Ahmadhussain Gousmohaddin Peerajade vs Deputy Commissioner, Belgaum and Others

This petition under Articles 226 and 227 of the Constitution of India arises from the order dated 23-2-1993 passed by the 1st respondent-The

Deputy Commissioner, Belgaum District, Belgaum, in No. RB.KDR.RA. 1 of 1992-93, whereby the Deputy Commissioner had set aside the

order dated 9-7-1992 passed by the Taluk Executive Magistrate, Gokak, in the matter of proceedings u/s 5 of the Karnataka Debt Relief Act,

1980. The Taluk Executive Magistrate rejected the application on the ground that the debtor has not appeared before him and held that the

applicant before him failed to make out a case that he is a debtor.

Feeling aggrieved from the order dated 9-7-1992 of the Taluk Executive Magistrate the respondent filed appeal before the Deputy

Commissioner, Belgaum. The Deputy Commissioner observed that it is an undisputed fact that the applicant before him i.e., the father of

respondents 3 to 5 borrowed a sum of Rs. 2,000/- some time in the year 1969, in lieu of the said transaction whereunder he had mortgaged the

disputed land in favour of the respondent i.e., writ petitioner herein. He observed that the question before him is whether the petitioner before him

i.e., the father of respondents 3 to 6 were entitled to the reliefs. The Deputy Commissioner opined that the Certificate of income issued by the

Taluk Executive Magistrate to the effect that the claimant before him belonging to the weaker sections of people within the meaning of the

Karnataka Debt Relief Act and the certificate did hold good. He held that the burden was on the creditor to prove that the petitioner before the

Deputy Commissioner was not entitled to the relief, which burden the creditor has failed to discharge and so in view of the certificate issued by the

Taluk Executive Magistrate, it held that the petitioner before it i.e., the father of respondents 3 to 6 was entitled to the reliefs. So he allowed the

application and directed the creditor, who was respondent before it, whereby the land bearing S. No. 57/2 of Patagundi Village in Gokak Taluk

belonging to the petitioner and which has been under mortgage of the respondent should be restored back to the petitioner.

Feeling aggrieved by the order dated 23-2-1993 passed by the Deputy Commissioner, Belgaum, the creditor has come up before this Court by

way of writ petition under Articles 226 and 227 of the Constitution of India.

I have heard Sri N.S. Bhat, holding brief for Sri R.B. Deshpande, learned Counsel for the petitioner, Sri Lohit Anand, holding brief for Sri

Jayakumar S. Patil, learned Counsel for respondents 4 to 6 and Sri V. Jayaram, learned Government Advocate for respondents 1 and 2.

The learned Counsel for respondents 4 to 6 contended that the debtor is entitled to move u/s 5 of the Karnataka Debt Relief Act, 1980 for

direction from the Assistant Commissioner to the creditor to grant reliefs mentioned in Section 5(2)(b) of the Karnataka Debt Relief Act, 19.80.

He submitted that in view of the provisions of Section 6, the burden was on the creditor to prove that a person moving the application u/s 5 is not a

debtor and therefore there was no illegality in the order of the Deputy Commissioner.

The learned Counsel for respondents has raised one more contention that really the revisional authority without jurisdiction has proceeded as

Court of appeal. He submitted that in the earlier Writ Petition No. 18141 of 1987, decided on 14th June, 1990, this Court had given direction that

the creditor should be given opportunity to cross-examine before the matter is decided and a certificate by itself is not taken to be the conclusive

proof.

I have applied my mind to the contentions raised by the learned Counsels appearing for the parties.

It is only a debtor, who is entitled to move u/s 5 of the Karnataka Debt Relief Act, 1980. Section 5(1) provides that a debtor referred to in

clause (1) of Section 3, may (on or before 31st December, 1981) make an application to the Assistant Commissioner having jurisdiction over the

area within which the mortgaged property is situate for an order releasing the mortgaged property and for the grant of a certificate of redemption.

Section 5(2)(a) provides that on receipt of such an application and after such enquiry as he considers necessary, the Assistant Commissioner shall

pass an order releasing the mortgaged property and grant a certificate of redemption in the prescribed form which shall, notwithstanding anything

contained in any law be admissible as evidence of such redemption in any proceeding before any Court or other authority. Section 5(2)(b)

provides that the Assistant Commissioner shall also direct the creditor to deliver possession of the mortgaged property to the debtor on or before

the dates specified in the order if the debtor is not already in possession of the mortgaged property and to produce on or before the date specified

in the order, the mortgaged deed or other document and on such production the Assistant Commissioner shall make an endorsement of

redemption on the mortgage deed or other document and forward a copy of the said endorsement to the concerned Sub-Registrar who shall,

notwithstanding anything contained in any other law register the same. Section 5(2)(3) provides that pending orders under clause (a) of sub-section

(2), no creditor shall transfer or otherwise assign his interest in or exercise his right of foreclosure in respect of the property mortgaged by the

debtor or his surety. Section 6 is very important section in this regard, which provides as to on whom the burden of proof lies. It will be

appropriate to refer and quote Section 6 of the Karnataka Debt Relief Act, 1980, which reads as under:

Burden of proof, etc.--(1) If in any suit or other proceeding in a Court a question arises whether a party thereto is a debtor under this Act, the

Court trying the suit or other proceeding shall frame a preliminary issue, as to whether such person is not a debtor under this Act and shall decide it

before other issues are considered.

