KESHAVLAL v. TALUK MAGISTRATE, RAIBAG — 1978 DIGILAW 223 (KAR)

( 1 ) IN this writ petition under Art. 226 of the Constitution, the petitioner has challenged an Order bearing No. KDR/sr-16 dated 2-5-1977 (Ext. K) of the Taluka Magistrate, Raibag, extinguishing the mortgage debt of Rs. 14,000 contracted by respondent Nos. 2 and 3 from the, petitioner and directing him to deliver possession of the lands bearing S. Nos. 448/1 an 764/1 (l/3rd share) to respondents Nos. 2 and 3. Admittedly respondent no 2 is the mother of respondent No. 3 and they are either jointly or separately the owner of the agricultural lands bearing S. No. 448/1 measuring 5 acres and 7 guntas and S. No. 764/1 measuring 4 acres and 5 guntas (l/3rd share) situated in Mugalkhod village, Ragbag Taluk, Belgaum district. At some stage, respondent No. 2 has claimed that she is the owner of these lands and at some stage she has claimed that her daughter is the owner of these lands. There is no dispute between them on the ownership of these lands and their interest is one and the same and therefore I will refer to them in the course of my order as the respondent. ( 2 ) AMONG others, the petitioner appears to be a money lender in to the village. It is the case of the respondent herself that for various domestic and other needs like the marriage of her daughter, she has borrowed various amounts from the petitioner on the security of these lands and that possession of these la,nds has at some point of time been delivered to him and that he is in possession of these lands ever since their delivery. It is her case that the petitioner has not acted according to the terms of the transactions and the matter should be enquired into by the authorises and the possession of the lands re-delivered to her. On a liberal interpretation of the case of the respondent, one can possibly slay that the petitioner is in possession of the lands as usufructuary mortgagee and the mortgage stands discharged and therefore she is entitled for the delivery of the lands from the petitioner. With these and other allegations that are not necessary to set out, the respondent addressed a petition dated 12-3-1977 to the Chief Minister, Government of Karnataka, and sent copies of that petition to the various revenue and police authorities. With these and other allegations that are not necessary to set out, the respondent addressed a petition dated 12-3-1977 to the Chief Minister, Government of Karnataka, and sent copies of that petition to the various revenue and police authorities. One such, copy was sent to the Tahsildar, Raibag. Another copy of the petition addressed to the Divisional Commissioner, Belgaum, was in due course forwarded to the Tahsildar, for action and report. On receipt of the copy of the petition addressed to him, the Tahsildar, Raibag, (hereinafter referred to as 'the tahsildar'), on 25-3-1977 directed one of his Revenue Inspectors; to make an immediate enquiry and report marking the same as 'confidential. ' On the very next day one Shri Ramachandra Naika Patil who is stated to be a relative of respondent No. 2 and also claims to be her power of attorney holder at a later stage of the proceedings, appeared before the Tahsildar and made a statement inter alia stating that the respondent had borrowed a sum of Rs. 4,000 from the petitioner and that though she was ready and willing to pay that amount, the petitioner was not willing to receive the same and deliver possession of the lands and therefore requested the Tahsildar to obtain possession of the lands from the petitioner and deliver them to the respondent. On, the same day, the Tahsildar evidently on the basis of the statement made by Shri Ramachandra Naika Patil issued a notice to the petitioner calling upon him to appear on 31-3-1977 at 11-00 a. M. and furnish his replies before him. In pursuance of that notice, in petitioner appeared, before the Tahsildar and inter-alia stated that the respondent had, borrowed a sum of Rs. 14,000 and that when she was unable to pay she agreed to sell the same for a sum of Rs. 30,000 and towards the sale price a sum of Rs. 17,000 has been paid and the balance of rs. 13,000 had been agreed to be paid to the respondent at the time of execution of the sale deed, He denied that he was in possession of the lands as a mortgagee. After recording the statement of the petitioner and another statement of Shri Ramachandra Naika Patil on the same day evidently without affording either of the parties to cross-examine the other and test