BAIKUNTH MANDAL Vs. SUNDAR MANDAL

JUDGEMENT

(1.) Which is the appropriate forum for the exercise of jurisdiction for redemption of usufructuary mortgages under Section 12 of the Bihar Money Lenders Act, 1974, has ultimately come to be the core question in this reference to the Full Bench.

(2.) The facts would now deserve notice only within the narrow confines of their relevance to the primal issue aforesaid. The proceedings stem from a mortgage executed way back on the 15th of June, 1900, made by Rano wife of Fakira Mandat in favour of Banwari Mandal, predecessor-in-interest of writ petitioners 1 to 4. It is the common case that respondents 1 to 5 preferred an application under Section 12 of the said Act before the Anchal Adhikari, Sultanganj, claiming that the mortgage stood wholly redeemed on the expiry of a period of seven years from the date of its execution, and, therefore, prayed for the restitution of possession to them. It would appear that the Anchal Adhikari issued notice in the mutter to the opposite party and fixed 17th December, 1975, for hearing, and on the said date without giving any opportunity to the opposite party to file any rejoinder or lead evidence of produce documents, he heard the parties and ordered that the land should be restored to respondents 1 to 5. Somewhat curiously he thereafter ordered that the record of the case be sent to the Land Reforms Deputy Collector for approval. The writ petitioners thereafter appeared before the Land Reforms Deputy Collector and produced numerous documents before him. But on the 26th of May, 1976, he proceeded to pass a cryptic order stating that he affirmed the order of the Anchal Adhihari, Aggrieved thereby, the writ petitioners on the basis of erroneous legal advice preferred an appeal before the Additional Collector, Ehagalpur, who, however, merely filed the same on the ground that he was not entitled to hear it and the Collector of the district was only competent to do so. The writ petitioners then preferred a revision before the Collector, Bhagalpur (vide Annexure 4), who proceeded to summarily reject the same on the ground that it had not been presented within 30 days from the date of the order. Pushed from pillar to post, the writ petitioners preferred another revision in the Court of the Commissioner, Bhagalpur Division, who again rejected it on the ground of limitation holding that no adequate reason for taking shelter under Section 5 of the Limitation Act arose.

(3.) Learned counsel for the writ petitioners whilst ignoring the ancillary issue of condonation of the alleged delay has rightly pressed the focal point that the entire proceedings initiated before the Anchal Adhikari and his recommendation to the Land Reforms Deputy Collector for approval were void ab initio being wholly without jurisdiction