Sub-section (2) of Section 6 provides that ""notwithstanding anything in any law, the burden of proving that a person is not a debtor under this Act

shall be on the creditor"".

A reading of this section per se reveals that if the creditor challenges the identity of the person making application to be a debtor and alleges that

he is not a debtor, that question has to be decided and the burden of proving that the person moving the application is not a debtor lies on the

creditor. Thus it is the creditor on whom the burden lies to prove that the applicant is not a debtor under and for the purpose of this Act. It will be

appropriate at this juncture to refer to the definition clause. Section 2(6) reads as follows;

""Debtor"" means a person who is:

(i) a landless agricultural labourer; or

(ii) a person belonging to the weaker section of the people; or

(iii) a small farmer; and from whom a debt is due"".

In order to examine whether a person is a debtor or not, we have to look into that the person concerned belongs to either of the categories

and that debt must be due on him. The expression ""weaker section of people"" has been defined in sub-section (11) of Section 2 of the Karnataka

Debt Relief Act, 1980. ""Weaker section of people"" means persons whose annual income from all sources does not exceed four thousand and eight

hundred rupees, provided that a person shall not be deemed to belong to the weaker section of the people if:

(i) he or his family has in both the two years immediately preceding the First day of April, 1979, been assessed to property or house tax in respect

of buildings or lands, other than agricultural lands, under the Karnataka Municipal Corporations Act, 1976 (Karnataka Act 14 of 1977), the

Karnataka Municipalities Act, 1964 (Karnataka Act 22 of 1964), the Karnataka Village Panchayats and Local Boards Act, 1959 (Karnataka Act

10 of 1959), or any law governing the municipal or local bodies anywhere in India provided that the aggregate annual rateable value of such

buildings or land whether let out or in the occupation of the owner, is not less than two thousand four hundred rupees; or

(ii) he and members of his family own immovable property anywhere in India the market value of which is not less than ten thousand rupees.

The burden is on the creditor to prove that the applicant is not a debtor within the meaning of Section 5, he has to establish either of the two

things: that the debtor is not a landless agricultural labourer or that the debtor does not belong to the weaker section of the people nor a small

farmer and to show that a person moving the application does not belong to the weaker section of the people, he has to establish by positive

evidence that the income of such person exceeds the limit of four thousand eight hundred or he may prove a case under proviso to Section 2(1) of

the Act. The burden of proof has been placed on the creditor to establish it. No doubt when the creditor has produced some evidence, onus may

shifts on to the applicant to produce some evidence oral or otherwise to prove his position. This is the position of law.

It appears that the Taluk Executive Magistrate, who comes within the framework of the Assistant Commissioner ought to have framed the

issue, fixed the case for evidence giving opportunity to the parties to produce evidence. No issue in this regard appears to have been framed by the

Taluk Executive Magistrate. This was an illegality committed by the Taluk Executive Magistrate. If the creditor has raised objection that the

applicant before the Taluk Executive Magistrate did not come within the purview of debtor, it was his duty to have framed the issue whether the

creditor proves that the applicant is not a debtor within the meaning of the Karnataka Debt Relief Act, 1980. It appears that the Taluk Executive

Magistrate had not applied his mind to the provisions of Section 6 of the Karnataka Debt Relief Act, 1980. Section 6 provides that the Court

trying the suit or other proceeding shall frame a preliminary issue as to whether such person is not a debtor under this Act. This obligatory duty has

not been followed by the Assistant Commissioner i.e., Taluk Executive Magistrate. No doubt there was illegality as such the Revisional Court had

set aside the order of the Taluk Executive Magistrate and after framing the issue the Revisional Court should have remanded the case for trial of

that preliminary issue giving opportunity to the parties to lead evidence. The non-framing of the issue by the Assistant Commissioner as well as

Deputy Commissioner and failure to remand the case to the Assistant Commissioner for decision afresh of the case according to law appear to

have resulted in irregular and illegal exercise of power having tendency to cause injustice. No doubt burden is on the creditor to prove that the

applicant u/s 5 of the Karnataka Debt Relief Act, is not a debtor. The applicant is expected to state on oath that he belongs to the weaker section

of the people and that his annual income is less than what is prescribed under the Act i.e., rupees four thousand eight hundred. There being no issue

framed, the applicant himself did not appear. In this view of the matter, I find the entire proceedings are vitiated by error of law amounting to illegal

exercise of jurisdiction vested in it. Both orders of the Taluk Executive Magistrate and the Appellate Authority have to be quashed and the matter

remanded for decision afresh. As the matter has been a old one pending since 1981, it is directed that the Taluk Executive Magistrate will

expeditiously decide the matter after framing the issue and after giving opportunity to both parties to lead evidence as well cross-examine the

witnesses.

The writ petition is allowed and the impugned orders dated 9-7-1992 (Annexure-D) and dated 23-2-1993 (Annexure-E) passed by the Taluk

Executive Magistrate, Gokak and the Deputy Commissioner, Belgaum, respectively are hereby quashed.

The Assistant Commissioner Taluk Executive Magistrate concerned is hereby directed to decide the matter keeping in view the provisions of

Sections 5, 6 and 11 of the Karnataka Debt Relief Act, 1980 and the observations made above and dispose of the application expeditiously

according to law at the earliest in every case not more than nine months period from the date of the communication of this order by the parties or

by this Court whichever is earliest.

Let a writ of mandamus be issued to respondents 1 and 2 to the above effect. Costs of this petition are made easy.