Ill||ll||llll| lllllllll|||llllllll % TrIE HIGH COJR‘“ OF hADrIVA PRADJLSE AT JB'I. AALPR Ngsc. Petlklon No. {C}? OE Igog. . Hariram $/o Pardeshi, aged 58 years, R/o Bortar-a, Tehsakl Belod,Dis-tt. Durg. Vs. Q m Kishan 3/0 Pitambe‘r ha, R/o Chulha Pathara, P C o 3, Tghsh Balod, Dis-t Durg. Sindhulmm S/o AJabl atnami, R/o Village Bbmmnapar, RESPOI’JDENTS " TGhSll Balod ulStj: urp“. Punltram 5/0 A3ab1 batmaml, R/o Village Aurl, ‘Lehml Kanker, J Dlstt. §astaru Samunr‘aoal “/0 Jot knOWn, H/o Vlllape Aurl, lehml Kanker, v District Bastar. Pannibai Wo Mont Known, R/o village Jarhagaon, Tehsil Balod, 'Dist‘b‘. Burg. ‘ Pannabal h/o Not known, R/o Villa’re Blrgundl, Tens11 Dhamtam, Distt Kalpur. Additional Collector, Durg. Sub Divisional Officar, Balod, District Burg, M.P. / i PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR GRA’I-T OI WRIT IN THE NATUREEJ OF CERTIORARI ETC. 1 i, / 1(a) Rasaram s/o Late Kishag. agea amat 55 yeaxs rub «iiLka‘ge Kaxwzxa. Tarssil-auarama. Di$triet «- mamker ££3.$¢)¢, . ,\ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition No.499 of 1985 Present: Shri Rakesh Pandey, counsel for the petitioner. Shri P.P;Sahu, counsel for respondents No.2 to 5. i' r ‘K"? K Shri Vinod Tekam, Panel Lawyer forthe State/respondents No.7&8. Writ Petition under Article 226 of‘the Constitution of India ORAL ORDER (Passed on 29th November, 2010)- Heard. 2. The petitioner has Called in question the order passed by the Sub—Divisional Officer on 15-2-1 984 and the appellate order passed by the Additional Collector on 22404934 under the provisions of the Chhattisgarh Samaj Ke Kamjor Vargon Ke Krishi Bhumi-_ Dharakon Ka Udhar Dene Waion Ke Bhumi Hadapane Sambandhi Kucha‘kron Se Paritran Tatha Mukti Adhiniyam, 1976 (henceforth ‘the Act’). By the impugned orders‘dated 15—2-1984 and 22—10- ’1984, the concerned authoritieshave set aside the sate transaction between the original holder Ajbi and Kishan on 22-4-1 978. 3. Ajbi owned 3.50 acres of land at Village Bortara. Out of the said area, he executed a sale—deed in favour of Kishan for an area A//"’/\ \ admeasuring 1.80 acres. The sale-deed was registered . showing v t consideration of‘ Rs.8,000/—. Ajbi moved an application under \ i \ Petitioner Hariram versus Respondents ' Kishan (Dead) through legal representative and others NV \+ \ ' / / W? 2 Section 5 of the Act/inter alia submitting that he has not been paid the amount of consideration and he still'remains in possession of the Iand and that, in fact, it is a case of mortgage. The petitioner is subsequent purchaser of the land from Kishan. During the pendency of proceedings before the Sub-Divisional Officer, statements of Ajbi, Sindhuram and Kishan were recorded. Ajbi stated that the Iand 'was mortgaged in favour of Kishan for Rs.3,000/— and that the Ioan has been repaid and he is in possession of the Iand which should be delivered back to him. His witness Sindhuram, who is his son, stated that his father had taken loan of Rs.3,000/— but the sale-deed mentioned the amount of consideration as Rs.8,000/-, however, the remaining amount has not been paid. He also stated that they are in possession of the Iand. 4. The original purchaser Kishan stated that he has purchased the land after paying valuable consideration of Rs.6,800/— on the date of registration of sale-deed and he has repaid loan of Rs.755/- on behalf of Ajbi in the Gurur Bank, however, he has stated that he does not recollect as to the exact amount delivered to Ajbi in his house. 5. The Sub-Divisional Officer found that it is a case of mortgage and a sale-deed has been executed fraudulently and member belonging to the weaker section of the society has been defrauded, which needs interference under the Act and, thus, the land was reverted back to Ajbi. The petitioner preferred an appeal before the Additional l i 6.