Mangilal vs State of M.P. and Others

N.K. Mody, J.—Being aggrieved by the order dated 20-7-2009 passed by Collector, Mandsaur in Case No. 40/Appeal/08-09, whereby order dated 15-4-2009 passed by SDO, Sitamau in Case No. 12/B121/08-09, whereby application filed by the petitioner under Sections 5 and 6 of Madhya Pradesh Samaj Ke Kamjor Vargon Ko Udhar Dene Walo Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (which shall be referred hereinafter as "an Act") was dismissed, was maintained, present petition has been filed. Short facts of the case arc that on 7-8-2008, petitioner filed an application before the respondent No. 2 under Sections 5 and 6 of the Act alleging that the petitioner is owner of the land bearing survey Nos. 351, 352, 442 situated at Village Mundla Fauzi, Tehsil Sitamau, Distt. Mandsaur. It was alleged that, since the petitioner was in need of money, therefore, against the loan transaction of Rs. 75,000/- the sale deed was got executed from the petitioner by the respondent Nos. 3 and 4 on 6-7-2006. It was alleged that in fact it was only Rs. 18,000/-, which was received by the petitioner. It was alleged that the petitioner is cobbler by caste and is also from below poverty line. It was prayed that the application filed by the petitioner be allowed and the sale deed dated 6-7-2006 be quashed. The application was contested by the respondent Nos. 3 and 4 on various grounds including on the ground that it was out and out sale and the respondent Nos. 3 and 4 are the bonafide purchasers and has paid full consideration of Rs. 75,000/-. It was alleged that, since no other document was executed at the time of execution of sale deed, therefore, the application filed by the petitioner be dismissed. After hearing the parties at length by the impugned order SDO, Sitamau dismissed the application, against which an appeal was filed, which was also dismissed, hence this petition.

Learned Counsel for the petitioner argued at length and submits that the impugned orders passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that no enquiry was held by the Competent Authority to reach to the conclusion that the transaction was out and out sale. It is submitted that only on the ground that no other document was filed by the petitioner about the agreement relating to resell of the property, it was held that the transaction was bonafide and was out and out sale. It is submitted that in the facts and circumstances of the case petition filed by the petitioner be allowed and the impugned orders passed by the learned Courts below be set aside.

Learned Counsel for respondent Nos. 3 and 4 submits that a satisfaction has to be drawn by the Competent Authority about the genuineness of the transaction. It is submitted that in a summary enquiry, it is not necessary in every case to record evidence. It is submitted that after drawing the satisfaction, Competent Authority dismissed the application, which has been maintained in appeal, hence the petition filed by the petitioner deserves to be dismissed. It is submitted that the petition be dismissed.

The Act came in force w.e.f. 22-1-1977. Section 2 of the Act lays down the definitions. Sub-section (f) of Section 2 of the Act defines prohibited transactions, which reads as under:--

(f) ''prohibited transaction of loan'' 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 the time of advancing the loan or at any time thereafter during the currency of the loan in any of the following modes, namely:--

(i) agreement to sell land with or without delivery of possession;

(ii) outright sale of land with or without delivery of possession accompanied by separate agreement to resell 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 if the loan is repaid;

(iv) outright sale of land with or without delivery of possession with a condition incorporated in the sale deed to resell it on repayment of the loan;

(v) transaction in any modes other than those specified in clauses (i) to (iv) affecting interest in land including a fraudulent 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 to wards satisfaction of loan;

words and expressions used but not defined in this Act and defined in the Code or the Transfer of Property Act, 1882 (No. IV of 1882) shall have the meaning respectively assigned to them in the Code or the Act, as the case may be.

As per sub-clause (iii) of clause (f) of Section 2 of the Act outright sale of land with or without delivery of possession with a distinct oral understanding that the sale shall not be acted upon if the loan is repaid, is covered under the definition of prohibited transactions.

It is true that upon an application filed u/s 5, enquiry has to be conducted by the SDO u/s 6 of the Act. As per sub-section (1) of Section 6 of the Act the SDO has to ascertain whether the transaction of loan is a prohibited transaction of loan and on being satisfied that Section 4 applies to such transaction, he shall, after recording his opinion therefor, proceed to conduct an enquiry. As per sub-section (3) of Section 6 of the Act SDO has to give a personal hearing and may if necessary has to examine all the interested parties to elucidate information relevant to the transaction of loan. While conducting the enquiry, the SDO has to ascertain the amount of principal money, market value of the land at the time of the transaction, adequacy of the amount of principal money as consideration for sale in the context of then market value under clause (ii), whether the consideration shown in the document was paid in whole or in part privately or before the Sub-Registrar, 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, what were the terms of the actual agreement between the lender of money and the holder of agricultural land including the rate of interest, the extent of urgency for the loan and the availability of other sources to the holder of agricultural land to obtain the same, payment, if any, made by the holder of agricultural land to the lender of money towards the loan, whether the lender of money is registered money lender or not and any other surrounding circumstances, which the Sub-Divisional Officer may deem fit to consider.

From perusal of the record, it is evident that SDO was impressed with the fact that the sale deed, which is in favour of respondent Nos. 3 and 4 is a registered sale deed and attested by two witnesses. Since the allegation of the petitioner was that at the time of execution of sale deed of Rs. 75,000/-, it was only Rs. 18,000/-, which were paid, therefore, to ascertain that aspect of the case, it was necessary for the SDO to record the evidence. In the present case, reply was filed by the respondent Nos. 3 and 4 on 18-3-2009, while the order impugned has been passed on 15-4-2009, which prima facie shows that no evidence was recorded at the relevant time. In the facts and circumstances of the case, in the opinion of this Court the order passed by SDO and by the Appellate Authority cannot be allowed to sustained. In view of this, petition filed by the petitioner is allowed and the impugned orders are set aside and the case is remanded to the learned SDO to redecide the application filed by the petitioner after giving an opportunity to the parties to adduce the evidence and to ascertain the factual position as directed in sub-section (4) of Section 6 of the Act. Parties are directed to remain present before the Competent Authority on 16-4-2012. With the aforesaid observations, petition stands disposed of.

No order as to costs.