High Court
Legal Reasoning
1 WP.14389-19 & ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.14389 OF 20191.Parbata Jija Pote,Died through Lrs.1A. Muktabai Uddhav Aghav,Age: 70 yrs, Occ: Household,R/o: Khairi, Tal- Selu, Dist-Parbhani.1B.Sumitrabai Dashrath Ghule,Age:38 yrs, Occ: Household,R/o: Taltumba,Tal- Selu, Dist-Parbhani.1C. Kausabai Balasaheb Bade,Age: 65 yrs, Occ: Household,R/o: Kasari, Post- Tambwa,Tal- Dharur, Dist- Beed.1D. Mahadeo Parbata Pote,Age: 50 yrs, Occ: Agri,R/o: Raigavhan,Tal- Partur, Dist- Jalna.… Petitioners.VERSUS1. State of Maharashtra,Through its Principal Secretary,Co-operative, Marketing andTextile Department,Mantralaya, Mumbai-32.2.The Registrar General of Money Lendersand Registrar of Co-operative Societies,Maharashtra State, Pune.3. The Divisional Joint Registrar,Co-operative Societies,Aurangabad-Division, Aurangabad.4. The District Deputy Registrar,Co-operative Societies, Jalna andDistrict Registrar of Money Lending, Jalna.5. Assistant Registrar,Co-operative Societies,Tal- Partur, Dist- Jalna. 2 WP.14389-19 & ors.odt6. Baliram Ashroba Kadape,Age: 53 yrs, Occ: Business,R/o: Raigavhan, Tal- Partur, Dist- Jalna.7. Vijay Baliram Kadape,Age: Major, Occ: Business,R/o: Raigavhan, Tal- Partur,Dist- Jalna.… Respondents.WITHWRIT PETITION NO.14387 OF 2019Murlidhar Ganpati Kekan,Age: 65 yrs, Occ: Agri,R/o: Raigavhan,Tal- Partur, Dist- Jalna.… Petitioner.VERSUS1. State of Maharashtra,Through its Principal Secretary,Co-operative, Marketing andTextile Department,Mantralaya, Mumbai-32.2.The Registrar General of Money Lendersand Registrar of Co-operative Societies,Maharashtra State, Pune.3. The Divisional Joint Registrar,Co-operative Societies,Aurangabad-Division, Aurangabad.4. The District Deputy Registrar,Co-operative Societies, Jalna andDistrict Registrar of Money Lending, Jalna.5. Assistant Registrar,Co-operative Societies,Tal- Partur, Dist- Jalna.6. Baliram Ashroba Kadape,Age: 53 yrs, Occ: Business,R/o: Raigavhan, Tal- Partur, Dist- Jalna.7. Walmik Baliram Kadape,Age: 34 yrs., Occ: Business,R/o: Raigavhan, Tal- Partur, 3 WP.14389-19 & ors.odtDist- Jalna.… Respondents.WITHWRIT PETITION NO.254 OF 20201.Baliram Ashroba Kadape,Age: 53 yrs, Occ: Agri. and Business,R/o: Rayghavan, Tal- Partur, Dist- Jalna.2.Vijay Baliram Kadape,Age: 30 yrs., Occ : Agri. and Business,R/o As above. … Petitioners.VERSUS1. State of Maharashtra,Through its Principal Secretary,Co-operative Department,Mantralaya, Mumbai-32.2.The Registrar General of Money Lenders,The Commissioner & Registrar ofCo-operative Societies Department,Maharashtra State, Pune.3. The Divisional Joint Registrar,Co-operative Societies,Aurangabad.4. The District Deputy Registrar,Co-operative Societies, Jalna andRegistrar of Money Lending,Jalna, Dist. Jalna.5. Parbata Jija Pote,Died through Lrs.5A. Muktabai Uddhav Aghav,Age: 70 yrs, Occ: Household,R/o: Khairi, Tal- Selu, Dist-Parbhani.5B.Sumitrabai Dashrath Ghule,Age:38 yrs, Occ: Household,R/o: Taltumba,Tal- Selu, Dist-Parbhani.
