CIVIL WRIT JURISDICTION CASE No.3512 OF 1993 ------------ In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Smt. Ramsati Devi, wife of Nityanand Singh, resident of Village- Maghaiyachak, Banhara, Police Station-Haveli Kharagpur, District- Munger, at present residing at Mohalla Dalhatta Bazar, Town, Police Station and District-Munger ---------- Petitioner. Versus 1. The State of Bihar. 2. The Additional Collector, Munger. 3. The Deputy Collector, Land Reforms, Sadar, Munger. 4. The Anchal Adhikari, Kharagpur, District- Munger. 5(i) Mosst. Babu Dai, W/O late Krit Nr. Singh. (ii) Mukund Kr. Singh (iii)Vimal Kr. Singh, sons of late Krit Nr. Singh, resident of Maghaiyachak, P.O. Banhara, P.S. Haveli Kharagpur, District-Munger ------- Respondents. -------------- For the Petitioner : Mr.Prashant Vedasen For the respondent no.5 : Mr.Shiv Nandan Rai, Sr.Advocate & Ms. Pravina Kumari(Rai) Fro Respondent nos. 1 to 4- : Mr. Rana Ishwar Chandra, Assistant Counsel to Government Pleader No.13. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JAYANANDAN SINGH S.K.Katriar,J. This writ petition is directed against the order dated 15.3.1993 (Annexure-3), passed by the learned Additional Collector, Munger, in Case No.100 of 1990-91 (Smt. Ramsati Devi Vrs.Krit Narayan Singh), whereby the revision application preferred by the present petitioner under the provisions of the Bihar Money Lenders Act, 1974 (hereinafter referred to as „the Act‟), read with Bihar Money 2 Lenders Rules, 1977 (hereinafter referred to as „the Rules‟), has been rejected. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. Krit Narayan Singh is the mortgagor, and Smt. Ramsati Devi is the mortgagee. Krit Narayan Singh (respondent no.5 herein) died during the pendency of the present writ petition and has been substituted by his heirs. Krit Narayan Singh had taken loan of Rs.5,000/- from the writ petitioner in lieu of usufructuary mortgage. In other words, Krit Narayan Singh had received a loan of Rs.5,000/- from the writ petitioner, and had in turn handed over possession of .80 decimals of land bearing plot nos. 2416 and 2417, appertaining to Khata No. 57, situate at village Maghaiyachak, police station Kharagpur, which was evidenced by unregistered deed of usufructuary mortgage dated 20.5.1974. Krit Narayan Singh served notice on the writ petitioner on 18.4.1988, demanding return of possession of the land in question without the necessity of payment of the loan amount in view of the provisions of Section 12 of the Act. The writ petitioner refused to hand over possession of the land, leading to application under section 12 of the Act at the instance of Krit Narayan Singh. The application was allowed by order dated 23.8.1988 (Annexure-1), passed by the learned Anchal Adhikari, Kharagpur, in Case No. 2 of 1988-89. 3 3. Aggrieved by the said order, the writ petitioner preferred appeal which was dismissed by order dated 12.11.1990 (Annexure-2), passed by the learned Deputy Collector of Land Reforms, Sadar, Munger in Money Lending Appeal No.2 of 1988-89 (Smt Ramsati Devi Vrs. Krit Narayan Singh). The present writ petitioner challenged the appellate order by preferring revision application which was also rejected by order dated 15.3.1993 (Annexure-3), passed by the learned Additional Collector, Munger, in Case no.100 of 1990-91(Smt. Ramsati Devi Vrs.Krit Narayan Singh), whereby the application was dismissed, and it has been directed that Krit Naryan Singh is entitled to possession of the land without the necessity of re-payment of the loan amount. Hence this writ petition at the instance of the mortgagee. 4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that, in view of the findings recorded by the learned authorities, it is evident that the petitioner is not the owner of any land. Therefore, under the provisions of Section 12 of the Act, read with notification no.207 dated 13.2.1981, the petitioner (mortgagee) is beyond the mischief of the Act. The combined effect of these provisions is that a mortgagee would be beyond the mischief of the Act if it is found that she (the mortgagee) owns less then 5 acres of land. It is 4 submitted that in view of the discussion in the orders of the learned authorities, that the petitioner‟s husband, who is the Karta of the joint family, which comprises of six brothers, owns 11.8 acres of land. Her husband is still alive, therefore, she has not a coparcener of Hindu Undivided family. In other words, in his submission, the mortgagor is not entitled to possession of the land till such time he refunds the loan amount. 