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1985 DIGILAW 340 (PAT)

Dinesh Singh v. State of Bihar

1985-12-04

HARI LAL AGRAWAL, S.N.JHA

body1985
JUDGMENT : Hari Lal Agrawal, J. - At the admission stage itself we have heard the learned Advocates for the parties at full length and with their consent we are disposing of this application at this very stage. 2. The question involved in this case is a pure question of law, as to whether the Anchal Adhikari (respondent no. 3) who passed the impugned ORDER :(Annexure-1) exercising the powers under section 12 of the Bihar Money Lenders Act read with the rules framed there-under, can be said to be 'collector' within the meaning of section 2(b) of the Act or not? 3. The petitioner had advanced loans on the basis of registered Zarpeshgi deed to respondent no. 4 in respect of 2 kathas 10 dhurs of his land situated -in Ramgarhwa Anchal. After the expiry of the period of seven years from the date of the mortgage, respondent no. 4 applied before respondent no. 3 for delivery of possession of the land to him, which has been allowed by the ORDER :(Annexure 1) and the appeal therefrom was dismissed by respondent no. 2 by his ORDER :contained in Annexure 2. 4. The argument is based upon the observation made by a recent Full Bench decision of this Court in Baikunth Mandal and others v. Sunder Mandal and others 1985 B.L.J.R. 133: 1984 PLJR 509 ), In that case an application under section 12 of the Act claiming that the mortgage stood wholly redeemed on the expiry of the period of seven years from the date of its execution, was filed before the Anchal Adhikari, Sultanganj, who ORDER :ed restoration of possession of the land in question to respondents 1 to 5. The matter was taken before the appellate and revisional authorities by the mortgagee and thereafter ultimately the matter was brought to this Court in the writ jurisdiction and it was contended that the proceeding initiated by respondents 1 to 5 was void ab initio from the very inception inasmuch as the Anchal Adhikari was not a 'collector' within the meaning of the Act. 5. Before coming to the question I may refer to some of the relevant provisions of the Act. 5. Before coming to the question I may refer to some of the relevant provisions of the Act. The expressions 'Anchal Adhikari' and 'Collector' have been defined in clauses (a) and (b) of section 2 in the following terms; "(a) 'Anchal Adhikari' means an Officer appointed as such by the State Government; (b) Collector includes an Additional Collector or Additional Deputy Commissioner and any other officer not below the rank of a Deputy Collector specially empowered by the State Government to discharge all or any of the functions of a Collector under this Act." Section 12 of the Act deals with automatic• redemption of the 'usufructuary mortages' relating to agricultural lands after the expiry of a period of seven years from the date of the execution of the mortgage bond and the mortgagor has been made entitled to recover possession in the prescribed manner under the Rules. The procedure for filing application by the mortgagor to eject the mortgagee in case of the latter's failure to put the mortgagor in possession, has been prescribed, according to which the mortgagor "shall file an application in Form M.L. 5 to the Collector within whose jurisdiction the mortgaged property or any part thereof is situated, to eject the mortgagee from the mortgaged property." 6. Before the Full Bench a notification dated the 27th September, 1975 only appears to have been filed which reads as follows: "G.S.R. 87:- In exercise of the powers conferred by clause (b) of section 2 of the Bihar Money Lenders Act, 1974 (Bihar Act XXII of 1975) the Governor of Bihar is hereby pleased to appoint all Land Reforms Deputy Collector to exercise the powers of Collector under sub-section. (3) of section 7, section 12 and section 33 of the Act within the local limits of their respective Jurisdiction." Obviously, on the above notification which empowered the Land Reforms Deputy Collector to exercise, the powers of the Collector under sections 7, 12 and 33 of the Act and did not so authorise the Anchal Adhikaris, the Full Bench had got to hold that the application by the respondents 1 to 5 of that case before the Anchal Adhikari, Sultanganj, and the ORDER :passed by him were without any warrant of law. 7. Another notification dated 11th April, 1977, has, however, been brought to our notice which reads as follows : "G. S. R. 21 dated 11th April, 1977. 7. Another notification dated 11th April, 1977, has, however, been brought to our notice which reads as follows : "G. S. R. 21 dated 11th April, 1977. - In exercise of the powers conferred by clause (a) of section 2 of the Bihar Money-Lenders Act. 1974 (Bihar Act 22 of 1975) the Governor of Bihar is hereby pleased to appoint all Anchal Adhikaris to exercise the powers and functions contained in section 12 of the Act within the local limits of their respective jurisdiction." This notification appears to have not been brought to the notice of the Full Bench, which in unambiguous words empowers all the Anchal Adhikaris to exercise the powers and functions under section 12 of the Act within their respective local limits. Section 2(b) defining 'Collector' itself provides that apart from the authorities specifically mentioned therein, the State Government may specially empower any other officer not below the rank of a Deputy Collector to discharge all or any of the functions of a Collector under this Act. The question that Anchal Adhikaris in the State of Bihar are not below the rank of a Deputy Collector is a non-issue and, therefore, the respondent Anchal Adhikari who entertained the application of respondent no. 4 and passed the impugned ORDER :cannot be said to be authority incompetent to exercise the powers under section 12 of the Act, as the right to recover possession of the mortgaged land from the mortgagee after the expiry of the period of seven years is provided under section 12 itself. That being so, it was rightly submitted by the learned Standing Counsel No. 4 that the ratio of the Full Bench case in view of the subsequent notification referred to above, cannot apply to the case on hand. 8. From the above discussions I must hold that in view of the notification issued under G. S. R. 21, dated 11th April, 1977, quoted earlier, the Anchal Adhikaris in the State of Bihar are competent and empowered to discharge the functions of a Collector under section 12 of the Act within their respective local limits. This application has thus no merit and it is accordingly dismissed. S. N. Jha, J.- I entirely agree.