Writ Petition No.599 of 2006,Writ Petition No.2159 of 2006,Writ Petition No.2345 of 2006,Writ Petition No.2390 of 2006,Writ Petition No.2429 of 2006,Writ Petition No.2556 of 2006,Writ Petition No.2580 of 2006,Writ Petition No.2684 of 2006,Writ Petition No.2882 of 2006,Writ Petition No.2961 of 2006,Writ Petition No.3004 of 2006,Writ Petition No.3062 of 2006,Writ Petition No.3063 of 2006,Writ Petition No.3079 of 2006,Writ Petition No.3112 of 2006,Writ Petition No.3212 of 2006,Writ Petition No.3387 of 2006,Writ Petition No.3796 of 2006,Writ Petition No.4165 of 2006,Writ Petition No.4236 of 2006,Writ Petition No.4299 of 2006

13th October, 2006

Petitioner Counsel: M. V. AMALE,V. G. WANKHEDE,C. A. JOSHI,V. M. DESHPANDE,ANIL S. MARDIKAR,N. P. DHOTE,N. R. BORKAR, K. S. MALOKAR,S. B. SOLAT,R. B. AGRAWAL,M. I. KHAN
Respondent Counsel: S. K. SABLE,R. L. KHAPRE,V. A. KOTHALE,O. Y. KASHID,P. CHANDEKAR,A. P. TATHOD,V. K. PALIWAL,AMOL MARDIKAR,A. M. GHARE,S. G. SHUKLA,LIYAKAT ALI,S. P. KSHIRSAGAR,SHAMAL KADU

Cases Cited:
State Vs. Devsi Dosa, 1960 N.L.J. 325 [Para 4,10]
Sarva Shramik Sangha Vs. M/s. Indian Smelting and Refining and Company Ltd., A.I.R. 2004 S.C. 269 [Para 4,10]
Collector, Varanasi Vs. Gauri Shanker Misra, A.I.R. 1968 S.C. 384 [Para 5,10]
M/s. Kamala Mills Ltd., Vs. State of Bombay, A.I.R. 1965 S.C. 1942 [Para 5,10]
Indian National Congress (I) Vs. Institute of Social Welfare, A.I.R. 2002 S.C. 2158 [Para 5,10]
Sona Chandi Oal Committee Vs. State of Maharashtra, 2005(5) ALL MR 277 (S.C.)=A.I.R. 2005 S.C. 635 [Para 7]
M.J. Brothers Vs. Amar Finance, 1991(1) L.J. Soft 54 : A.I.R. 1992 Bom. 1 [Para 7]
Bhanushankar Jatashankar Bhatt Vs. Kamal Tara Builders Pvt. Ltd., A.I.R. 1990 Bombay 140 [Para 7]
Janabai Raghunath Khomane Vs. Hirabai Malhari Atole, 2003(1) ALL MR 1073=2003(3) L.J. SOFT 100 [Para 12]

JUDGMENT

JUDGMENT :- In all these matters challenge is to the orders passed by Taluka Assistant Registrar of Moneylenders cum Assistant Registrar of Co-operative Societies under section 13-B(1) or his report under section 13-A of Bombay Moneylenders Act 1946, hereinafter referred to as Act. For the purposes of brevity, said officer is hereinafter referred to as Authority. By impugned orders the Authority has held that transfers or sale of agricultural fields were by way of security for money lending transactions without licence and hence those sale-deeds are found to be invalid and persons in possession have been called upon to handover the possession to the complainant/debtor or to deliver possession to the Authority itself. The challenge is on the ground of absence of jurisdiction in said Authority in all these matters. All the petitioners through their respective Counsel and also respective Counsel appearing for respondents or debtors requested the Court to hear the issue finally at admission stage itself. Learned AGPs representing said Authority and State Government in the matter however stated that in some matters instructions on facts are still awaited and they can assist the Court only on legal position. Accordingly, all matters were directed to be placed for consideration together. Then at the request of all Advocates a general notice was directed to be issued in daily cause list informing all interested Advocates about hearing of the matters and thereafter, issue of jurisdiction alone in all matters has been heard. It is admitted position that in all these cases the respective respondents have executed sale-deeds in favour of petitioners and the contention which needs to be considered is - Whether section 13-B permits Taluka Assistant Registrar of Moneylenders cum Assistant Registrar of co-operative societies i.e. Authority to deal with immovable properties and to ignore or nullify such a registered sale-deed and order the respective owners to deliver its possession back to its executors or to the Authority. In view of this admitted position as only question of law needs to be examined and section 13-B needs to be interpreted, it is not necessary for this Court to mention in detail the facts of each case. Accordingly "Rule" made returnable forthwith in all and all matters are heard finally by consent of all parties immediately. Parties have argued only on law-point.

