3-o;3-^-°lb HIGH COURT OF CHHATTISGARH, BILASPUR Sinale Bench: Hon^ble ShriSunil KumarSinha, J. W.P. No. 377 of 1990 Amriklal Saluja & Others Vs. „ The Additional Collector, Bilaspur & Others ORDER Postfor0rder:3(y03/2010 Sd/- SunilKumarSinha ~ ~ 'Judge ..^K! APR HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'ble Shri Sunil KumarSinha, J, PETITIONERS RESPONDENTS W.P. No. 377 of 1990 1. Amriklal Satuja, aged 33 years, Son of Harnamdas Saluja, occupation cultivation, r/o village Sendri, Tahsil and District Bilaspur (MP) (Now C.G.) 2. Harnamdas, aged 78 years, son of Dayal Singh, occupation cultivation, r/o village Sendri, Tahsil and District Bilaspur (MP) (Now C.G.) Dead-Through L.Rs. 2(1) Rajesh Saluja, S/o Late Shri Harnamdas Saluja, aged about 47 years 2(2) Ashok Kumar Saluj'a S/o Late Shri Harnamdas Saluja, aged about 4 years 2(3) Amarnath ' Saluja, S/o Late Shri Harnamdas Saluja, aged about 58 years All above residents of Nariyal Kothi, Dayalbandh, Bilaspur, District Bilaspur, Chhattisgarh Versus 1 The Additional Coilector, Bilaspur, District Bilaspur (MP) (Now C.G.) 2 Bisahulal, aged about 60 years, son of Nandlal Satnami, occupation cultivation, r/o village Sendri, Tahsil and Distt. Bilaspur (MP) (Now C.G.) Dead-Through L.R. 2(1) 3(a) Smt. Tairus Bai, W/o Late Shri Beli, adult, Resident of Village Sendri, Tehsil & District Bilaspur, Chhattisgarh Itwari son of Ghasiya, aged about 45 years, occupation cultivation, r/o village Sendri, Tahsil and District Bilaspur (M.P.)(NowC.G.) Dead- Through L.Rs. Smt. Sarwanti Bai, W/o Late Shri Itwari, aged about 60 years "ii.. dffSa 1 / r ---.•llf -'S-SE?.^' W.P. No. 377 of 1990 3(b) Ranjeet S/o Late Shri Itwari, aged about 40 years 3(c) Balwant, S/o Late Shri Itwari, aged about 32 years 3(d) Raj Kumar, S/o Late Shri Itwari, Aged about 27 years 3(e) Satyam Bai, D/o Late Shri Itwari, Aged about 23 years All above residents of Village Sendri, Tehsil and Djstrict Bilaspur, Chhttisgarh 3(f) Amrika Bai, D/o Late Shri Itwari, aged about 50 years, Resident of Kormi, Bilaspur (Writ Petition under Article 226/227 of the Constitution of Inida) Appearance: •'sl - . -. • Mr. Ashish Shrivastava and Mr. Harshwardhan, Advocates for the petitioners. Mr. Shashank Thakur, Panel Lawyer for the State/respondent No.1. Mr. Prafull Bharat, Advocate for respondent No. 2(1). Mrs. Renu Kochar, Advocatefor respondents 3 (a) to 3 (f). ORDER (30.03.2010) SunilKumarSinha, J. (1) The petitioners have prayed for quashing of the order dated 5.2.90 (Annexure-A), passed by respondent No.l/Additional Collector, Bilaspur (C.G.). (2) The facts, briefly stated are as under:- Bisahu and Itwari both sons of Ghasiya Satnami,filed an application u/s 5 of the M.P. (Chhattisgarh) Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti . Adhiniyam, 1976 (hereinafter referred to the 'Act 1976'), before the Sub-Divisional Officer againstAmrikIal (petitioner No.1 herein) and ^•c^ W.P. No. 377 of 1990 KI^Sl^^'i^^. , Bl^'^3SK?:^^-(i' Harnamdas (petitioner No.2 herein who died during the pendency of the writ petition) for return of their agriculture land admeasuring 4.10 acres situated in village Sendri, Tehsil and District Bilaspur (C.G.). They pleaded thatthis land was taken by Harnamdas in lieu of a loan advance to Bisahu and his mother Jagarbai. They were told that some document has to be executed. The document was signed by Bisahu on 2.2.68 and the possession was delivered to Harnamdas. When they met with Harnamdas for return of possession, he denied and claimed that the land belongs to him. After due enquiry, it was discovered that, in fact, asale-deed for Rs.500/- was got executed and registered by Harnamdas on 2.2.68. Harnamdas and petitioner No.1 filed their reply before the Sub-Divisional Officer and pleaded thatit was an absolute sale and no such document was executed for gdvancement of alleged loan. The Sub-Divisional Officer, after due enquiry, dismissed the application on 24.3.87 filed by Bisahu and Itwari. Thereafter a revision petition was filed by them before the Additional Collector, Bilaspur. The said revision petition was allowed by the Additional Collector on 5.2.90 and the order passed by the Sub-Divisional Officer on 24.3.87 was set-aside and the sale-deed dated 2.2.68 was also cancelled and it was directed that the lands be restored to the possession of Bisahu and Itwari, i.e. sons of Ghasiya and other legal representatives pf deceased-Jagarbai wife of Ghasiya. (3) Learned counsel appearing on behalf of the petitioners argued that there is no provisions for filing