‘ h/ /‘ ‘ Collector, which was dismissed by order dated 22-10-1984. "f 3 A ed o 5 d 7. ssailing the impugn rders dated 1-2-1984 an 22-10- 1984, learned ounsel appearing for the petitior has argued tha c ne t the applicatn nder Setion 5 of the Act as barred by mitation, io u c w li e SuDiviiona fficer hs n conducted the enquiry proprly in th b-sl O a ot e accordance with the provions of Act and tha the findings are is the t pererse. v 8. Per contra, Shri .P.ahu, leard counsel apearing for PS ne p \ spondents No.2 to hs argued that t autorities have re 5 a he h concurrently passed te impugd orders ginst the petitioner and h ne aa n interference is caled for in this writ petion. He woul subi that o l ti d mt respondent No. has died leaving behid her lega heirs and their 6 n l impleadment would be necesry, hever, in vie of the fact that sa ow w the sai resdent appears to be aght o Ajbi d the sons of d pon duer f an Ajbi are already ileaded as esponent .2 and 3 as also for mp rds No th ren that this writ petitio is of he year 1985 and is pending e aso n t since last 25 years, this Crt roceded to har te matter filly ou pe e h na overruli te submission. ng h 9. ection 2(c of the Act ines ”holder f agriltural lad" in _ S ) def o cu n the weaker sections of the society to mea a person who is nt n o holding land exceeding 8 hectares of unirrigated land or 4 hectares of irrigated land. Admittedly, Ajbi owned 3.50 acres of land, thus, he was holder of agricultural land as defined under the Act. Section 2(d) of the Act defines “lender of money” to mean a person advancing loan to a holder of agricultural land, whether registered has, under'the Madhya Pradesh Money Lenders Act, 1934 or not. lt has meen found by the authorities that the purchaser of the sale—deed 4 dated 22-4-1978, namely, Kishan had advanced loan to Ajbi and the sale—deed was registered though the vendor had obtained loan and never intended to execute the sale—deed. Thus, even if Kishan was not registered under the Madhya Pradesh Money Lenders Act, 1934, he, having advanced loan to the holder of agricultural land, Would be covered within the terms ”lender of money”, as defined under the Act. Section 6 of the Act enjoins upon the Sub—Divisional Officer to hold an enquiry after giving notice to all the parties concerned. Sub- section (4) of Section 6 of the Act makes provision regarding the powers of the Sub-Divisional Officer to ascertain the true nature of transaction of loan in course of enquiry. The Sub-Divisional Officer has recorded statements of witnesses before proceeding to pass final orders. The petitioner, who is the purchaser from Kishan and was not a party before the Sub—Divisional Officer, has not made any prayer before the said authority for exercising any right to cross- examine Ajbi and his witness. lt does not appear that even Kishan made such prayer before the Sub-Divisional Officer at any point of time. (a 10. Learned counsel for the petitioner has relied on Kesharsingh and another vs. Bhavsingh and others, 1994 MPLJ 268 to argue that Kishan having not been granted opportunity to cross—examine the witnesses, the order passed by the Sub-Divisional Officer is vitiated, however, in the absence of anything available on record to suggest that such right was prayed by the Kishan before the Sub— Divisional Officer and the prayer was denied, the judgment relied by (learned counsel for the petitioner is distinguishable. NQ/ 5 11. On consideration of the facts of the case, this Court is of the considered opinion that when the Sub-Divisional Officer records a finding that the subject transaction is a prohibited transaction of the loan, the said transaction has to be set aside. 12. in Ouseph Mathai and others vs. M. Abdul Khadir, (2002) 1 SCC 319 and Yeshwant Sakhaikar and another vs. Hirabat Kamat Mhamai and another, (2004) 6 SCC 71, the Hon’bie Supreme Court has held that in proceedings under Article 227 of the Constitution of lndia, the writ Court is not entitled to interfere with the Q finding of facts recorded by the subordinate authorities and that High Court, in exercise of powers under Article 227 of the Constitution of lndia, will not convert itself into a Court of appeal and re~appreciate the evidence. 13. It is also settled that power under Article 227 of the Constitution of India is to be used sparingly and only in appropriate cases to ensure that subordinate Courts and Tribunals act within the bounds of their authority. 14. in view ofi’the above legal position, this Court is unable to agree with the submission made by learned counsel for the petitioner. Consequently, the writ petition is dismissed. l sul- Prashant Kumar Mishra 1‘ " ' Judge Gopai