal:
Notwithstanding anything contained in Section 29, the order made by the Recovery Officer in exercise of his power u/s 25 to 28 (both inclusive), shall be deemed to have been made by the Tribunal and an appeal against such order shall lie to the appellate Tribunal.
Thus Section 30 as originally enacted provided an appeal against an order of Recovery Officer tot he appellate Tribunal and the order of Recovery Officer was deemed to be an order of Tribunal. Section 30 was amended with effect from 17.1.2000 and now amended section provides as under:
Appeal against the order of Recovery Officer:
(1) Notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.
The amended Section 30 now provides an appeal within thirty days from an order of the Recovery Officer to the Tribunal. Thus the appellate power has also been conferred on the Tribunal against the order of the Recovery Officer which was not earlier with the Tribunal. Earlier the appellate forum against the order of Recovery Officer was also the appellate Tribunal.
The right of appeal is creature of statute. The Privy Council in AIR 1935 5 (Privy Council) long ago observed:
After all, it is to be remembered that all appeals in this country and elsewhere exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them.
The question to be answered is that as to whether the appeal can be filed against an order of Tribunal which order is passed by the Tribunal in exercise of appellate jurisdiction u/s 30. The appeal tot he appellate Tribunal has been provided for against an order of Tribunal u/s 20(1) as noted above. Taking plain and simple meaning of words, used in Section 20(1) of the Act that right of appeal has been provided to any person aggrieved by an order made or deemed to have been made by a Tribunal under this Act, the words are wide enough to give right of appeal to an aggrieved person against an order passed by the Tribunal under the Act. The order of Tribunal passed u/s 30 is also an order of Tribunal under the Act. Section 20(1) does not create any exception with regard to those orders of the Tribunal which have been passed in exercise of its appellate jurisdiction. All orders passed by the Tribunal under the Act are appealable before the appellate Tribunal by virtue of Section 20(1). The order passed by the Tribunal in exercise of powers under Sections 17 and 19 or order passed by the Tribunal deciding an appeal filed u/s 30 or passing on order u/s 31 or Section 31A are all appealable. Learned Counsel for the petitioner has relied on the judgement of the apex Court in Roop Chandra v. State of Punjab and Anr. (supra). The apex Court in the said judgement had considered the provisions of Section 21(4) and Section 42 of East Punjab Holdings ( Consolidation and Prevention of Fragmentation) Act, 1948. Section 21 (4) provided that any person aggrieved by the order of the Settlement Officer (Consolidation) may within sixty days of that order appeal to the State Government. Section 41 of the Act provided that the State Government for administration of the Act appoint such person as it think fit and may by notification delegate any power or function under this Act to any officer either by name or designation. The State Government by notification has delegated its power u/s 21(4) to Assistant Director of Consolidation exercising its power u/s 41. An order was passed by the Assistant Director of Consolidation exercising delegated powers of the State Government. The question arose as to whether the appeal shall lie to the State Government against the order passed by the Assistant Director of Consolidation in exercise of delegated appellate power. The apex Court in the said judgement held that no appeal shall lie to the Government against the order passed by its delegate who exercised the appellate power of the State Government. Following was laid down by the apex Court in paragraph 11:
The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal u/s 21 (4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by Section 21(4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so far the Government.
The above case of the apex Court was on its own facts and has no application in the present case. In the present case Tribunal is not exercising any delegated power of appellate tribunal, right of appeal to the Tribunal against the order of Recovery Officer was consciously provided by amended Section 30. The appeal u/s 30 the Tribunal is not same thing as the appeal to the appellate Tribunal u/s 20. There are several distinctions in both the appeals including that appeal u/s 20 can be filed only against an order of Tribunal whereas the appeal u/s 30 can be filed only against an order of Recovery Officer. Against the order of Recovery Officer the appeal is not directly maintainable to the appellate Tribunal since by deletion of Section 30 as it was originally enacted the order of the Recovery Officer cannot now deemed to be order of the Tribunal. The period of limitation provided for both the appeals is also different whereas the appeal u/s 20 of the Act can be filed within 45 days and the appeal u/s 30 can be filed within thirty days.
From the scheme of the Act as noticed above it is found that both the appellate forum contemplate the different kind of appeals and neither there is any overlapping nor any conflict. Even though the tribunal passed the order u/s 30 in the appellate forum an appeal to the appellate Tribunal u/s 20 is very much available. There is no indication in the Act nor there is any provision to come to the conclusion that the orders passed by the Tribunal in exercise of appellate jurisdiction are excluded from the ambit of appeal which can be filed before the appellate Tribunal u/s 20.
The judgement of the apex Court in Union of India and Anr. v. Delhi High Court Bar Association and Anr. (supra) is not on the issue which has arisen in the present writ petition. The following observation was made in paragraph 30 of the judgement:
30....Furthermore, Section 30, after amendment by the, Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law.
Thus the above observation clearly indicate that forum of appeal to the Tribunal which has been provided against the order of Recovery Officer which is sufficient safeguard in the event the Recovery Officer acts in arbitrary or unreasonable manner.
The Division Bench judgement of Delhi High Court in Continental Construction Ltd. and Ors. v. State Bank of India and Ors. (supra) relied by the counsel for the respondents fully support the contention of the learned Counsel for the respondents The Delhi High Court has took the view that after the order of the Tribunal deciding an appeal u/s 30 the forum of appeal u/s 20 is further forum of appeal. Following was laid down in paragraphs 21 and 22:
The omission of the words "and an appeal against such order shall lie to the Appellate Tribunal" in Section 30 of the Act (as it now stands) is a necessary concomitant of the over all amendment made in 2000 to Section 30 of the Act which actually works to the advantage of a litigant in as much as it provides for an additional appellate forum. This was noticed by the Supreme Court in Union of India and Anr. v. Delhi High Court Bar Association and Ors. II (2002) SLT 552 : 96 (2002) DLT 726 (SC) : II (2002) Backward Class Union of India and Another Vs. Delhi High Court Bar Association and Others, Prior to the amendment of the Act in 2000, only one appeal was provided for against an order of the Recovery Officer, and that appeal lay tot he Appellate Tribunal; whereas since 2000, a first appeal is provided to the Tribunal and an appeal against the order of the Tribunal is provided to the Appellate Tribunal. This is a ''sufficient safeguard'' as observed by the Supreme Court in Delhi High Court Bar Association in the event of Recovery Officer acting in an arbitrary or unreasonable manner.
Learned Counsel for the petitioners then submitted, relying upon Sant Prasad v. Ashwani Prasad and Anr. ILR (1921) All 403 that since the Act did not provide for a second appeal against an order passed by the Tribunal (in the exercise of its original jurisdiction), no second appeal can be filed against an order passed by the Recovery Officer. While the general principle of law canvassed by learned Counsel for the petitioners may be true, this question does not at all arise in this writ petition for the simple reason that the Act itself provides for a second appeal against an order of the Recovery Officer. A specific right having been conferred by a statute cannot, surely, be taken away by resort to a general principle. For a similar reason, other cases relied on by the learned Counsel, such as Hari Kishen v. Amar Nath (1950) 52 PLR 13 and All Ahmed v. Roshan Das (1972) 8 DLT 429 are equally in apposite.
In view of forgoing discussions it is held that the order dated 30.11.2006 passed by the Tribunal dismissing the appeal of the petitioner filed against the order of the Recovery Officer is appealable u/s 20 of the Act. The petitioner having statutory remedy of filing an appeal against the order dated 30.11.2006 the writ petition cannot be entertained and is thus dismissed.