of a revision in the Act 1976, whereas, the Additional Collector has exercised revisional jurisdication, therefore, the impugned order passed by the Additional Collector allowing the application filed on behalf of the seller was without jurisdiction and deserves to be quashed on this ground alone. He also argued that the Additional Collector has not assigned adequate reasons for setting-aside W.P. No. 377 of 1990 the sale under the provision of thesaid Act 1976. In fact, the said authority ought to have held that Ihere were no sufficient reasonsfor setting-aside the registered sale-deed dated 2.2.68 holding it to be a document executed in lieu of the loan advanced by the purchasers to the sellers. (4) On the other hahd, learned counsel appearing on behalf of respective respondents opposed these arguments and supported the order passed by the Additional Collector. They argued that there was a provision of appeal u/s 8 of the Act1976 and the Additional Collector, in fact, entertained the appellate jurisdiction and has passed the impugned order. Since there is no provision of revision in the Act, therefore, question of exercising revisional jurisdiction by the Additional Collector does not arise. They submitted that nomenclature used by the appellants before the Additional Collector and registration of their matter as a revision before the said authority would make no difference on the merits of the order, so far as jurisdiction of the said authority is concerned. On merits, they argued that there were sufficient grounds for reversing the order passed by the Sub-Divisional Officer. Therefore, the order passed by the Additional Collector canriot be quashed. (5) I have heard the learned counsel for the parties at length and have also perused the records ofthe writ petition. (6) Admittedly, there. is no provision of revision in the Act 1976. However the Act provides for filing ofan appeal by any aggrieved person by the order of the Sub-Divisional Officer passed u/s 7 of the Act and the appellate authority, according to the Act, is the Collector, which will \- ,,?-";; • '""-^^.' ^''^-^ '^. ^ ,(^;:^ ^•; !f "t>ll,,,.._^» W.P.No. 377 of 1990 include the Additional Collector as in case on hand. Therefore, in the present case, a revision was filed before an authority who was empowered to hear an appeal in all respects and there is no dispute about it. If the appropriate authority has exercised the jurisdiction vested in it under the law and has passed an order within his such jurisdiction, whether such order passed by the said authority can be set-aside only on the ground that the nomenclature of the matter filed before him was not showing that particular category under which the authority has to exercise its jurisdiction ? .- —. (7) In Ramesh Chandra Sankla Etc. -Vs- Vikram Cement Etc. & other connected matters. 2008 AIR SCW 7923, the Supreme Court made following observations in Para-32 that: "32. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal ? The reply unquestionably is in the negative [see Peps/ Foods Ltd. & Anr. Vs- Soecial Judicial Maaistrate & Ors.. (1998) 5 SCC 749\" (8) In M.M.T.C. Limited -Vs- Commissioner of Commercial Tax and Others, (2009) 1 SCC 8, the Supreme Court examining the maintainability of LPA in view of the proviso to Section 2 of the M.P. /\ •*—!»*.- •;'-t. ^s^ g !i, ~^,// 'T':. W.P.No._377ofl990 Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal)Adhiniyam, 2005, held that the nomenclature given in the writ petition, namely that it was under Article 227 was not conclusive. The pleadings in the writ petition, nature of the order passed, character and the contour of the order, directions issued, nomenclature given the jurisdictional perspective in the constitutional context are to be perceived and it cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be.treated all the time for all purposes to be under Articte 227 of the Constitution of India. (9) In Manieet Ram Kewat -Vs- State of Chhattisaarh and others, 2006 (4) M.P.H.T. 76 (CG), in a Panchayat matter, a revision was filed before the Collector by respondents 4 to 7. It was registered as a revision by the Collector and ultimately an order was passed. The argument advanced was that the Collector had no revisional jurisdiction as per the scheme of Chhattisgarh Panchayats (Appeal and Revision) Rules 1995 and instead of a revision, the appeal would have been filed under the relevant provisions of the aforesaid Rules. After hearing the parties, this Bench held that the order passed by the Collectorwas on merits and in all respects the Collector has exercised its appellant jurisdiction while passing such an order. Since the matter was filed before the Collector by respondents 4to 7 as a revision, the Collector registered it as a revision and ultimately passed the order in the aforesaid manner. It was held that it is the substantive jurisdiction, which has been entertained by the authprity is to be seenandnot thenomenclature used, either by the authority or.by the parties to the matter should be the decisive factor for ~<^ ,. ••••'-" :.t- .