Raja Ram Singh vs The State of Bihar and Others

S. Sarwar Ali, J.—These seven writ applications are by the mortgagors. They have filed applications u/s 12 of the Bihar Money Lenders Act, 1974 (hereinafter referred to as the ''Act'') before the Collector. The mortgagees resisted the applications on the ground that they being small land-holders were exempted from the operation of section 12 of the Act by a notification No. S.O. 207 dated 13.2.1981 issued in exercise of powers u/s 3 of the Act. The objections of the mortgagees have been upheld. These writ applications are directed against the orders upholding the objections of the mortgagees. It may be stated that in two of the writ applications, namely, CWJC. Nos. 2969 and 2971 of 1981 the objections were filed before the issue of the notification and the rest of the applications have been filed after 13.2.1981. Before dealing with the contentions I may read the relevant provisions of the Act. Section 12 of the Act is as follows;--

.12. Notwithstanding anything to the contrary in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been fully satisfied and mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of execution of the mortgage bond in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules.

Section 3 of the Act deals with the power to exempt any class of moneylenders or any class of loans in the whole or any part of the State of Bihar from the operation of all or any of the provision of the Act. It was in exercise of the powers conferred u/s 3 of the Act that the notification dated 13.2.1981 was issued. After reciting the reasons for the issue of the notification it states that section 12 of the Act would cause hardship to small land-holders who advance loans on the usufructuary mortgage of agricultural land and after stating that the State Government considers it necessary to give relief to such small land holders from the operation of section 12 of the said Act, the notification recites that the Government is pleased to exempt all such mortgagee landholders holding 5 acres in certain parts of the State who advance loans on the usufructuary mortgage of agricultural land from the operation of section 12 of the Act, "from the publication of this notification in the Bihar Gazette.

Learned counsel for the petitioners contended that this notification which exempts small landholders, as stated in the notification, from the operation of section 12 of the Act is prospective. It does not apply to mortgages which stood redeemed by virtue of section 12 of the Act. So far as such mortgages are concerned, the notification is of no effect. In other words, it is only those mortgages which do not stand satisfied by virtue of section 12 of the Act that the notification applies. The counsels for the respondents on the other hand contends that as from the date of the notification no authority has power to give relief to persons whose cases have not yet been decided and as such if it is established that the mortgagee is a small land-holder as envisaged in the notification then the relief u/s 12 of the Act cannot be given to a person whose application is pending on the date of issue of the notification.

In my view, the contention raised on behalf of the petitioners has force and has to be accepted. Section 12 of the Act states that usufructuary mortgages shall be deemed to have been fully satisfied and the mortgage shall be deemed to have fully redeemed on the expiry of a period of seven years from the date of execution of the mortgage bond in respect of agricultural land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules. It would be thus seen that the mortgage stands redeemed and fully satisfied by the operation of this section on the expiry of seven years as mentioned in the section. It is not that any order has to be passed by any authority or any Court holding that the mortgage stands redeemed. The redemption takes place by operation of the provisions of law. Full effect has to be given to the said provision. In my view, therefore, if a period of seven years has expired from the date of execution of an usufructuary mortgage, the said mortgage stands redeemed and the mortgagee has a right to recover possession in the manner prescribed under the rules. The notification dated 13.2.1981 cannot have the effect of reviving the mortgage that stands redeemed by operation of law. The position is further strengthened by reference to the last portion of the notification (already quoted), and, therefore, I am of the opinion that the issue of the notification cannot have the effect of reviving the mortgage which stood redeemed by fiction of law created by section 12 of the Act.

The rules envisage that the mortgagor is entitled on the expiry of the period of mortgage as mentioned in section 12 of the Act to send a notice in the prescribed form requiring the mortgagee to deliver possession of the mortgaged property within thirty days from the date of notice. If on the expiry of the period of notice the mortgagee fails or refuses to deliver possession of the mortgaged property to the mortgagor, he is entitled to file on application before the Collector within whose jurisdiction the mortgaged property or any part thereof is situated to eject the mortgagee from the mortgaged property. On receipt of such an application the Collector should proceed as required in rule 10 and pass an appropriate order in writing to eject the mortgagee from the mortgaged property "and may put the mortgagor in possession and for that purpose he may use such force as may be necessary.

The contention of the respondents is that after the issue of notification an application under the rules cannot be filed, as there has been exemption from the operation of section 12 of the Act from the date of notification. The provision relating to recovery of possession would, therefore, be inapplicable from the date of issue of notification. In my opinion, the contention cannot be accepted. Section 12 of the Act is in two parts. The first part creates a legal fiction by which certain categories of mortgages are deemed to have been wholly redeemed. The second part indicates that the mortgagor is entitled to recover possession of the mortgaged land in the manner prescribed under the Rules. As soon as the mortgage stands redeemed, the right to recover possession, in accordance with the provisions of section 12, accrues to the mortgagor. The mere fact that there is delay in filing the application does not affect the right to recover possession by special procedure prescribed under the Rules. Since the exemption from the operation of section 12 of the Act is not available to the mortgagers in respect of mortgages that stand redeemed by fiction of law, there cannot be any denial of the benefit of special provisions regarding recovery of possession in relation to such mortgages which stand redeemed. There is, therefore, no illegality in the Collector entertaining an application under rules 9 and 10 of the Rules and taking action in accordance with Rules. For the reasons stated above, I am of the view that the impugned orders contained in annexure-5 to C.W.J.C. 2969 and 2971 of 1981 and annexure-3 to other writ applications are liable to be quashed, I would, accordingly, quash the same and direct that the Collector (under the Act) should now proceed to dispose of the applications of the petitioners in accordance with law.