2. For deciding the question only facts from one case need to be stated and then brief details of sale-deed and order in individual cases can be given in a chart. The facts are also required to be gathered from impugned order itself. I have selected Writ Petition 599/2006 for mentioning the facts because prima facie facts therein appear more in favour of respondents Nos.3 to 10 who allege to have borrowed money from petitioner. Order impugned therein is dated 2-12-2005 and all 8 respondents have sold their field properties to petitioner. All of them have deposed accordingly before respondent No.2 Assistant Registrar functioning under Bombay Moneylenders Act or Act. It is also mentioned by all of them that though they have executed and registered sale-deed in favour of petitioner, they i.e. respondents are in possession of land sold and the revenue records also continue in their names and show their possession. It is also mentioned that they have cleared entire loan but petitioner has refused to re-convey the fields. Respondent No.2 Authority has also taken on record necessary revenue records, crop statements etc. in support of their statements. It has thereafter recorded statement of petitioner who disclosed that he has purchased all fields but because he's residing away from places where those fields are situated, he has given the fields on lease for cultivation to the original owners themselves. He could not produce any written agreement of lease and he also in writing has stated that he was not aware that a public servant (Government servant) is required to obtain previous permission of appointing authority before acquiring such properties. It is important to note that petitioner is "Patwari" in revenue Department of State Government of Maharashtra. Respondent No.2 has concluded that this clearly demonstrated illegal money lending transactions and therefore has passed orders directing petitioner to hand over all lands totaling to 13.96 Hectors to it. Brief details of other Writ Petitions are as under.

W. P. No.	DATE OF IMPUGN- ED ORDER.	SALE DEED	DIRECTION
2159/2006	20-3-2006	24-11-1999	Possession continuing with debtor be maintained.
2345/2006	23-3-2006	15-3-2005	Possession be delivered back to debtor.
2390/2006	29-3-2006	17-4-2001	Sale transaction declared illegal.
2429/2006	19-11-2005	Agreement dated 23-3-2004	Civil suit for specific performance pending Authority holds illegal money lending transaction.
2556/2006	27-3-2006	26-5-2000	Possession continuing with debtor be maintained.
2580/2006	28-4-2006	6-12-2001	Land be delivered in possession of Authority.
2684/2006	22-5-2006	8-11-2001 14-12-2001	Petitioner has reconveyed property purchased by sale on 14-12-2001. Possession continuing with debtor. To handover land under sale dt.8-11- 2001 to Authority.
2882/2006	16-3-2006	11-4-1997	Land be delivered to debtor.
3004/2006	5-4-2006	26-7-1999	2 debtors. Petitioner 1-a Government servant.
		6-2-2001	To handover land covered
		18-4-2002	by 3 sale deeds to Authority.
3062/2006	5-6-2006	23-6-2005	Report is 3-6-2006 dated. By impugned order
		22-6-2005	Land directed to be delivered to Authority.
3063/2006	1-12-2005	17-5-1997	Complainant before Authority was by 8.
		6-1-1994	Debtors Land directed to be delivered to
		5-5-1997	Authority.
3212/2006	23-6-2006	14-3-1984	Authority doubted purchase of 45/50 acres.
		15-3-1983	by Petitioner/ teacher in short time & in report.
		24-6-1983	held it to be illegal money lending.
3387/2006	1-7-2006 (Report)	9-7-1997 4-6-1998	Petitioners are husband and wife. Total 5 debtors are respondents 3 to 7.
		29-3-2001	Earlier report of Authortiy on complaint
		26-4-2000	of resp. 4, 5 and 6 in favour of petitioner.
		29-5-2003	Report impugned declares
		21-4-2005	all sales to be money lending.
3796/2006	30-6-2006 (Report)	11-12-2006	Possession continuing with debtor be maintained. Authority holds illegal money lending.
4165/2006	17-7-2006	28-3-2002	4 petitioners and 5 debtor/ respondents.
		23-3-2002	Authority has rejected objection
		13-6-2003	Of Petitioners to its jurisdiction
		21-4-2004	as no inquiry under section
		28-4-2003	13-A was initiated.
4236/2006	28-7-2006	18-2-2000	Land order to be delivered to Authority.
4299/2006	10-5-2006	30-12-2002	Petitioner objected to the Jurisdiction of Authority. Ignoring it Authority directed him to appear in inquiry.