£,;., !s'^;iiSla W.P.No. 377 of 1990 classifying the nature of jurisdiction entertained by a particular authority under a particular head or statute. If the authority entertaining a particular action has statutory jurisdiction to entertain the same under the law, then merely by registering that action under any particular head or under the different nomenclature would not make any difference on the merits ofthe decision rendered by the said authority, so far as his jurisdiction is concerned. (10) As stated (supra), Section 8 ofthe Act, 1976 provides for an appeal against the order passed by the Sub-Divisional Officer u/s 7, and Section 9 further provides about the finality of the order which says that save as otherwise expressly provided in the Act, 1976, every order made by the Collector in appeal or ofa Sub-Divisional Order, 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. The above 2 provisions make it clear that a person aggrieved by the order passed by the Sub-Divisional Officer has only one remedy of filing an appeal before the Collector. In light ofthe above provisions, when si|igular remedy was available before the Collector, the proceedings before the Additional Collector has to be classified under the said remedy alone. Therefore, if the Additional Collector has exercised his power in setting-aside an order passed u/s 7 of the Act 1976, he has exercised his jurisdiction of appealu/s S because no other jurisdiction was available to the Collector. Moreover, the order passed by the Additional Collector is on the merits of the case. The Additional Collector has given reasons for setting-aside the order passed by the Sub-Divisional Officer. This further shows that the Additional -'~''"?«iStSsew-'wfy"~--s'Ke'^Ss^gy'. "-s;'^' ^ieB': ;!SSSSttr ip W.P. No. 377 of 1990 Collector has exercised his appellate jurisdiction. In this state ofaffairs, if the aggrieved party has chosen to file his matter as a revision before the Additional Collector and the matter was also registered as a revision before the said authority,that would hardly make any difference, so far as the jurisdiction of the Additional Collector is concerned. The choice of the party to label the matter as a revision and nomenclature of the matter would make no difference. What is required to be seen is that what jurisdiction the authority has exercised and what jurisdiction it was possessing to exercise, in the matter. In the above facts and circumstance, there is no force in the arguments advanced by the learned counsel for the petitioners that the order passed by the Additional Collector was without jurisdiction. (11) Now we shall examine the merits of the order. (12) In Bhavsinah fDead) bv L.RS. -Vs- Keshar Singh and others. AIR 2003 SC 3199, the Supreme Court held that the Act 1976 is of wider amplitude and even if there is outright sale transaction by a debtor, it would be considered to be prohibited transaction of 'loan' and that can be declared null and void under the provisions of the Act. The Act provides for declaring the sale transaction to be null and void as by virtue of Section 3,various provisions of the Act have been given overriding effect. (13) Section 2, (f) definesthe 'prohibited transaction of loan' which means a transaction in which a lender of money advances loan to a holder of agricultural land against security of his interest in land, whether at tlite time ofadvancing the loan or at any time thereafter during the currency ofthe loan in any ofthe following modes, namely:- ,tef-.i«- ^ T@^^SP •,Sr!<. ..