THAKKAR JETHALAL BHIKHALAL Vs. BAO MANGLA RATANLAL PARSHOTAM

JUDGEMENT

(1.) This petition under Art. 227 of the Constitution of India is preferred by a partnership firm named M/s. Thakkar Jethalal Bhikhabhai, carrying on business at Petlad, Distt.: Kheda, for quashing and setting aside the orders at Annexs. A & B passed by two authorities in the matter relating to the provisions of Gujarat Rural Debtors Relief Act, 1976 (hereinafter referred to as the said "Act"). Order at Annex. A is the order dated 15.11.1987 passed by the Debt Settlement Officer & Registrar, Co.Op Societies, District Kheda at Nadiad (hereinafter referred to as "DSO"). Order Annex. B is of April, 1987 which came to be intimated to the petitioner vide communication dated 25.2.1987, passed by the District Registrar, Co-Op. Societies & Appellate Officer, Nadiad.

(2.) Respondent Nos. 1, 2A to 2C and Respondent No. 3 to 5 claimed that they are "small farmers" of joint family as defined under the provisions of the said Act. According to the petitioners, Respondents filed an application before the Debt Settlement Officer for scaling down the debt under the provisions of the said Act. Respondent No. 6 is one of the creditors against whom a simultaneous prayer to scale down debt was made before the DSO. Application to scale down the debt was filed by Respondents Nos. 1 to 5 on 30.11.1976, wherein it was contended that they are indebted to the petitioners and other persons and therefore, entire debt against the persons mentioned in the original application should be scaled down as Respondent Nos. 1 to 5 are the "small farmers" within the meaning of the Act. After service of notice, the petitioners filed written objections to the application on 1.3.1978 and after hearing the parties and considering the evidence led, DSO, vide his order dated 27.3.1979, held that Respondent Nos. 1 to 5 are not the "small farmers" and further held that debt referred to in the application by the applicants is the business debt incurred due to supply of business material by the traders. All the respondents constitute joint family and joint family owned unirrigated land to the extent of A-6-30 Gunthas. For the aforesaid reasons, application came to be dismissed. Feeling aggrieved by the said order, Respondent Nos. 1 to 5 preferred an appeal before the appellate officer appointed under the provisions of the said Act and in the said appeal, Appellate Officer held that bai Mangal Respondent No. 1 and other respondents were not "small farmers" and, therefore, they are not entitled to any relief by way of settlement of debt. In short, the appellate officer confirmed the order passed by the DSO on 27.3.1979. Respondent Nos. 1 to 5, feeling aggrieved by two concurrent findings against them given by both the authorities, preferred writ petition being Special Civil Application No. 3411/79 wherein it was contended that they were not given an opportunity of cross-examining the witnesses and that they were not properly heard when the matter came up for hearing. While allowing the petition, vide oral judgment and order dated 7.10.1982, this Court passed the following order : "for the reasons stated in the oral judgment, the Court allows the petition, quashes and sets aside the order passed by the Debt Settlement Officer at Annex. A and the order passed by the Appellate Officer at Annex, B and remanding the matter back to the Debt Settlement Officer at Nadiad with a direction to decide the application filed by the petitioners afresh after hearing both the sides and keeping in view the observations made in this judgment."

(3.) It is contended by the petitioner that despite the repeated requests made by the petitioners, matter was not heard by the DSO on remand for a pretty long time and ultimately, matter was heard on 22nd December, 1986 i.e. after 4 years. It is averred that the petitioners obtained a decree of a Competent Court against the respondents and they had filed execution petition, but execution petition was not heard because of the pendency of the application before the DSO considering the provisions of the Act. Considering the oral as well as documentary evidence led by the original applicants (respondent Nos. 1 to 5 herein), it transpires that the applicants have tried to establish that on the "appointed date", they were "small farmers" and were holding unirrigated agricultural lands admeasuring A-4-24 Gunthas. It was specifically pleaded that the lands of survey No. 202 admeasuring about A-1-06 Gunthas were mortgaged with a third person and, therefore, in reality, the actual holding of respondent Nos. 1 to 5 was A-3-80 Gunthas. The DSO held that respondent Nos. 1 to 5 were "small farmers" and even if it is accepted that the lands owned and possessed by them were irrigated by well water, it cannot be held to be an irrigated land. The plea of the defendants that debt accrued because of supply of business material to respondent Nos. 1 to 5, was not accepted by the DSO. The order passed by the DSO was challenged by the petitioners before the appellate officer by filing appeal and after hearing both the parties in the said appeal , the appellate officer, vide order dated nil-April, 1987 (Annex.B), confirmed the order passed by the DSO on 15.1.1987 (Annex. A) and which order of the appellate officer came to be served to the petitioners vide communication dated 25.4.1987. Feeling aggrieved by both the orders as aforesaid which came to be passed after the order of remand referred earlier by this Court in Spl. Civil Application No. 3411/1979, the petitioners have preferred present petition challenging the said orders.