ATTADA AMMAYAMMA Vs. TAHSILDAR TEKKAII

JUDGEMENT

(1.) Arising out of common facts and law, these two writ petitions can be disposed of by a common judgment. It would be enough to advert to the facts in the writ petition No. 6341 of 1979 in order to appreciate the common question of law arising in both the writ petitions. Respondents 3 and 4 filed a petition under section 6 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act 1977 (Act 7 of 1977) before the Tahsildar, Tekkali, alleging inter alia that they have pledged gold ornaments viz., one gold chain (pustula thadu) weighing three tolas and four kasulu weighing two tolas in total five tolas, for securing a loan of Rs. 700/-. It is also alleged that they have discharged the loan with interest, but the petitioner has not delivered the gold ornaments to the respondents. Therefore, an application was filed under sec. 6 of the Act 7 of 1977 for the return of the jewellery alleged to have been pledged with the petitioner in the writ petition. The petitioner contested the application saying that the jewels were never pledged with her, and the allegations of pledge and loan were false, which have been invented in view of the pre-existing enmity between the parties. The petitioner also tried to adduce some documentary evidence before the Tahsildar to show the strained relations between her and the respondents. In the order passed by the Tahsildar, Tekkali in Rc. 8053/78-B3, dated: 10th March 1979, it is stated that the debtor - petitioner filed a petition under sec. 6 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (Act 7 of 1977) for the issue of an order of releasing the mortgaged moveable property ie., gold ornaments, and handing over possession of the said gold ornaments. It is also stated that the respondents denied the pledge and other allegations of the petition, end stated that it is due to pre-existing enmity between the petitioners and the respondent, they have foisted a case against her. Affer an enquiry held by the Tahsildar, he came to the conclusion that the petitioners were entitled to the relief as provided under sec. 4(1) of the Act 7 of 1977 and passed an order u/s. 6 of the Act to effect that the respondent shall deliver forthwith the gold ornaments to the petitioners under proper acknowledgement, and she is not entitled to the balance of amount, if any, outstanding against the debt, as the debt including interest is deemed is have been wholly discharged under Sec. 4(1) of the Act An appeal was filed against the said order before the Sub-Collector Tekkali under Sec. 7 of the Act The appellate authority confirmed the ordar of the Tahsildar stating that there are no valid grounds to interfere with the orders passed by the Tahsildar in Re. 8053/78 B3 dated : 10-3-79, and accordingly the appeal is dismissed.

(2.) A perusal of Section 6 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977, clearly shows that a debtor referred to in clause (d) of subsection (3) of section 4 may make an application to the Tribunal having jurisdiction over the area for an order releasing the mortgaged property and for the grant of a certificate of redemption. In Sec. 4 Sub-sec. (3) (b) it is provided that every mortgage executed by such debtor in favour of the creditor shall stand redeemed and mortgaged property shall be released in favour of such debtor. The provisions of Sec. 6 are crystal clear on the point that thay deal with the question of mortgaged property and the grant of a certificate of redemption by the Tribunal in case the Tribunal comes to the conclusion that the debtor is entitled to the relief as prayed for under the provisions of the Act. The question of pledge of moveable properties is not covered under sec. 6 of the Act 7 of 1977. The relevant section dealing with the question of pledge of moveable properties is section 5 of the Act 7 of 1977 which provides inter alia that a debtor referred to in clause (a) of sub-section (3) of Section 4 may make an application to the Tribunal having jurisdiction over the area wbere his creditor has his ordinary place of business for an order for the delivery of the movable property pledged by the debtor. Hence, a reference to Section 4 sub-section (3) (a) will not be out of place here to show that the question of pledge is dealt with under the said section along with section 5 of Act 7 of 1977 and cannot be a subject matter of any dispute uner Sec. 6 of the Act 7 of 1977 which deals exclusively with the question of mortgage of property and the grant of a certificate of redemption under that section. Therefore, the correct provisions of law under which the jurisdiction of the Tribunal can be invoked in a matter where it is alleged that certain jewellery has been pledged with petitioner is section 5 of the Act. It may be further stated that in sec. 5 of the Act a regular procedure also has been provided in accordance with which the Tribunal has to proceed for the determination of a dispute arising with regard to a pledge of movable property between the parties concerned. It is stated that when an application is received from a debtor referred to in clause (a) sub-section (3) of section 4, the Tribunal shall determine whether the debtor is entitled to a relief under sec. 4 of the Act which means that it will have to be determined whether the debtor in question is a small farmer or not whose debt including interest if any owing to any creditor can be deemed to have been wholly discharged. Thereafter the Tribunal can direct the creditor to produce before the date specified in the order the movable property pledged by the said person or the debtor. It is, therefore, evident that great emphasis has been laid in the section over the production of the movable property pledged by the debtor, and the creditor is directed to produce the same on a particular date specified in the order. Assuming that the creditor fails to produce the movable property as directed in the order referred to under sub-sec. (3) of the Act, the Tribunal has been invested with the jurisdiction to enter into the premises of the creditor or of the transferee of the creditor and search and seize the said property under sec. 5 (5). There are other provisions in sec. 5 dealing with the question of the property being in possession of the Bank or in the possession of a transferee of the creditor etc with which we are not concerned in this writ petition. However, the point is clear as laid down in section 5 (6) of the Act that after such production or recovery or deposit of the movable property pledged, the Tribunal shall deliver the said property to the debtor. It is therefore, obvious that the correct section which deals with the question of pledges of movable properties in the hands of the creditor is section 5 of the Act, and the Tribunal which invested with the jurisdiction under sec. 5 has necessarily to comply with the procedure which has been laid down in that section. The emphasis in that section is very much on the production or recovery of the article pledged, and it is only after such requirement of either production or recovery is fulfilled, that order can be made by the Tribunal about the delivery of the same to the debtor. A reading of the orders of both the Tribunal, i.e., Tahsildar as well as the Appellate Authority reveal the fact that orders have been passed under Sec. 6 of the Act 7 of 1977 which has nothing to do with the question of pledge of an article with the creditors. Moreover, the order of delivery has been passed without complying with the procedure laid in Sec. 5, and it is ordered that the article pledged may be delivered forthwith to the respondents herein under proper acknowledgement. This order is clearly without jurisdiction, and therefore, deserves to be quashed. A writ of certiorari will therefore issue quashing the order of the Appellate authority in D.R.A. 1/69 dated 5th July, 1979 and the order of the Tahsildar, Tekkali in Re. No. 8053/78,-B3 dated 10-3-1979 in the Writ Petition No. 6341 of 1979; and the order of the Appellate Authority in D.R.A. No. 2/79 dated 5th July, 1979 and the order of the Tahsildar, Tekkali in Rc. No. 8053/ 78,-B3 dated 10-3-1979 in the Writ Petition No. 6342 of 1979.

(3.) The writ petitions are allowed, but in the circumstances of the case, there will be no order as to costs. Advocate's fee Rs. 100/- in each.