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Madhya Pradesh High Court · body

2020 DIGILAW 136 (MP)

Doomabai v. Sunita

2020-01-24

G.S.AHLUWALIA

body2020
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 28.12.2019 passed by the Additional Commissioner, Gwalior Division, Gwalior in Case No. 312/2019- 20/Appeal by which the appeal filed by the respondents No. 1 to 3 against the order dated 3.7.2019 passed by the Additional Collector, District Datia in Case No. 70/2017-18/Appeal has been allowed. As a consequence thereof application filed by the petitioner under the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharakon Ko Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (In short the Act, 1976), has been dismissed. 2. It is submitted by the counsel for the petitioners that their predecessor Karodi had filed an application under section 5 of the Act, 1976. The said application was allowed by Sub-Divisional Officer, Datia by order dated 1.7.2014 passed in Case No. 55/ch-121/2013- 14. Being aggrieved by the said order, the respondents no.1 to 3 filed a writ petition before this Court which was registered as W.P. No. 5046/2014 and was allowed by order dated 10.4.2017 by holding that the order dated 1.7.2014 was passed by the Sub-Divisional Officer, Datia without service of notice on the respondents No. 1 to 3 and accordingly the matter was remanded back. Thereafter, by order dated 29.11.2017 the Sub-Divisional Officer, Datia in Case No. 55/ch-121/2013-14 once again allowed the application of the predecessor of the petitioner and directed for restoration of the land under section 7 of the Act, 1976. 3. Being aggrieved by the said order passed by the S.D.O., the respondents No. 1 to 3 filed an appeal before the Court of the Collector, Datia which was registered as Case No. 19/Appeal/2017-18 and by order dated 3.7.2019 the appeal filed by the respondents No. 1 to 3 was dismissed. A second appeal was filed by the respondents No. 1 to 3 before the Court of the Additional Commissioner, Gwalior Division, Gwalior which was registered as Case No. 312/2019-20/Appeal. A specific objection was raised by the petitioners with regard to maintainability of the appeal. It was submitted that the order passed by the Appellate Authority i.e. Collector is final and cannot be challenged either by way of revision or appeal. A specific objection was raised by the petitioners with regard to maintainability of the appeal. It was submitted that the order passed by the Appellate Authority i.e. Collector is final and cannot be challenged either by way of revision or appeal. However, without considering the said objection, the Additional Commissioner, Gwalior Division, Gwalior, by the impugned order dated 23.12.2019, has allowed the appeal and has rejected the application filed by the predecessor of the petitioners under section 5 of the Act, 1976. The primary ground for challenge is that the impugned order passed by the Additional Commissioner, Gwalior Division, Gwalior is without jurisdiction. 4. Per contra, it is submitted by the counsel for the respondents No. 1 to 3 that this Court in exercise of power of 227 of the Constitution of India can affirm the findings given by the Additional Commissioner, Gwalior Division, Gwalior. 5. Considered the submissions made by the counsel for the parties. sections, 5, 6, 7, 8 and 9 of the Act, 1976, reproduced karna Hai. 5. Application for protection and seeking relief under this Act.- A holder of agricultural land who is a party to any transaction of loan subsisting on the appointed day or entered into thereafter may apply to the Sub-Divisional Officer within such time, and in such form and manner as may be prescribed for protection and relief under this Act. 6. Enquiry by Sub-Divisional Officer.- (1) The Sub-Divisional Oficer may, on his own motion in any transaction of loan and shall on receipt of an application under section 5 in the transaction of loan referred to herein, make preliminary enquiry as he may in the circumstances of the case deem fit, to ascertain whether the transaction of loan is a prohibited transaction of loan and on being satisfied that section 4 applies to such transaction, he shall, after recording his opinion therefore, proceed to conduct an enquiry into such transaction in the manner hereinafter provided. (2) The Sub-Divisional Officer shall by a notice served on the parties to the prohibited transaction of loan all upon them to place all relevant facts and documents before him at such place, on such date and at such time as may be specified in the notice. (2) The Sub-Divisional Officer shall by a notice served on the parties to the prohibited transaction of loan all upon them to place all relevant facts and documents before him at such place, on such date and at such time as may be specified in the notice. (3) The Sub-Divisional Officer shall at the place and on the date and time specified in the notice, afford an opportunity to the parties of heard in person and may, if necessary, examine all of the parties interested in land to elucidate information relevant to the transaction of loan. (4) During the inquiry the Sub-Divisional Officer shall, for the purpose of ascertaining the true nature of transaction of loan, try to collect, as far as may be, information with respect to the following facts, namely: (i) the amount of principal money; (ii) the market value of the land at the time of the transaction; (iii) adequacy of the amount of principal money as consideration for sale in the context of then market value under clause (ii); (iv) whether the consideration shown in the document was paid in whole or in part privately or before the Sub-Registrar; (v) whether possession of the land was actually delivered to the lender of money as per recitals in the said document. If not, when and in what manner the lender of money obtained possession of the land; (vi) what were the terms of the actual agreement between the lender of money and the holder of agricultural land including the rate of interest; (vii) the extent of urgency for the loan and the availability of other sources to the holder of agricultural land to obtain the same; (viii) payment, if any, made by the holder of agricultural land to the lender of money towards the loan; (ix) whether the lender of money is registered money lender or not; (x) any other surrounding circumstances which the Sun-Divisional Officer may deem fit to consider. 7. 7. Setting aside sale and restoration of possession of land or affording other relief.