Legal Reasoning
4 WP.14389-19 & ors.odt5C. Kausabai Balasaheb Bade,Age: 65 yrs, Occ: Household,R/o: Kasari, Post- Tambwa,Tal- Dharur, Dist- Beed.5D. Mahadeo Parbata Pote,Age: 45 yrs, Occ: Agri,R/o: Raigavhan,Tal- Partur, Dist- Jalna.… Respondents....Advocate for Petitioners in WP/14387/19, WP/14389/19 andRespondent No.5A to 5D in WP/254/20 : Mr. Abhijit C.Darandale.Advocate for Petitioners in WP/254/20 and Respondent Nos.6and 7 in WP/14387/19, WP/14389/19 : Mr. M. S. Karad h/fMr. S. S. Thombre.AGP for Respondents/State: Ms. R. R. Tandale.…CORAM : S. G. MEHARE, J.RESERVED ON : 28.02.2024PRONOUNCED ON : 24.04.2024JUDGMENT :- 1.Rule. The Rule is made returnable forthwith and heardfinally by the consent of the parties.2.The petitioners, the landlords, in Writ Petition No.14387/2019 and Writ Petition No.14389 2019 have impugnedthe judgment and order of Respondent No.2 passed in RevisionPetition Nos.20/2019 dated 16.09.2019 and 32/2019 dated16.11.2019, respectively, against the respondent, the allegedMoney lender. 5 WP.14389-19 & ors.odt3.The petitioners, the alleged money lender in WritPetition No.254/2020, has impugned the judgment and orderof Respondent No.2 passed in Revision Petition No. 32/2019dated 16.11.2019 against the petitioners in Writ Petition No.14389/2019.4.The landlords had filed the complaints against thealleged moneylenders under Section 18 of the MaharashtraMoney Lending (Regulation) Act, 2014 ( for short, 'Act of2014'). In brief, the allegations against the alleged moneylender were that they were in need of money. Therefore, theyraised the loan on interest from alleged money lenders andexecuted sale deeds of their lands towards the security of theloan on 08.07.2002 and 22.11.2005, respectively. They repaidthe loan and requested the alleged money lenders to re-transfer the lands, but they avoided it. They were engaged inillegal money lending and had purchased around 700 acres ofland. They had re-transferred a few of the lands to theborrowers. They gave a big list of the transactions of moneylending. They repaid the loan with a heavy rate of interest.They threatened the landlords that unless they paid the loanmoney, they would not re-transfer the land to them. They arepolitical leaders. 6 WP.14389-19 & ors.odt5.On the complaint, respondent No.1 made an inquiry andvisited the houses, shops, and other places of the allegedmoneylenders. Respondent No.4 made the inquiry throughAssistant Registrar Co-operative Societies, Partur. He submittedhis inquiry report to him and found 36 documents of saledeeds, bonds, 7/12 extracts etc. He recorded the statements of30 persons. Out of them, eight persons supported theallegations of money lending, and 27 denied that they had amoney lending business or transaction with them. Afterreceiving the detailed report, respondent No.3 gave both sidesan opportunity and concluded that the alleged moneylendersengaged in illegal money lending transactions by his orderdated 27.03.2018. The alleged moneylenders, had assailed thesaid orders of respondent No. 4 by way of appeal underSection 18(4) of the Act of 2014 to respondent No.3.Respondent No.3 allowed the appeal and quashed and setaside the order of respondent No.4. Against the said order, thepresent petitioners had filed the revision applications underSection 9 of the Act of 2014. Respondent No.2 quashed and setaside the order of respondent No.3 and remitted the matter torespondent No.4 for fresh inquiry on merits. 7 WP.14389-19 & ors.odt6.The stand of the alleged moneylenders was that theywere not engaged in illegal moneylending. They werepurchasing land by paying the consideration as per theagreement. They never charged the interest. The so-calledevidence collected against them was insufficient to believe theywere the illegal money lenders. They had filed a civil suitNo.315 of 2017 against petitioners. Transactions were genuineand consensual. The petitioners' applications were barred bylimitation. They have had no sale purchase transactions from2012 to 2016. There was no evidence to establish that theywere engaged in illegal money lending. The landlords also didnot produce evidence of paying the interest. Respondent No.4,without inquiry, incorrectly concluded that they were engagedin illegal money lending. By order dated 09.02.2018 passed inCriminal Application No.3884 of 2017, the High Court quashedand set aside the crime registered on the complaint of thelandlords. The landlords cannot file a revision against thejudgment under Section 18(4) of the Act of 2014. Twenty-seven (27) persons did not support the allegations of moneylending. No reasons were mentioned in the impugned orderthat the alleged moneylenders were engaged in illegal moneylending. There is no evidence that the report of the AssistantRegistrar was served upon them. It is also not observed that 8 WP.14389-19 & ors.odtwho is in possession of the suit land. The order of the CivilCourt granting a temporary injunction has also been ignored.An opportunity was not granted to them to make a statementon 15 sale deeds found in his house search. 