the veracity of their respecive statements, the Tahsildar adjourned the case. After recording the statement of the petitioner and another statement of Shri Ramachandra Naika Patil on the same day evidently without affording either of the parties to cross-examine the other and test the veracity of their respecive statements, the Tahsildar adjourned the case. On 15-4-1977 the parties appeared to have appeared and produced certain documents in support of their respective cases. The case appears to have been set down for hearing on 26-4-1977 on which day it appears to have been adjourned at the request of the petitioner. On 27-4-1977 the petitioner presented a petition (Ex. F.) complaining that the Tahsildar was demanding a sum of Rs. 5,000 'to decide the case in his favour which he was not willing to comply and therefore requested him to transfer the case to any other officer. Evidently on that petition the divisional Commissioner on the same day wrote a letter to the Tahsildar (Exhibit G) to submit the papers tc his office to consider the request of the petitioner for transfer. That letter reads thus:-"no. RB. RTS. AP. 1/77. Belgaum, dt. 27-4-1977. To, the Tahsildar, raibag, Dist. Belgaum. Sub:-Transfer of R. T. S. Case No. RTS. SR. pending on the file of the Tahsildar, Raibag, in respect of Shri Keshav Bhaichand saha of Mugulkhod Taluka: Raibag. You are requested to submit the papers of the case on the subject cited above immediately, duly paged and indexed to consider the request of the petitioner to transfer the case from the file of the tahsildar to some other competent officer. As ordered sd/- 27-4-77 by Divl. For Divisional Commissioner, commr. Belgaum. "the Tahsildar in his report dated 2-7-1978 admits that the letter dated 27-4-1977 was received by him on 30-4-1977 and the same has been replied though a copy of the reply addressed by him is not furnished to this court. From the records received from the office of the Divisional Commissioner, belgaum, it is seen that the Tahsildar in his letter dated 30-4-1977 addressed to the Divisional Commissioner sought his instructions as to whether the papers should be sent to him. The Divisional Commissioner says that this letter was leceived by him on 3-5-1977. But very strangely, the Tahrildar, without waiting for a, replly from the Divisional Commissioner, passed the impugned order on 2-5-1977 which has been challenged by the petitioner before this Court on 9-5-1977. The Divisional Commissioner says that this letter was leceived by him on 3-5-1977. But very strangely, the Tahrildar, without waiting for a, replly from the Divisional Commissioner, passed the impugned order on 2-5-1977 which has been challenged by the petitioner before this Court on 9-5-1977. On the same day, Srinivasa iyengar, J. , as the Vacation Judge, issued rule-nisi and has stayed the operation of the impugned order. ( 3 ) IN this writ petition, the petitioner while alluding to the various facts noticed by me earlier, has referred to a compromise entered into between him and respondent Nos. 2 and 3 on 14-9-1976 which is evidenced by a deed oif that date. He has averred that on 29-9-1976 respondent Nos. 2 and 3 have executed an agreement to sell in Marati language and has produced a translation of the same in Kannada, (Ext. 'c') and the original has been produced before the Tahsildar. It is his case that in pursuance of the agreement to sell, he is in possession, of the lands and therefore thr provisions of the Karnataka Debt Relief Act of 1976 (hereinafter referred to as 'the 1976 Act') have no application. Lastly the petitioner has averred that the Tahsildar Taluka Executive Magistrate-respondent No. 1 demanded rs. 5,000 as illegal gratification to decide the case in his favour and therefore he approached the Divisqinal Commissioner for transfer of the case to the file of any other officer. ( 4 ) UNFORTUNATELY respondent No. 1 against whom very serious allegations of demanding illegal gratification are made, has not entered appearance and has not even filed a formal denial before this Court. ( 5 ) IN a common statement of objections filed on 22-8-1977, respondent nos. 2 and 3 admit that possession of the lands has been delivered to the petitioner and execution of the compromise petition as also the agreement to sell. But they contend they are debtors within the meaning of that expression occurring in the 1976 Act and therefore the relief granted to them by the Tahsildar is correct and valid. Lastly respondent Nos. 2 and 3 contend that