RAMESH DHULATRAO GAWHALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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 license and hence those saledeeds 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-deeds 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 even 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 obtain previous permission of appointing authority before acquiring such properties. It is important to note that petitioner is "patwari" in revenue Department of State Government of maharashtra. Respondent No. 2 has concluded that this clearly demonstrated illegal money lending transactions and therefore has passed orders directing petitioner to hand over all lands totaling to 13. 96 Hectors to it. Brief details of other Writ Petitions are as <FRM>JUDGEMENT_751_BCR1_2007Html1.htm</FRM> Petitioner objected to the Jurisdiction of Authority. Ignoring it Authority directed him to appear in inquiry. In Writ Petition 2961/2006 impugned order this dated 13/6/2006. There are two debtors and two sale-deeds. Vendor anil of first sale dated 19/7/1999 is alleged to have died on 19/6/1999. Second sale-deed is dated 25/5/1999 (unregistered) while registered sale-deed is dated 4/10/2000. The authority has submitted report under section 13-A of Act holding transactions to arise out of illegal money lending and challenge in petition is to said report. In Writ Petition 3112/2006 the petitioner is same as in 3110/2006 and he has challenged notice dated 21/4/2006 issued by Authority for appearance in inquiry to be held about field property purchased by him on 29/6/1993 from father of respondent number 4 holding it to be a money lending transaction and not deciding his objection to its jurisdiction.

(3.) ADVOCATE R. L. Khapre has addressed the Court on behalf of all petitioners with consent of all Advocates representing petitioners and his arguments were also supplemented by Advocate V. G. Wankhede, advocate Anil Mardikar, Advocate V. M. Deshpande, Advocate Z. A. Haq. Learned AGP advocate Mujumdar has advanced the main arguments to defend the orders made and action taken. Advocate Amol Mardikar and advocate V. K. Paliwal have also addressed the Court on behalf of private respondents i. e. complainants before the Taluka Assistant Registrar of moneylenders cum Assistant Registrar of co-operative societies in support of impugned orders. Other Advocates appearing respectively for petitioners or respondents have adopted the arguments or line of argument of these Advocates.