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1993 DIGILAW 328 (PAT)

Bhagwan Mallah v. State Of Bihar

1993-07-30

R.N.PRASAD, S.B.SINHA

body1993
Judgment S. B. Sinha and J JJ. 1. This application is directed against an order dated 1-9-92 passed by the Commissioner, Saran Division in Case No 88 of 1989-90 whereby and whereunder be dismissed a revision-application preferred by the petitioner as also the order dated 4-6-199 passed by the Circle officer. Darauli in M L. Case No 1/81-82 in terms whereof the application filed by Respondent No.6 under Sec.12 of the Bihar Money Lenders act wa allowed. 2. The fact of the matter lies in a very narrow compass. Respondent no 6 executed usufructuary mortgage deed dated 27-5-1974 in favour of the petitioner in respect of 1 bigha 7 katbas and 11 dhoors appertaining to Plot no.145 and 146 of kbata No.3 The said respondent filed an application on 3-6-81 before the Anchal Adhikari Darauli under Sec.12 of the Money lenders Act and in the said proceeding, the petitioner filed an objection on 10-8 81 alleging inter-alia therein that the said application is not maintainable. By order dated 4-6-86 (Annexure-2), the Ancbal Adhikari Darauli allowed the said application The petitioner preferred an appeal against the said order which was registered as Case No.629 of 1982-83 and by order dated 30-6-83 the said appeal was dismissed which is contained in Annexure-3 to the writ application. The petitioner again filed a revision-application before the Collector, being No 288/84-85/52/89-90 which was also dismissed on 22nd August, 1989 (Annexure-4 ). A revision application was again filed before the Commissioner, Saran Division, but the same was also dismissed by order dated 1-9-92. The petitioner has contended that the Respondent no.6 has already sold away the mortgaged land on 22-6-1981 by reason of four registered sale deeds in favour of Banarsi Chaudhary and Randhari chaudhary and thus he has no locus standt to file the said application. 3. Learned Counsel for the petitioner has raited a short question in support of this application. Learned Counsel submitted that from a perusal of the definition of collector as contained in Sec.2 (b) and anchal adhikari as contained in Sec.2 (a) of the said Act, it would appear that the said authorities are different and in that view of the matter the application filed before the Anchal Adhikari was not maintainable. Learned Counsel in support of the aforementioned proposition relied upon a decision of this Court in 1984 PLJR 509 . 4. Learned Counsel in support of the aforementioned proposition relied upon a decision of this Court in 1984 PLJR 509 . 4. Learned Counsel for the petitioner shas further submitted that the anchal Adhikaris were designated as Collector under the said Act by reason of a notification dated 11-4-77 but after coming into force of the said rules, the said Notification lost its force. Learned Counsel in this connection has referred to Rule 7 of the Bihar Money Lenders Rules. 5. Section 12 of the Bihar Money Lenders Act reads as follows :- "usufructuary mortgages and their redemptions -Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of the Act, shall be deemed to have been fully satisfied and 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 in respect of such bond and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules : provided that if the mortgage bond had been executed before the commencement of this Act nothing in this section shall entitle the mortgagor to claim any account or profit from the mortgagee by the reason of the benefit of redemption of the mortgage under this provision. " 6. The State of Bihar in exercise of its powers conferred upon it under section 47 of the said Act framed rules known as Bihar Money Lenders rules, 1977. The said rules provide that the procedures for filing such application for redemption of mortgage ; hearing of objection and passing of the order, etc. 7. In the case 1984 Baikunth Mandal V/s. Sunder Mandal, 1984 PLJR 509 , a Pull Bench of this Court, inter alia, held that Anchal Adhikari is not a collector within the meaning of Sec.2 (b) of the Act who could exercise jurisdiction under Sec.12 of the Act. 7. In the case 1984 Baikunth Mandal V/s. Sunder Mandal, 1984 PLJR 509 , a Pull Bench of this Court, inter alia, held that Anchal Adhikari is not a collector within the meaning of Sec.2 (b) of the Act who could exercise jurisdiction under Sec.12 of the Act. However, in Dinesh Singh v The state of Bihar, 1986 PLJR 243, a Division Bench of this Court upon taking into consideration the aforementioned notification dated 11th April, 1977 of the said Act, held that in view of the fact that the aforementioned notification was not brought to the notice of the Full Bench in Baikunth Mandals case (supra), the said decision cannot be held to be a binding precedent. In fact, the Division Bench noticed that before the Full Bench only the notification dated 27th September 1975 was produced in terms whereof, the Land reforms Deputy Collectors were given the powers of Collector. In view of the later decision, as also the aforementioned notification dated 11-4-77, there cannot be any doubt whatsoever that the Anchal adhikaries shall be collector within the meaning of the provisions of the said Act. 8. Bihar Money Lenders Rules, 1977, came into force vide notification bearing No.501234, dated 6th September, 1977. 9. It is true that after coming into force of the said Rules, the collector under the said Act was bound to adopt the procedures laid down therein but Rule 6 do not lay down anything to suggest that the notification issued by the State under the Act would loose its force. 10. In fact from the very definition of collector as contained in section 2 (b) of the Act it ii clear that any person who is not below the rank of Deputy Collector can be appointed by the State of Bihar as a collector under the said Act. It is not the case of the petitioner that the anchal Adhikaries do not hold the rank of the Deputy Collector. This fact has also been noticed by a Division Bench in 1986 PLJR 243. 11. In this view of the matter the submission of the learned counsel for the petitioner cannot be accepted that the Ancbal Adhikari had no jurisdiction to issue the notification in-question. 12. This application is, therefore, devoid of any merit [and is accordingly dismissed, but without any order as to costs. Application dismissed,