the Tahsildar while functioning as the Taluka, Executive Magistrate under 1976 Act is not sub-ordinate to the Division Commissioner and the transfer proceedings initiated before him is without jurisdiction and therefore the decision rendered, by the Tahsildar is legal and valid. Lastly respondent Nos. 2 and 3 contend that the Tahsildar while functioning as the Taluka, Executive Magistrate under 1976 Act is not sub-ordinate to the Division Commissioner and the transfer proceedings initiated before him is without jurisdiction and therefore the decision rendered, by the Tahsildar is legal and valid. ( 6 ) SHRI Jayakumar Patil, learned counsel for the petitioner, at the forefront contended that the petitioner was in occupation of the lands under an agreement to sell and not under any subsisting mortgage and therefore the Tahsildar had no jurisdiction to grant any relief under the 1976 Act to the respondent Elaborating his contention, Shri Jayakumar patil pointed out that the respondent had admitted the execution of the agreement to sell and the terms thereof and the remedy if any of the respondent either to invalidate that agreement or to recover possession from the petitioner can be resorted to only in an ordinary Civil Court and the tahsildar had no jurisdiction and power to construe that as a mortgage or a debt and grant any relief to the respondent under the 1976 Act. Shri g. D. Shirgurkar, learned counsel for the respondent, refuted the contention of Shri Jayakumar Patil and contended that in reality the transaction was mortgage and therefore the Tahsildar was competent to grant relief under the 1976 Act. ( 7 ) THE original agreement dated 29-9-1976 is in Marathi language. From the official translation of that document, it is seen that the respondent has agreed to sell the lands in dispute for a consideration of Rs. 30,000 receiving a sum of Rs. 17,000 as advance. The respondent ha further agreed to receive the balance of sale price at the time of the execution of the sale deed. In the proceedings before the Tahsildar, the respondent does not deny the execution of that agreement or the terms thereof. In the statement of objections filed before this Court also, the respondent does not deny the execution of the document. But she pleads that this document has been executed to defeat the provisions of the 1976 Act. In the proceedings before the Tahsildar, the respondent does not deny the execution of that agreement or the terms thereof. In the statement of objections filed before this Court also, the respondent does not deny the execution of the document. But she pleads that this document has been executed to defeat the provisions of the 1976 Act. Even assuming that to be so, the question is whether an authority under the 1976 Act can examine such a question and grant any relief to the respondent, An examination of the provisions of the 1976 Act woiuld show that ar authority functioning under the Act with limited jurisdiction of granting relife to debtors which term is defined in S. 3 (c) of the 1976 Act, does not confer the power of examining the validity of an agreement to sell or its terms thereof and grant any relief whatever may be the validity or otherwise of such an agreement to sell. In this view, I uphold the contention, of Shri Jayakumar Patil and hold that the Tahsildar committed an error of jurisdiction in granting relief to the respondent. ( 8 ) SHRI Jayakumar Patil next contended that even assuming that the 1976 Act was applicable, the respondent was not a debtor within the meaning of tha,t Act occurring in S. 3 (c) of the 1976 Act and therefore the tahsildar had no jurisdiction to grant relief to the respondent. Elaboratin his contention, Shri Jayakumar Patil pointed out that the respondent had nowhere claimed that she was a debtor within the meaning of that term and there was no evidence to hold that she was a debtor. Shri Shirgurkar while refuting the contention of Shri Jayakumar Patil contended that the tahsildar could suo motu decide whether a person is a debtor or not and therefore the finding recorded by the Tahsildar that the respondent was a debtor is valid. ( 9 ) IN her application to the Chief Minister, the respondent does not assert that she was a debtor within the meaning of that term occurring in s. 3 (c) of the 1976 Act. In that application, she seems to complain of many matters that do not really fall within the purview of the 1976 Act. At one stage, she has even pleaded before the Tahsildar that she was due in a sum of Rs. In that