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2007 DIGILAW 715 (PAT)

Bishun Rai v. State Of Bihar

2007-04-10

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The petitioner is aggrieved by order dated 28.7.2005, passed by the Collector of the District Saran at Chapra passed in Money Lenders (Redemption) Revision Case No. 617 of 2001, whereby the revision application of the mortgagor seeking redemption has been allowed. The petitioner is a money lender. On taking certain lands on usufructory mortage on 25.6.1948 and 27.5.1974, petitioners father had lent out money to the father of the private respondents no. 5. The private respondents has appeared but has not filed counter affidavit. It appears that the private respondents filed an application before the Anchal Adhikari for usufructory mortgage to be redeemed in terms of sec. 12 of the Bihar Money Lenders Act 1974 3. The Anchal Adhikari held that a: the petitioner i.e. the mortgagee money lenders had more than two and half acres of land and as such he was not covered by the exemption notification issued by the State of Bihar in the year, 1981 and accordingly held that the mortgage stood redeemed by operation of sec. 12. The petitioner preferred an appeal which was allowed by the D.C.L.R. holding that the mortgagor had sought redemption which was barred by limitation. So far as the mortgage of 1948 is concerned and so far as the other mortgages is concerned he held that the petitioner came within the exemption of the notification issued in 1981 having land less than 2.5 acres thus the appeal of the petitioner was allowed and it was held that neither of the two mortgages could be redeemed. The borrower that is the mortgagor then filed a revision before the Collector which has been allowed by the impugned order. 4. Having heard the matter and with consent of the parties this application is being disposed of at the stage of admission itself. So far as the mortgage made in the year 1948 is concerned, in my view there cannot be any dispute that by operation of the provisions of sec. 12 of the Bihar Money Lenders Act the same had automatically redeemed so is the declaration of law contained therein. This redemption attain finality the date section 12 of the Act was enacted. The redemption took place in 1974 itself and that right was perfected and complete in itself. No law of limitation would arise in such an event and no subsequent notification could take away such a right. This redemption attain finality the date section 12 of the Act was enacted. The redemption took place in 1974 itself and that right was perfected and complete in itself. No law of limitation would arise in such an event and no subsequent notification could take away such a right. 5. In my view, the petitioner is not correct in submitting that to get the aforesaid right, any application or suit was necessary. In my view it is a legislative declaration of redemption and requires no suit to get declaration of redemption. Therefore so far as the mortgage of 1948 is concerned, it had automatically by operation of Act stood redeem. This view of mine is supported by the Division Bench Judgment of this court reported in 1980 PLJR page 294, Md. Unis vs. State of Bihar and Ors. 6. The same is not the position in respect of the mortgage which was executed in the year, 1974 i.e. on 27.5.1974. The notification was issued exempting small money lenders on 13 Feb. 1981 and had exempted small money lenders. This notification came in less than 7 years and as such the legislative declaration of redemption could not thus take place before the notification was issued. The said notification having been issued which covers money lenders having less than 7 acres of land, it would be a moot point to be determined by appropriate authority whether the petitioner at that time had less than 7 acres of land. If he had less than 7 acres of land then in terms of sec. 3 of the Act read with the aforesaid notification it would be exempted for operation of section 12 and the usufructory mortgage would not be redeemed on expiry of 7 years. To my mind this question has not been properly and in right perspective dealt with by the authorities. Therefore, so far as the mortgage of the year 1948 is concerned, the order of the Collector of the District is upheld but so far as the order in respect of mortgage dated 27.5.1974 is concerned, the order cannot be sustained as it is dependent on a positive finding with regard to whether the petitioner money lender had lands more than 7 acres on the date when the period of 7 years expired. Therefore, while setting aside finding of the Collector in so far as the mortgage of 1974 is concerned, I remit the matter to the Collector to get the matter enquired into and after report is received and after making the report available to the parties herein, pass appropriate order in view of the law as noticed above. 7. This writ application, therefore, partly succeeds.