In Writ Petition 2961/2006 impugned order is dated 13-6-2006. There are two debtors and two sale-deeds. Vendor Anil of first sale dated 19-7-1999 is alleged to have died on 19-6-1999. Second sale-deed is dated 25-5-1999 (unregistered) while registered sale-deed is dated 4-10-2000. The Authority has submitted report under section 13-A of Act holding transactions to arise out of illegal money lending and challenge in petition is to said report.

In Writ Petition 3112/2006 the petitioner is same as in 3110/2006 and he has challenged notice dated 21-4-2006 issued by Authority for appearance in inquiry to be held about field property purchased by him on 29-6-1993 from father of respondent number 4 holding it to be a money lending transaction and not deciding his objection to its jurisdiction.

3. Advocate R. L. Khapre has addressed the Court on behalf of all petitioners with consent of all Advocates representing petitioners and his arguments were also supplemented by Advocate V. G. Wankhede, Advocate Anil Mardikar, Advocate V. M. Deshpande, Advocate Z. A. Haq. Learned AGP Advocate Mujumdar has advanced the main arguments to defend the orders made and action taken. Advocate Amol Mardikar and Advocate V. K. Paliwal have also addressed the Court on behalf of private respondents i.e. complainants before the Taluka Assistant Registrar of Moneylenders cum Assistant Registrar of co-operative societies in support of impugned orders. Other Advocates appearing respectively for petitioners or respondents have adopted the arguments or line of argument of these Advocates.

4. Petitioners contend that powers of Authority under section 13-A of Act are purely administrative in nature and only for the purposes of verification under the Act. It is contended that no adjudication is possible under said provision. Section 13-B springs into life after exercise of power under section 13-A and hence, no adjudication is permissible even under section 13-B of Act. Petitioners have placed reliance upon judgment reported at 1960 N.L.J. 325, State Vs. Devsi Dosa, to support this contention. It is further argued that the jurisdiction available is limited one and hence, no inquiry impinging on civil rights is contemplated either under section 13-A or section 13-B. Analogy of summary jurisdiction available to Labour Court or Industrial Court in matters of disputed relationship of employer and employee under scheme of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 has been pressed into service to state that jurisdiction of Authority is circumscribed by similar limitations and Sarva Shramik Sangha Vs. M/s. Indian Smelting and Refining and Company Ltd. and another, reported at A.I.R. 2004 S.C. 269 is pointed out in support. Thereafter, language of section 13-B is pointed out to stress that said section covers only movable properties i.e. articles or goods and not immovable property. According to learned Advocates, section is applicable only when it is case of security by way of "pledge" and therefore in any case, orders finding fault with sale-deeds and ordering delivery of possession of purchased property either to Authority or back to respective Vendors are without jurisdiction. It is contended that the definition section particularly section 2(10-A) clearly shows that the provisions of Act restrict themselves only to movable properties and immovable properties are outside its scope. It is contended that word "pledge" used in section 13-B is as defind in section 172 of Indian Contract Act, 1872 and it is not used to include even mortgage which is covered under section 58 of Transfer of Property Act, 1882. Hence, Sale is beyond reach of Authority under section 13-B of Act.