application, she seems to complain of many matters that do not really fall within the purview of the 1976 Act. At one stage, she has even pleaded before the Tahsildar that she was due in a sum of Rs. 4,000 and that she was ready and willing to pay the sum, but the petitioner is not ready and willing to receive that amount and deliver the lands. In no other application or any other statement before the tahsildar, the respondent has claimed that she was a debtor withih the meaning of that term occurring in S. 3 (c) of the 1976 Act. Apart from this there is no evidence, to hold that the respondent is a debtor. Under the 1976 Act, relief can be granted to a person only if he is a debtor within the meaning of the term occurring in S. 3 (c) and not to all debtors. In my opinion, the contention of Shri Jayakumar Patil that the respondent is not a debtor and therefore the Tahsildar committed an error of jurisdiction in granting relief under the 1976 Act is well founded. ( 10 ) SHRI Jayakumar Patil lastly contended that the decision rendered by the Tahsildar on 2-5-1977 in disregard of the directions dated 27-4-1977 of the Divisional Commissioner is invalid. Shri Jayakumar Patil maintained that when the Divisional Commissioner on a complaint made by the petitioner had directed him to submit the records to consider the request of the petitioner for transfer of the case to the file of some other officer, the Tahsildar should not have considered the application of the respondent and decided the same. In refuting this contention, Shri Shirgurkar maintained that the Tahsildar while functioning as the Taluka Executive magistrate under the 1976 Act was not subordinate; to the Divisional commissioner and therefore the direction issued by him on 27-4-1977 has to be treated as non-est and the Tahsildar was well within his power in disregarding the same and deciding the matter on 2-5-1977. ( 11 ) EARLIER I have pointed out that that the letter dated 27-4-1977 had been received by the Tahsildar on 30-4-1977. I will also assume that the tahsildar while functioning as the Taluka Executive Magistrate under the 1976 Act is, not subordinate to the Divisional Commissioner. But the question is whether the Tahsildar acted properly in disregarding the directions of the Divisional Commissioner. I will also assume that the tahsildar while functioning as the Taluka Executive Magistrate under the 1976 Act is, not subordinate to the Divisional Commissioner. But the question is whether the Tahsildar acted properly in disregarding the directions of the Divisional Commissioner. A Tahsildar is the lowest Gazetted revenue Officer in the revenue administration of the State. He is the head of the Revenue Division. As the Head of the Revenue Division he has undoubtedly the responsibility to see that all revenue officers working in his Division act, properly and do not give room to any kind, of complaint by any body and remedy their complaints if the same does not transgress any law. In this case, the petitioner had made a complaint, As to whether that complaint was well founded or not is a matter entirely for the Divisional commissioner to decide. In order to decide that complaint, the divisional Commissioner, in my opinion rightly, called upon the Tahsildar to submit the records to his office. As an officer subordinate to the Divisional commissioner, it was the plain duty of the Tahsildar to have implicitly obeyed the directions of the Divisionol Commissioner and submit the records as directed by him without concerning himself as to whether the divisional Commissioner has the power of transferring a case from his file to another officer's file or not. In my opinion, the Tahsildar having received the letter dated 27-4-1977 of the Divisional Commissioner on 30-4-1977 and having submitted a reply as noticed by me earlier acted improperly in, deciding the case on 2-5-1977. In the view I have taken on the first two contentions of the petitioner, I do not consider it necessary to pursue this matter and decide whether the order is invalid on this ground. ( 12 ) IN the light of my above discussion, I hold that the impugned order of respondent No. 1.-Taluka Executive Magistrate, Raibag, suffers from errors of jurisdiction and illegalities and has occasioned failure of justice to the petitioner and is therefore liable to be quashed, I, therefore, quash the impugned order by issue of a writ of certiorari. ( 13 ) RULE made absolute. Petitioner is entitled to his costs. Advocate's fee Rs. 100. --- *** --- .