(Hemant Gupta and V. Ramasubramanian, JJ.)
Chherku Ram and Others _________________________ Appellant(s);
v.
Sanjay Kumar Bajpai and Others _________________ Respondent(s).
Civil Appeal No. 1229 of 2022 (@ SLP(C) No. 21119 of 2015), decided on February 8, 2022
The Order of the court was delivered by
Order
1. Leave granted.
2. The challenge in the present appeal is to an order passed by the High Court of Chhattisgarh at Bilaspur on 19.03.2015 whereby an order passed in the writ petition filed by the respondents before the Single Judge was not interfered with by the Division Bench in an intra court appeal.
3. It was in the year 1961 that one Sibo Mochi purchased land admeasuring 6.31 acres in Village Lavan, Chhattisgarh for a consideration of Rs. 3400/- vide two registered sale deeds. However, on 26.12.1962, a conveyance deed of the land admeasuring 4.31 acre was executed in favour of Mangalacharan for a consideration of Rs. 800/-. Another conveyance deed for land admeasuring 2 acres was executed on 09.04.1963 in the favour of Mangalacharan for a consideration of Rs. 600/-. It is the case of the appellants that these transfers were by way of security against loan. Sibo Mochi died in 1975-1976. The appellants sought to assert rights as owners but the same was not accepted.
4. The State of Madhya Pradesh enacted Madhya Pradesh (Protection and Impunity of Agricultural Land Holders of Weaker Section of Society from Conspiring of Usurping Land by Money Lender) Act, 1976 (for short, ‘the 1976 Act’) to protect the persons belonging to the weaker section of the society.
5. Mangalacharan died in the year 1980. It was thereafter, Dhan Bai, wife of Late Sibo Mochi filed an application under Section 5 of the 1976 Act on 19.12.1981 before the Sub Divisional Officer as the prescribed authority under the 1976 Act. Such application was dismissed on 18.09.1987.
6. In an appeal preferred by Dhan Bai, the Additional Collector inter alia held on 06.07.1988 that the land was purchased two years back for Rs. 3400/- but sale for a mere sum of Rs. 1400/- after two years was the case of a mortgage and not sale. The Additional Collector held as under:—
“…………It is an admitted fact that the land in question was purchased by the husband of the appellant in 1961 for Rs. 3400/- and in 1963 the same land was sold to Manglacharan father of the respondent for merely Rs. 1400/- through the so called sale deed. It is also an admitted fact that in the last 50 years generally the price of land has increased every where, not decreased therefore whatever might have been the circumstances no proprietary is seen in selling the land of the price of Rs. 3400/- for Rs. 1400/- and there is no such evidence in the case at all. Not only this according to the calculation of prevailing market price of the land got done by the learned Sub Divisional Officer the price of the land at that time was Rs. 339/- per acre the fair price of the disputed land at the said rate works out to 2140/- but the Ld. Sub Divisional Officer thoroughly ignored this. Hence, only with this – I arrive at the conclusion that in fact the disputed land was not purchased rather was only mortgaged for Rs. 1400/- and since there are many legal hurdles in mortgaging therefore directly sale deed of it was got written the Ld. Sub Divisional Officer did not appreciate this documentary evidence properly……”
7. It was, thereafter, the respondent – predecessor in the interest of the respondent filed a suit for injunction claiming that he was being sought to be evicted from the disputed land by the defendants – the present appellants. The said suit was dismissed on 04.10.1993. The first appeal was dismissed on 15.03.1994. The second appeal was dismissed on 28.07.2011 and Special Leave Petition (C) No. 9300/2021 was dismissed on 02.04.2012.
8. It was, thereafter, the respondents filed a writ petition before the High Court challenging the order dated 07.06.1988 passed by the Additional Collector. It appears that challenge was only on the ground that the appointed date in terms of Section 2 of 1976 Act was 01.01.1971 but the transaction was of the year 1962-1963. Therefore, such transaction of sale cannot be made subject matter of challenge under 1976 Act. The said writ petition was allowed by the Single Bench on 12.12.2014. The intra court appeal was dismissed on 19.03.2015 which is the order impugned in the present appeal.
9. Mr. Jain, learned senior counsel for the appellants argued that the finding recorded by the Additional Collector is that it was not a sale but a mortgage. Such finding has not been set aside either by the Civil Court or by the High Court in the writ petition filed after the dismissal of the Special Leave Petition. The only ground of challenge was that the transaction in question is prior to the appointed date, therefore, not covered by the provisions of Section 5 of the 1976 Act. Mr. Jain has referred to Section 4 of the 1976 Act which reads thus:
“4. All prohibited transactions of loan to be subject to protection and relief under this Act-
It is hereby declared that all claims in relation to a prohibited transaction of loan subsisting on the appointed date or entered into thereafter but on or before the date of publication of this Act in the gazette shall, notwithstanding anything contained in the code or any other enactment for the time being in force or any decree or order, if any of any court or authority be subject to protection and relief in accordance with the provisions of this Act”.
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.”
10. Relying upon the said provision, it was argued that since the authority under the 1976 Act has found that it is not a case of sale but of mortgage, therefore, it is a case of subsisting transaction of loan. Once a mortgage always a mortgage is the principle which would be applicable, thus the appointed date has no relevancy to oust the jurisdiction of the authority under the 1976 Act. Reliance is placed on the judgment of this Court reported in Singh Ram v. Sheo Ram, (2014) 9 SCC 185.
11. Mr. Abhinav Shrivastava, learned counsel appearing for the respondents-writ petitioners submits that the Civil Suit was dismissed only on the ground that it has no jurisdiction in view of Section 14 of the 1976 Act. Therefore, the dismissal of suit seeking injunction will not have any bearing on the transaction in question. Since the transaction is prior to the appointed date, therefore, the Writ Court has rightly held that the Act does not have retrospective operation and the appellants are not entitled to avoid the transaction executed prior to the commencement of the 1976 Act.
12. We have heard learned counsel for the parties and find that the order of the High Court holding that the transaction is not open to challenge in view of the fact that the Act has no retrospective effect is not tenable.
13. The Additional Collector has returned a categorical finding that it is not a transaction of sale but a transaction of mortgage. The mortgage was subsisting on the appointed date. Therefore, the mortgagor has the right to avoid the transaction by virtue of the provisions of the 1976 Act. The finding recorded by the Additional Collector that the transaction is a mortgage was not set aside by the High Court. The finding recorded by the Additional Collector has attained finality. Therefore, there was a subsisting transaction of mortgage on the appointed date. Thus, the Writ Court has gravely erred in law in holding that the 1976 Act is not applicable to the transaction in question.
14. Consequently, the present appeal is allowed. The order passed by the Writ Court on 19.03.2015 is set aside. The writ petition is dismissed. It shall be open to the appellants to take possession of the land after payment of the mortgage in accordance with law.
15. Pending application(s), if any, also stand disposed of.
———