7.Both learned counsels for the landlords have argued atlength on facts. They emphasized the documents found in thecustody of the alleged moneylenders. They have argued that asufficient evidence was available before the Authorities toestablish that they were engaged in illegal money lending.There were a large number of complaints against them. Therewas an oral agreement to resale the suit lands on repaying theloan with interest. In 2015, the entire loan with interest waspaid. However, they refused to re-transfer the said lands. Theynever challenged the inquiry report of the Assistant Registrar.They had filed a simple suit for injunction, and a temporaryinjunction was prayed for. The impugned order is withoutreason. 8.Learned counsel for the alleged moneylenders hasvehemently argued that a civil suit was pending about the suitland. Only the Civil Court has the power to declare the saledeed null and void. When the Civil Suit is pending, The MoneyLending Registrar has no power to inquire into the Act of 2014. 9 WP.14389-19 & ors.odtThe report of the Assistant Registrar was not correct. Therespondents/landlord never impugned the sale deed of 2002and 2005 till 2016. Due to political rivalry, its validity waschallenged after eleven years. The inquiry under the Act of2014 is a summary inquiry. The authorities did not consider thefact that the FIR registered against the alleged moneylenderswas quashed and set aside, which affected the summaryinquiry. The sale deeds were genuine and not out of illegalmoney lending.9.Learned counsel for the alleged moneylenders furthervehemently argued that there is no pleading about the amountof loan or the mode of repayment of the loan. Only 8 personsout of 40 supported the petitioners. The Rule of the majorityought to have been applied. The petitioners did not lodge thereport from 2005 to 2016. Their silence speaks a lot that it wasnot a moneylending. Since the Act of 2014 was introduced andincluded the money lending against executing a sale deedtowards the security loan, a false complaint has been filed.There was absolutely no evidence of money lending. There wasno appropriate authorization for Parbata to file the complaint.Mahadeo was the witness to the sale transaction. It was purelya sale transaction. 10 WP.14389-19 & ors.odt10.Both learned counsels have argued on facts andemphasized a large number of sale transactions. However, theydid not seriously question the tenability of the revisionstenability under Section 9 of the Act of 2014.11.As far as the argument of learned counsel for allegedmoneylenders that a civil suit is pending, the inquiry underSection 18 of the Act of 2014 cannot be made is concerned;their suit was a simplicitor for injunction. The inquiry underSection 18 of the Act of 2014 is an independent inquiry, andthe Authorities have been appointed under the said Act toinitiate an action against the execution of the sale deed assecurity for a loan advanced by the money lender in the courseof money lending. It is not just a formal inquiry. The DistrictRegistrar has to satisfy that the immovable property came inpossession of the money lender as a security for a loan. Sub-section (2) excludes the other provisions of the law in force forthe time being to pass appropriate orders. In other words, itmay be said that there was a non-obstante clause in SubSection (2), and the powers have been conferred upon theDistrict Registrar to order the restoration of possession of theproperty to the debtor on recording the reasons and alsodeclared the instrument or conveyance as invalid. However, 11 WP.14389-19 & ors.odtbefore passing any order, the person against whom theallegations of illegal money lending have been leveled shall begiven an opportunity to state his objections. The law furtherprovides for appeal under Section 18(2) against the order ofthe District Registrar. As per Sub-Section 4 of Section 18, thejudgment of the Divisional Registrar in appeal is final. 