5. Learned counsel for respondent nos. 5 (i) to 5(iii) submits that the said notification dated 13.2.1981 carves out an exception from Section 12 of the Act, namely, the mortgagee would be beyond the mischief of section 12 of the Act if she is able to establish that she owns less than five acres of land. In other words, the entire onus of the same is on the mortgagee which has not been discharged in the present case. Secondly, he got possession of the land soon after the learned Anchal Adhikari had allowed his application on 23.8.1988 (Annexure-1). 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It weighs very heavily in our minds that the mortgagee had lent a small sum of Rs.5,000/- to the mortgagor and got possession of .80 decimals of land. The learned revisional authority has found as follows: “The citation of 1985 B.B.C.J. page 119 and 5 1989 P.L.J.R. page 186 is not applicable here in this case of respondent has got possession over the lands in dispute. Because on the order dated 25.11.88 of the Anchal Adhikari, the appellant left his possession from the disputed land. Here in this case the order of the Anchal Adhikari was upheld and it was settled that if the delivery of possession was given the same will be given by the procedure of C.P.C. Further kindly be dismissed.” 7. It is evident on a perusal of the impugned order that the mortgagee handed over possession of the land in question soon after the order of the learned Anchal Adhikari. In other words, the mortgagee remained in possession of the land in question for 14 years. This is sufficient compensation to the mortgagee for a sum of Rs.5,000/-. The spirit of the Act is that poor persons of the countryside in Bihar should be protected from the oppression of moneyed people. The object of the Act was considered by a learned Single Judge of this Court in the case of Janardan Choudhary and another Vs. Hridya Narain Choudhary and others, 1995(1) P.L.J.R. 564. Paragraph nos. 16 and 17 of the said judgment are reproduced hereinbelow: “16. Before interpreting section 12 of the Act it is better to recollect certain relevant principles of interpretations. In these matters the duty of judicature is to act upon the true intention of the legislature „the mens or Sententia Legis‟ (see Salmond‟s 6 Jurisprudence 11th Edition page 52.). In other words the Anumus Impotentis‟ the intention of the law givers has to be ascertained. The object of the Bihar Money Lenders Act, 1974 is the regulation of money lending transactions and to grant relief to debtors in the State of Bihar. The provisions of the Act particularly section 12, and other relevant provisions have been enacted to grant relief to debtors. A debtor has most humble standing at the lowest ladder of Indian society. The unfortunate plight of Indian society is that a section of the people are placed socially and economically at a disadvantage and land themselves in debt. The State Legislature by fulfilling its obligation brought the Act on the statute book with the object to grant relief to debtors. It is a benevolent and social beneficient legislation. Whereever there is such legislation, i.e. section 12 of the Act, it has to be interpreted with the dominant purpose for which it was enacted. 17. In the backdrop of these salutary principles of interpretation, section 12 of the Act may be interpreted. It indicated the transaction of mortgage is automatically satisfied and redeemed on expiry of 7 years from the date of execution of the mortgage. The later part of the section gives a right to the mortgagor to recover the possession from the usufructuary mortgagee. There would be no necessity of making payment of 7 mortgaged money and the possession with the usufructuary mortgagee would be given back to the mortgagor. In the present case also as the plaintiffs-respondents 1 and 2 were mortgagees in respect of all the mortgage deeds, consequently they have no right to retain the possession of the land mortgaged but they are bound to deliver the possession immediately after the enforcement of the Act to the mortgagor. It is needless to emphasize that there is no estoppel against statute. A similar view was taken in Shiv Kumar Singh v. Mahesh Prasad and another (supra) relied upon by the learned counsel for the appellants.” 8. Thus, the loan amount was a mere Rs.5,000/-, the mortgagee remained in possession of the land for 14 years, and the mortgagor is in possession of the land since 1988. The cumulative effect of the circumstances is that it would be in the interest of justice to dismiss this writ petition. 9. This writ petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. J.N. Singh, J.I agree. High Court Patna, Dated 9th August,2010 Vinay/N.A.F.R. ( S. K. Katriar,J. ) (J.N. Singh, J.)