- (1) If after the enquiry, the Sub-Divisional Officer is satisfied that- (i) the transaction of loan is not a prohibited transaction of loan he shall dismiss the application or close the proceedings: (ii) the transaction of loan in substance is a prohibited transaction of loan he shall declare such transaction to be void and shall- (a) pass an order setting aside the transfer of land to the lender of money and consequently restoring the possession of land to the holder of agricultural land, or (b) where in his opinion it is not feasible to restore the possession of land, pass order directing the lender of money to pay the difference of price under sub-section (2), and (c) pass such other consequential orders as may be necessary: Provided that nothing in this clause shall prejudice the right of the lender of money to enforce his right to recover the loan advanced by him to the holder of agricultural land under such transaction by due process of law within a period of three months from the date of final declaration of prohibited transaction of loan void notwithstanding anything contained in the Limitation Act, 1963 (No. 36 of 1963). (2) Where for any reason whatsoever to be recorded in writing it is not possible to restore such land to the holder of agricultural land, he shall fix the price of such land, In such manner as may be prescribed, which It would have fetched at the time of transfer and order the lender of money to pay the difference, if any, between the price so fixed and the amount actually advanced to the holder of agricultural land together with interest at the current bank rate for the period upto the date of payment, within a period of six months. (3) If any order is passed under sub-section (2) the Sub-Divisional Omcer may also determine in such manner as may be prescribed, the net income which has accrued to the lender of money during the period land remanded with him and order the lender of money to pay the same to the holder of agricultural land within a period of 30 days. 4. 4. If the lender of money fails to deliver the possession of the land to the holder of agricultural land consequent on the setting aside the transfer under clause (ii) of sub-section (1), he shall be deemed to be in unauthorized possession of such land from the date of setting aside of the transfer and the provisions of section 248 of the Code shall mutatis mutandis apply thereto as they apply to the unauthorised possession of Government land. 5. If the lender of money fails to pay- (i) the difference of price ordered to be paid under sub-section (2); or (ii) the net income determined under sub-section (3), within the time specified in sub-section (2) or sub-section (3), as the case may be, the same shall be recoverable as an arrear of land revenue and the amount so recovered shall be paid to the holder of agricultural land. 8. Appeal.- Any person aggrieved by an order of the Sub-Divisional Officer under section 7 may. within 30 days of the date of passing such order, appeal to the Collector in such form and manner and accompanied by such fee as may be prescribed: Provided that in computing the period aforesaid time requisite for obtaining a copy of the order appealed against shall be excluded. 9. Finality of order. Save as otherwise expressly provided in this Act every order made by the Collector in appeal or of a Sub-Divisional Officer, shall, if no appeal is filed, be final and shall not be called in question, in any Court, tribunal or authority by way of an appeal or revision or in any original suit, application or execution proceedings. 6. From the plain reading of section 9 of the Act, 1976, it is clear that save as otherwise expressly provided in this Act, every order made by the Collector in appeal or of a Sub-Divisional Officer, shall, if no appeal is filed, be final and shall not be called in question. 7. Counsel for the respondents No. 1 to 3 could not point out any provision of law which makes the order of the Appellate Authority as appealable. Further, the petitioner has specifically raised an objection with regard to maintainability of the appeal before the Additional Commissioner, Gwalior Division, Gwalior. 7. Counsel for the respondents No. 1 to 3 could not point out any provision of law which makes the order of the Appellate Authority as appealable. Further, the petitioner has specifically raised an objection with regard to maintainability of the appeal before the Additional Commissioner, Gwalior Division, Gwalior. However, without adhering to the said objection, the order passed by the Additional Collector, Datia as well as the S.D.O., Datia was set aside on merits. 8. This Court is of the considered opinion that the appeal filed by the respondents No. 1 to 3 before the Additional Commissioner, Gwalior Division, Gwalior was not maintainable and the Additional Commissioner, Gwalior Division, Gwalior had no jurisdiction to entertain the said appeal. 9. So far as the contention made by the counsel for the respondents No. 1 to 3 that inspite of the fact that the appeal before the Additional Commissioner, Gwalior Division, Gwalior was not maintainable but still this Court while exercising the power under Article 227 of the Constitution of India can affirm the findings given by the said authority is concerned, this Court is of the considered opinion that such submission is misconceived and cannot be accepted. 10. It is well established principle of law that any finding given by the authority which has no jurisdiction to entertain the appeal, is a nullity, therefore, even exercising of power under Article 227 of the Constitution of India, this Court cannot look into the findings given by the Additional Commissioner, Gwalior Division, Gwalior because they were without jurisdiction and are nullity. 11. Accordingly the order dated 23.12.2019 passed by the Additional Commissioner, Gwalior Division, Gwalior in Case No. 312/2019- 20/Appeal is hereby quashed. 12. At this stage, it is submitted by the counsel for the respondents No. 1 to 3 that they may be permitted to challenge the order of the Additional Collector, Datia as well as the SDO, Datia by filing a writ petition before this Court. Since the appeal filed by the respondents No. 1 to 3 has been held to be without jurisdiction, therefore, no further liberty is required for the respondents No. 1 to 3, if they want to avail a remedy which may be available to them. Accordingly, this petition succeeds and is allowed. .....................