V N‘. ’ ~ r-‘, HIGH COURT OF CHHATTISGARH AT BILASPU3 R M.P.No.579 of 1§87 Kapil Deo Vs. Vasant Baba and others Post for @12009 K . Sd/— f ¥ i ’Sunil Kumar Sinha Judge Amyu x V A HIGH COURT OF CHHATTISGARH AT BILASPUR M. P.No. 579 of 1987 PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA Appearance: .\\ Mr. Anil Pandey, counsel for the petitioner. a Mr. Daya Ram Sharma,‘Sr. Advocate With Mrs. Rani Pathak, counsel for the reSpondents 1 8a 2 (a) (d) (e) (i) (g) & (h).. PETITIONER Kapildeo s/o Bhuwanlal Satnami of Mouza, Godhi, Tah. & Distt. Bilaspur (CG). Versus RESPONDENTS 1 . Vasant Baba, s/o Jhukri Lodhi 2. Jhukri, s/ 0 Nanki Lodhi, Cultivators of Mouza Umaria, The. 8r, Distt. Bilaspur (CG) — Dead. Substituted by Legal Representatives - 2(a) Basat Baboo, son of Jhukku, aged about 50 years 2(b) Jasoda Bai, Wife of Ramadhin, aged about 60 years — Name deleted on account of death. 2(c) Lokan Bai, wife of Dooja, aged about 58 years — Name deleted on account of death. 2(d) Godeshwari Bai, Wife of Puroo, aged about 28 years 2(e) Bithawan Bai, Wife of Thanwar, aged about 53 years - A11 cultivators, residents of village Umaria 2(f) Poonabai, wife of Bhuwan, aged about 48 years, cultivator of Belpuri 2(g) Kabiri Bai, w/o Gaja, aged about 45 years, cultivator , r/o Pedikapa, A11 residents of Tehshil and Distt. Bilaspur. 2(1'1) Dasmati Bai, Wife of not known, r/o Barahi, Tah. Mungeli, Distt. Bilaspur (C.G). 3. Addl. Collector, Bilaspur 4. SID.O., Bilaspur (1) 2 M.P.No.579 of 1987 JUDGMENT ( é . 1 1 .2009} SUNIL KUMAR SINHA, J. The petitioner has filed this petition for quashrnent of the order dated 31.03.1986 passed by the Addl. Collector, Bilaspur, in Appeal Case No.45/B-12 1 /83-84 (Annexure P—2). (2) The facts, briefly stated, are as under: The disputed land bearing Khasra No.263/ 3 area 8 acres was purchased by Shyam Bai fromone Kaniz Fatima Bi on 14.02.1965 for consideration of Rs.6000/—. Shyam Bai was mother of the petitioner Kapil Deo. Shyam Bai has died. The petitioner came with a case before the Sub— Divisional Officer that Shyam Bai had obtained certain loan from Basantu and his father Jhuku and had executed Rahannamas dated 22.07.1966 and 22.05.1967 which were in security of the loan transaction. However, the original respondents Basantu 85 Jhuku got the sale deeds registered, therefore, the land be restored to his possession under the provisions of the M.P (Chhattisgarhl Samai Ke Kamior Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadagane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (hereinafter referred to as “the Act, 1976”). Basantu 8t Jhuku, respondents in proceedings before the Sub-Divisional Officer, contended that they had purchased the aforesaid land by two registered sale deeds executed by Shyam Bai. The first sale deed was executed on 22.07. 1966 in respect of two acres of land for consideration of Rs.500/- and the second sale deed was executed on 22.05.1967 in respect of six acres for consideration of Rs.2500/—. According to them, these sale deeds were absolute in nature and there was no loan transaction. therefore, the land in question, under the aforesaid sale deeds cannot be restored to the petitioner. 3 §M M.P.No.579 of 1987 The Sub—Divisional Officer, after conducting due enquiry in Revenue Case No.28/B~121/82—83, by order dated 31.10.1983, recorded a finding that in fact the lands were mortgaged by the mother of the petitioner in lieu of the loan transactions. Therefore, the aforesaid sale deeds were set aside and the possession of the land was directed to be given to the petitioner. The said order was challenged by the respondents before the Collector in appeal. The Collector agreed with the finding recorded by the sub-Divisional Officer that the matters were not of execution of absolute sale deeds and there were loan transactions between the two respondents and the mother of the petitioner and the two sale deeds were got executed. That means the entitlement of the petitioner to get back the land was agreed. However, by order dated 31.03.1986 (Annexure Pa 2) the Collector exercised the power under provisions of sub— section (2) of Section 7 of the Act, 1976 and set aside the order of reversion of the land and directed to pay the difference amount to the petitioner. (31 Learned counsel for the petitioner argued that when the Collector did not disturb the finding of the Sub—Divisional Officer that the transactions were not the absolute sales and agreed to those findings, then Without recording any reason that restoration of the possession of the land would not be possible, the Collector should not have exercised the powers under sub-section (2) of Section 7 of the Act, 1976 for payment of difference of price amount and the order passed by the Sub—Divisional Officer should not have been modified. (4) On the other hand, Mr. Daya Ram Sharma, learned senior counsel appearing on behalf of the private respondents opposed these arguments and supported the order passed by the Collector. (5) l have heard learned counsel for the parties at length and have also perused the records of the writ petition. ,v‘ 4 M.P.N0.579 of 1987 wg.‘ (6) Section 7 of the Act, 1976 reads as under: 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 anythin 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 Officer 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 remained with him and order the lender of money to pay the same to the holder of agricultural land within a period of 3O days. (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 subvsection (1), he shall be deemed to be in unauthorized g (7) A bare perusal of sub-section(2) of Section 7 makes it clear that powers vested under this sub-section are to be exercised only if it is not possible to restore the possession of the land to the holder of the agricultural land. The Legislature has further laid down that for exercising powers under sub—section(2) of section 7, the reasons have to be recorded by the concerned authority. In the present case, the Collector has not recorded any reason as to Why the land cannot be restored to the possession of the holder. Even there is no evidence on record to show that the nature of the land has been changed in as much as restoration would not be possible or some construction etc., have been raised upon the land 0r some transactions, in between, have taken place, due to which, the restoration of possession to the holder of the agricultural land was not possible. On the contrary it is writ large on record that the land was through—out agricultural land and there was no hurdle in the way of restoration of the possession of the said land to the petitioner who is the holder. Therefore, the jurisdiction exercised by the Collector by passing an order under sub— section(2) of Section 7 was not justified. The Collector has exercised jurisdiction under section 7(2) of the Act, 1976 without any basis and \ 5 24$ M.P.No.579 of 1987 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 unauthorized 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. ./\without any reason, therefore, the order has to be set aside. , ?A 6 \ M.P.No.579 of 1987 6&9” (8) In the result, the writ petition is allowed. The impugned order passed by the Additional Collector (Annexure P—2) is set aside and the order passed by the Sub—Divisional Officer is restoredi (9) No costs. ._L\_ i Sdl- A Sunil Kumar Judge Sinha