2009(2) ALL MR 523
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.R. DONGAONKAR, J.
Shriram S/O. Dariyaji Chopade Vs. State Of Maharashtra & Ors.
Writ Petition No.2787 of 2006
4th February, 2009
Petitioner Counsel: Shri. B. N. JAIPURKAR
Respondent Counsel: Shri. A. W. SONARE,Shri. M. L. VAIRAGADE
Bombay Money Lenders Act (1946), S.13-B - Jurisdiction of Authority under S.13-B of the Act - Authority is restrained from passing any order under S.13-B regarding possession of immovable property purchased through registered sale deed. 2007(3) ALL MR 275 - Rel. on. (Para 10)
"I- Issue appropriate writ, order or directions to the respondent Nos.1 & 2 thereby quash and set aside an impugned order dated 24-4-2006 passed by the (respondent no.2) - Assistant Registrar, Co-operative Societies at Risod, which is at Annexure : H to the petition.
II- Held and declared that an impugned order passed by the (respondent no.2) - Assistant Registrar, Co-operative Societies at Risod, is bad and illegal and without jurisdiction.
III- Stay the effect and operation of impugned order dated 24-4-2006 passed by the (respondent no.2) Assistant Registrar, Co-operative Societies at Risod, which is at Annexure : H during the pendency of this petition.
IV- Saddle the cost of the petition against the respondent.
V- Any other relief as this Hon'ble Court deems fit and proper in the facts and circumstances of the case"
3. It is the contention of the petitioner that the respondent no.2 had sold the disputed land by way of registered sale deed, dated 25-5-2005. However, later on, the respondent no.3 had approached to respondent no.2 under the provisions of the 13-B of the Bombay Money Lenders Act contending that the alleged registered sale deed dated 25-5-2005 is the nominal documents and the same were executed by respondent no.3 towards the security of the loan. Respondent No.2 had issued notice to the petitioner. After enquiry, allegedly, without giving proper opportunity to the petitioner, it was held that there was money lending transaction and the land was liable to be restored to respondent No.3. It is stated at the bar that the possession was also delivered to respondent no.3 by the respondent No.4. Petitioner seeks to challenge that order and claims the possession of the disputed land from the respondent No.3.
5. Later on this court by order dated 3-3-2008 observed that this matter was covered by the judgment of this court reported in 2007(3) ALL MR 275 (Ramesh Daulatrao Gawhale & others Vs. State of Maharashtra & others).
6. On perusal of the decision in 2007(3) ALL MR 275 (Ramesh Daulatrao Gawhale & others Vs. State of Maharashtra & others) it appears that it is a common judgment delivered in several petitions including Writ Petition No.2556/2006.
"15. All writ petitions are accordingly allowed. The orders passed by Authority under section 13-B of Act are quashed and set aside. Authority is restrained from passing any orders under section 13-B of the Act regarding possession of immovable properties purchased by petitioners through registered sale deeds. However, in the facts there shall be no order as to cost. Petitions allowed."
8. The learned A.G.P. has submitted that the said judgment is challenged by way of letters patent appeal and the matter is still pending. However, he fairly concedes that there is no stay to the effect, operation of the order in the Writ Petition No.2556/2006.
10. The writ petition is accordingly allowed. The order passed by the authority under section 13-B of the Bombay Money Lenders Act is quashed and set aside. The Authority is restrained from passing any order under section 13-B of the Act regarding possession of the immovable property purchased by the petitioner through registered sale deed. However, in the facts, there will be no order as to cost. Petition stands disposed of.