Ramesh Dhulatrao Gawhale vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1699

2007(3) ALL MR 275
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(NAGPUR BENCH)
B. P. DHARMADHIKARI, J.
Ramesh Dhulatrao Gawhale & Ors.- Petitioner
Versus
State of Maharashtra & Ors.- Respondent
Writ Petition Nos.599, 2159, 2345, 2390, 2429, 2556, 2580, 2684, 2882, 2961, 3004, 3062, 3063, 3079, 3112, 3212, 3387, 3796, 4165, 4236 & 4299 of 2006
Decided on 13th October, 2006.
Advocates appeared
M. V. AMALE, in W. P. No.599/2006, for Petitioner.
Learned AGP, in W. P. Nos.599, 2159, 2345, 2556, 2882, 3212, 3387,4236/2006, for Respondent Nos. 1 & 2, in W. P. Nos. 2390, 2429, 2961, 3079/2006, for Respondent No.1, in W. P. Nos.2580/2006, for Respondent Nos.1, 3 to 5, in W. P. No.2684/2006, for Respondent Nos.1, 2 & 4, in W. P. No.3004/ 2006, for Respondent Nos.1 to 6, in W. P. No.3062/ 2006, for respondent Nos.2 & 3, in W. P. No.3112/ 2006, for respondent Nos. 1 to 3, in W. P. No.3796/ 2006, for Respondent Nos.3 to 6, in W. P. NoA165/ 2006, for Respondent Nos.6 & 7, in W. P. NoA299/ 2006, for Respondent Nos. 1 ,2 & 6.
S. K. SABLE, in W. P. No.599/2oo6, for Respondent Nos.3 to 10 & in W. P. No.2684/2006, for Petitioner.
V. G. WANKHEDE, in W.P.Nos.2159, 2556 & 2882/ 2006, for Petitioner.
R. L. KHAPRE, in W. P. Nos.2159. 2566, 2684/2006, for Respondent No.3 & in W. P. Nos.3062, 4236/ 2006, for Petitioner.
C. A. JOSHI, in W. P. No.2345/2006, for Petitioners.
V. M. DESHPANDE, in W. P. No.2390/2006, for Petitioner.
V. A. KOTHALE, in W. P. No.2390/2006, for Respondent No.2.
ANIL S. MARDIKAR, in W. P. Nos.2429, 3079 & 3387/2006, for Petitioner.
O. Y. KASHID, in W. P. No.2429/2006, for Respondent No.2 & in W. P. No.3387/2006, for Respondent Nos.3 to 7.
N. P. DHOTE, in W. P. No.2580/2006, for Petitioner.
P. CHANDEKAR, in W. P. No.2580/2006, for Respondent No.2.
A. P. TATHOD, in W. P. No.2882/2006, for Respondent No.3.
N. R. BORKAR, K. S. MALOKAR, in W. P. No.2961/2006, for Petitioners.
V. K. PALIWAL, in W. P. No.2961/2006, for Respondent Nos.2 & 3 & in W. P. No.3212/2006, for Respondent Nos.3 & 4.
S. B. SOLAT, in W. P. No.3004/2006, for Petitioners.
AMOL MARDIKAR, in W. P. No.3004/2006, for respondent Nos.7 & 8, in W. P. No. 3062/2006, for Respondent Nos.1 & 4 & in W. P. No.4165/2006, for Respondent Nos. 1,2,3 & 5.
A. M. GHARE, in W. P. No.3079/2006, for Respondent Nos.2 to 4.
R. B. AGRAWAL, in W. P.Nos.3112, 3796,4165 & 4299/2006, for Petitioner.
S. G. SHUKLA, in W. P. No.3112/2006, for Respondent No.4.
M.I. KHAN, in W. P. No.3212/2006, for Petitioners.
Respondent Nos.5 & 4 Served in W. P. Nos.3212 & 4165/2006, Respectively.
LIYAKAT ALI, in W. P. No.3796/2006, for Respondent Nos.1 & 2.
S. P. KSHIRSAGAR, in W. P. No.4236/2006, for Respondent No.3.
SHAMAL KADU, in W. P. No.4299/2006, for Respondent Nos.3 to 5.

Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 91 - Bombay Money Lenders Act, 1948, Sections 13- B(1) and 13-A - Contract Act, 1872, Section 172 - Transfer or sale of agricultural fields by way of security for money lending judgments - Power of authority under Money Lenders Act - Jurisdiction of authority - Authority as result of inquiry must be satisfied under Section 13- A - Enquiry is a quasi judicial not a administrative inquiry - Petition allowed. - The decision of Registrar on the issue of valuation of such property or its identity is made final Section 13 in terms confers certain rights of Civil Court upon Registrar or authority. Section 13-A permits them to search without warrant the premises where illegal money lending business is believed to be carried. Obligation is cast upon money lender to produce documents as demanded by them and to clear doubts raised by them. The consequences of such verification or inspection or inquiry are stoppage of his activity by such money lender and also return of pledge property to the original owner/debtor.

JUDGMENT:- In all these matters challenge is to the orders passed by Taluka Assistant Registrar of Moneylenders cum Assistant Registrar of Co-operative Societies under section 13-B(1) or his report under section 13-A of Bombay Moneylenders Act 1946, hereinafter referred to as Act. . For the purposes of brevity, said officer is hereinafter referred to as Authority. By impugned orders the Authority has held that transfers or sale of agricultural fields were by way of security for money lending transactions without licence and hence those sale-deeds are found to be invalid and persons in possession have been called upon to handover the possession to the complainant/debtor or to deliver possession to the Authority itself. The challenge is on the ground of absence of jurisdiction in said Authority in all these matters. All the petitioners through their respective Counsel and also respective Counsel appearing for respondents or debtors requested the Court to hear the issue finally at admission stage itself. Learned AGPs representing said Authority and State Government in the matter however stated that in some matters instructions on facts are still awaited and they can assist the Court only on legal position. Accordingly, all matters were directed to be placed for consideration together. Then at the request of all Advocates a general notice was directed to be issued in daily cause list informing all interested Advocates about hearing of the matters and thereafter, issue of jurisdiction alone in all matters has been heard. It is admitted position that in all these cases the respective respondents have executed sale-deeds in favour of petitioners and the contention which needs to be considered is - Whether section 13-B permits Taluka Assistant Registrar of Moneylenders cum Assistant Registrar of cooperative societies i.e. Authority to deal with immovable properties and to ignore or nullify such a registered sale-deed and order the respective owners to deliver its possession back to its executors or to the Authority. In view of this admitted position as only question of law needs to be examined and section 13- B needs to be interpreted, it is not necessary for this Court to mention in detail the facts of each case. Accordingly "Rule" made returnable forthwith in all and all matters are heard finally by consent of all parties immediately. Parties have argued only on law-point.

2. For deciding the question only facts from one case need to be stated and then brief details of sale-deed and order in individual cases can be given in a chart. The facts are also required to be gathered from impugned order itself. I have selected Writ Petition 599/ 2006 for mentioning the facts because prima facie facts therein appear more in favour of respondents Nos.3 to 10 who allege to have borrowed money from petitioner. Order impugned therein is dated 2-12-2005 and all 8 respondents have sold their field properties to petitioner. All of them have deposed accordingly before respondent No.2 Assistant Registrar functioning under Bombay Moneylenders Act or Act. It is also mentioned by all of them that though they have executed and registered sale-deed in favour of petitioner, they i.e. respondents are in possession of land sold and the revenue records also continue in their names and show their possession. It is also mentioned that they have cleared entire loan but petitioner has refused to re-convey the fields. Respondent No.2 Authority has also taken on record necessary revenue records, crop statements etc. in support of their statements. It has thereafter recorded statement of petitioner who disclosed that he has purchased all fields but because he's residing away from places where those fields are situated, he has given the fields on lease for cultivation to the original owners themselves. He could not produce any written agreement of lease and he also in writing has stated that he was not aware that a public servant (Government servant) is required to obt

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