MANDEO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Going beyond the apparent nature of the transaction of sale of agricultural land, and Authorised Officer (respondent No. 2) under the Maharashtra Debt Relief Act, 1975 (The Act" for short) held after enquiry that it was in reality a transaction of debt and ordered restoration of the property as according to him the debt was liquidated. Being aggrieved by this order, dated 7th November, 1977 (Exhibit 'A') the present petition has been filed.

(2.) During the course of hearing of this petition, a sort of preliminary point was raised by Shri Naik, the learned Counsel for the petitioner, that the Authorised Officer had no jurisdiction under the Act to go beyond the document and to consider the evidence about real nature thereof. In support of this submission, he invited our attention to the following observations in a Division Bench decision of this Court in Punamchand case, 1978 Mh LR 158 : "If the transaction is expressed in the form of a sale deed we do not understand how the Tahsildar acting under the provisions of t he Debt Relief Act can go beyond the document and adjudicate that transaction appears to be one of mortgage. The provisions of the Maharashtra Debt Relief Act, 1975, do not include any section which permits the Authorised Officer to go beyond the transaction and find out the real nature thereof. The Legislature was fully aware of the laws passed by itself in the past, viz. Deccan Agriculturists Relief Act, 1902, as well as the Bombay Agricultural Debtors Relief Act. Both these Acts included provisions which permitted allegations to be made that a transaction of sale was in fact a transaction of loan or mortgage and when such allegations were made notwithstanding the provisions of the Evidence Act or any other Act for the time being in force, it was permissible to lead evidence and it was obligatory upon the Court to weigh that evidence and hold whether the alleged transaction of sale was in fact a transaction of loan or mortgage. When we look at the Maharashtra Debt Relief Act no such provision is to be found. ................A debt has been specifically defined as a liability either in cash or kind which is outstanding on the appointed day, viz. 22nd August, 1975. In the absence of any provision as mentioned above, the debt under the Maharashtra Debt Relief Act, 1975 has got to be a debt which obvious and is beyond doubt. In any case it must have an appearance of a debt and it is entirely against the provisions of the Act to adjudicate whether a transaction of a sale is a mortgage at all." It appears that this decision has been followed by the Single Bench of this Court in Voltas Limited v. Central Stores, 1980 Mh LJ 559.

(3.) Shri Deshmukh, the learned Counsel for the Respondents Nos. 3 and 4, brought to our notice subsequent Division Bench decision of this Court in the case of Tukaram Ramchandra Mirgal v. Shankar Krishnaji Dabholkar and others, 1982 Mh LJ 754, which has proceeded on the assumption that an Authorised Officer does have jurisdiction to adjudicate upon the real nature of the transaction. Our attention was also invited to Chapter V-A introduced in the Act by Maharashtra Act No. 18 of 1979 dealing with the adjustment of debts of certain class of farmers and workers in which a provision almost similar to the one in the Bombay Agricultural Debtors' Relief Act, permitting allegations about real nature of transactions, exists. He also submitted that the view taken in Punachand's case defeats the very purpose of the Act, viz. to give instant relief to the comparatively weaker section of the society which has no capacity to have a costly and long drawn battle in Civil Court with mighty money lenders. According to Shri Deshmukh a somewhat anomalous situation about the correct position in law exists and the decision in Punamchand's case needs reconsideration and hence authorative pronouncement by a larger Bench on this point of public importance is necessary in the interest of certainty of law. Having given our considered thought to the points presented, it seems to us that the submissions have considerable force.