KAILASH PATI SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ application under Articles 226 and 227 of the Constitution of India has been filed on behalf of the petitioner for quashing a notice, dated the 30th September, 1975, issued to the petitioner by the respondent Deputy Collector Incharge Land Reforms, Dinapur (hereinafter referred to as the 'D.C.LR.'), in purported exercise of powers conferred on him under Section 12 of the Bihar Money-Lenders Act, 1974 (hereinafter referred to as the 'Act'), read with Rule 10 (3) of the Bihar Money-Lenders Rules, 1975 (hereinafter referred to as the 'Rules') directing the petitioner to show cause by the 6th October, 1975, as to why respondent No. 3 should not be put in possession of the lands which had been mortgaged in favour of the petitioner. A copy of the said notice is Annexure '2' to the writ application.

(2.) On the 29th October, 1975, a rule was issued by this Court to the respondents to show cause and it was ordered that, during the pendency of the writ application, further proceedings before the respondent D.C.L.R, shall remain stayed.

(3.) According to the petitioner, the father of respondent No. 3 required money as loan from the petitioner, who is a registered money-lender, and the petitioner advanced a loan of Rs. 2,000 and the father of respondent No. 3 executed a usufructuary mortgage bond in favour of the petitioner and put the petitioner in possession of the mortgaged lands, fully described in the deed of mortgage, dated the 27th June, 1967. Under the terms of the mortgage, the petitioner was entitled to appropriate the usufruct of the lands mortgaged, in lieu of interest on the amount advanced. In accordance with the provisions of the Transfer of Property Act, 1882, the petitioner was entitled to remain in possession of the said lands till the mortgage was redeemed by payment of the principal amount of the loan advanced, and, in case the mortgagor failed to redeem the mortgage within the period of thirty years, as prescribed by the Indian Limitation Act, 1963, the right of redemption was to stand extinguished. However, the Bihar Money-Lenders Act was enacted in the year 1974, and Section 12 of this Act has made a provision that a usufructuary mortgage relating to any agricultural land, whether executed be- fore or after the commencement of this Act, shell be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execution of the mortgage bond and thereafter the mortgagor shall be entitled to recover possession of the mortgaged land in accordance with the procedure prescribed by the Rules, On an application made by respondent No. 3, the respondent D.C.L.R. has issued the impugned notice, which, according to the petitioner, is without any authority in law, inasmuch as Section 12 of the Act is ultra vires and the rules framed under the Act are of no effect, because the procedure prescribed under Sub-section (3) of Section 47 of the Act regarding framing of the rules has not been complied with.