^1 i^'^^TSk'WS^T^^W-^^S^ •••^^. s^sW^ W.P. No. 377 of 1990 "(i) agreement to sell landwith or without delivery of possession; (ii) outright sale of land with or without delivery of possession accompanied by separate agreement to re-sell it; (iii) outright sale of land with or without delivery of possession with a distinct oral understanding that the sale shall not be acted upon iftheloan is re-paid; (iv) outright sale of land with or without delivery of possession with a condition incorporated in the sale deed to re-sell it on re-payment ofthe loan; (v) transaction in any modes other than those . specifiedin clauses (i) to (iv) affecting interest in land including a fraudutent transaction or a transaction designed to defeat the provisions of any law regulating money-lending or interest, for the time being in force, and includes all those transactions in which a lender of money has, after the appointed day but on or before the date of publication of this Act in the Gazette, obtained possession of land of the holder of agricultural land through Court or by force or otherwise or obtained a decree for such possession towards satisfaction of loan." (14) Section 6 provides for enquiry to be carried out by the Sub- Divisional Officer on an application which may be filed by an holder of agricultural land who belongs to weaker section of the people. Sub- section (4) of Section 6 provides that, in that enquiry, for the purpose of ascertaining the true nature of transaction of loan, SDO shall collect, as far as may be, information with respect fo the following facts, namely:- "(i) the amount of principal money; (ii) the market value of the land at the time of transaction; (iii) adequacy of the amount of principal money as consideration for sale in the contest of then market value under clause (ii); s^ii^^ j li^»<^ •<ie:aai 10 W.P. No. 377 of 1990 (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 ofinterest; (vii) the extent of urgency for the loan and the availability of other sources to the holder of agricyltural 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 Sub-Divisional Officer may deem fit to consider." (15) If after such enquiry made under sub-section (4) of Section 6 the Sub-Divisional Officer is satisfied that the transaction of loan in substance was a prohibited transaction of loan, he shall declare such transaction to be void and pass an order setting-aside the transfer of land to the lender of money and consequently the possession of land would be restored to the holder of the agricultural land. (16) The Additional Collector has observed in Para-7 of the impugned order that according to Patwari report received by the Sub-Divisional Officer, the land in question was marked as D-2 land and as per the bikh -chanth of the year 1966-67 and 1968 the average price of the D-2 lapd was at the rate of Rs.242/- per acre. Therefore, according to the said [|lSfct(J^l^-WI 11 W.P.NO. 377 of 1990 rate, the total average price of 4.10 acres of land would be Rs.992/- in the year 1967-68, whereas, according to sale, the price was shown to be Rs.500/-. ':^^s' i3g.. v ^WsWKsSs f (17) We further find that during the course of enquiry the two attesting witnesses namely Ramsenehi and Mandal wereexamined. They have also stated that, in fact, the land was mortgage by the vendor and a promise was made that it shall be returned to them. Ramsenehi has very specifically deposed that though the land was mortgage but a document of sale was prepared. The Sub-Divisional Officer has given much weightage to the evidence of scribe namely Abdul Hamid. Abdul Hamid was a document writer. He deposed that the said document was prepared on the instruction of the sellers. They told him that they are to sell their land for consideration of Rs.500/-, on which, he took them to the stamp vendor and after purchasing of the stamp paper the sale-deed was typed on his instructions by one Awadhesh and Rs.500/- was given by Harnamdas to Jagarbai (sellor No.1). TheAdditional Collector observed that it would be difficult for a document writer to depose all this with certainty after such a long period. According to Section 6 (4) of the Act, the Sub-Divisional Officer has to ascertain the true nature of transaction and theenquiry has to be completed under those provisions. The order of the Sub-Divisional Officer was on different line. The Additional Collector, by applying the provisions of sub-section (4) of Section 6 has reversed the order passed by the Sub-Divisional Officer and has held that the aforesaid transaction was a prohibited transaction and then has set-aside the same. 7 TT RBSH18HBKB .rs/:^.''i-:; ?' J 9 ''vy.. •^s-^ fllfT^^^'^7":'' vatti 12 W,P_No. 377 of 1990 (18) For the foregoing reasons, l do not find any illegality or infirmity in the impugned order passed by the Additionat Collector. (19) There is no substance in the writ petition, the petition deserves to be dismissed and is accordingly dismissed. (20) There shall be no order as to cost. __ Sd/- SuniIKumarSinha - 'Judse 7