12.Rule 17 of Rules 2014 provides for the procedure formaking an inquiry to deal with an application under Section18. The District Registrar or the inquiry officer has all thepowers of the Civil Court for the purpose of enforcing theattendance of any person and examining him on oath toascertain the nature of the transaction and, if required, anyadditional document on record he may proceed to order theconcerned to produce the record and documents. Theprovisions of the Acts and Rules of 2014 make it a completeCode. The said Act also has given the effect of the Division ofthe Registrar as if the so-called sale deed stands declaredinvalid and the order passed under Sub Section (2) of Section18 is executable in the same manner as if a decree passed bythe Civil Court. Therefore, the Court is not impressed upon theargument of the learned counsel for the alleged moneylendersthat the District Registrar has no power to make an inquiry 12 WP.14389-19 & ors.odtwhen the suit of the money lender for an injunction is pending.Filing the suit by the so-called borrower may have a differenteffect. 13.After having gone through the record and relevant lawprovisions, the Court believes that the issue of jurisdiction goesto the root of the matter. 14.The question is, "Has respondent No.2 revisionaljurisdiction against the judgment of respondent No.3 in anappeal under Section 18(4) of the Act of 2014?".15. It is not disputed that there was a large number of saledeeds executed in favour of the alleged moneylenders. Only 08vendors out of 40 alleged against the petitioners that theywere engaged in illegal money lending. However, such materialevidence was ignored. Section 9 of the Act of 2014 provides forrevisionary powers of the Registrar General/ respondent No.2,it reads thus :"9. The Registrar General may, suo motu or on anapplication, call for and examine the record of any enquiryor proceedings of any matter where the order has beenpassed or decision has been given by an officer subordinateto him, and no appeal lies against such decision or orderfor the purpose of satisfying himself as to the legality andpropriety of the decision or order and as to the regularity 13 WP.14389-19 & ors.odtof the proceedings. If during the course of such inquiry, theRegistrar General is satisfied that the decision or order socalled for should be modified, annulled or reversed, hemay, after giving a person likely to be affected thereby anopportunity of being heard, pass such order thereon as hemay seem just."16.Section 18(4) and (5) of the Act of 2014 provides for theappeal. The said Sub Section reads thus :"18 (4) Any person aggrieved by the order or decisionof the District Registrar under sub-section (2) may,within one month from the date of order or decision,appeal to the Divisional Registrar : Provided that the Divisional Registrar mayadmit the appeal after the expiry of the period of onemonth if the appellant satisfies him that he hadsufficient cause for not preferring the appeal withinthe period.(5) The order passed by the Divisional Registrar inappeal preferred under sub-section (4) shall be final.”17.Reading Sections 9 and 18(4) and 18(5), in no mannerof doubt, it could be understood that the revision lies onlyagainst the order or decision against which no appeal lies. Theappeal lies against the order of the Sub Registrar underSection 18(1) and (2), and the judgment of the AppellateAuthority is final. A bare reading of these two sections clearly
Decision
14 WP.14389-19 & ors.odtindicates that no revision would lie after passing the judgmentin appeal. On this sole ground, the impugned judgment andorder of respondent No.2 is liable to be quashed and set aside.The order without jurisdiction is non-est in the eye of law.Therefore, the findings recorded by Respondent No.2 werewithout jurisdiction has no force of law. Hence, they areentitled to be quashed and set aside. All these three petitionsare liable to be dismissed as the revisions were not tenable.Since the revisions were not tenable, the impugned orderswere void ab initio. Hence, quashed and set aside.18.For the above reasons, all the writ petitions standdismissed.19.Rule made discharged. 20. No order as to costs. (S. G. MEHARE, J.)...vmk/-