5. Learned AGP Shri. Mujumdar has invited attention to reasons and objects of the Act, particularly of Amending Act of 1977 after 1975 amendment to urge that Act is a welfare legislation enacted with a view to protect ignorant and mostly illiterate class residing in villages with a view to save them from clutches of cunning moneylenders. He invites attention to various measures and provisions enacted in the scheme of Act in the interest of such class of debtors and argues that interpretation which would suppress the mischief and advance the remedy must be adopted. He states that even powers of Civil Court are curtailed by this Act. According to him the petitioners are all found to be carrying out money lending business without license and exploiting the debtors. Section 13-A covers the cases of moneylenders who advance loan against security of immovable property and hence section 13-B also encompasses such security and immovable property. Any interpretation which will create lacunae or loopholes needs to be avoided and efforts of petitioners to circumvent mandate of welfare legislation need to be defeated. It is his contention that in present scenario when every day farmers are committing suicides, the provisions need to be implemented more sternly and require widest possible interpretation to cover all situations. Word "pledge", according to him, is used in wide sense and not in its narrow sense in which it is understood normally in view of Contract Act. He invites attention to plain meaning of said word as given in any dictionary and argues that it even covers act of offering immovable property as security and documents of all nature evidencing it. Advocate Amol Mardikar states that section 13-B cannot be interpreted in isolation and section 13-A which is the source of section 13-B must be allowed to have its full effect. He argues that petitioners are trying to scuttle very purpose of enacting both these provisions in the Act. Advocate V. K. Paliwal argues that in view of section 13, verification and interrogation in section 13-A is a quasi judicial function and therefore only direction to restore possession of security is possible under section 13-B of Act. He further points out that the Authority empowered by State Government to exercise said powers is already quasi judicial authority under section 89 of Maharashtra Co-operative Societies Act, 1961. To substantiate his stand he relies upon the judgment of Hon'ble Apex Court reported at A.I.R. 1968 S.C. 384, Collector, Varanasi Vs. Gauri Shanker Misra and A.I.R. 1965 S.C. 1942, M/s. Kamala Mills Ltd. Vs. State of Bombay. He also cites the ruling of Hon'ble Apex Court at A.I.R. 2002 S.C. 2158, Indian National Congress (I) Vs. Institute of Social Welfare, to point out in what situation inquiry can be said to be not quasi judicial inquiry.

6. Thus, the question whether section 13-B permits Authority to exercise jurisdiction in cases where the debtor has already executed and registered a sale-deed in favour of moneylender squarely arises for consideration in all these matters. Before going to the relevant provisions of law on the point, it would be appropriate to find out objects and reasons of Act and how the Act has been understood judicially.

The statement of objects and reasons to Bombay Money Lenders Act, 1946 reads as under :-

"If a concerted attempt is to be made to improve the economic condition of the bulk of the rural population and the poorer sections of the population in towns and cities, it is necessary that adequate measures should be taken to protect these persons from exploitation by other sections of the community. The poorer individual is at present unable to resist the economic forces that surround him; and unless the State intervenes and protects his legitimate economics rights, it will not be possible to restore to him the keenness and initiative which are essential for increased productive effort on his part.

In the case of the agrarian population the Agricultural Debtors Act, 1947 will adjust and liquidate existing debts, but controlled credit must be provided in future for short term and long-term agricultural finance in order to secure that the agrarian population will not get hopelessly into debt again.

Similarly in towns and cities a large section of the labour and lower middle class population are exploited by many unscrupulous moneylenders and it is therefore necessary to control the operation of the latter all over the State."

From this Statement of Objects and Reasons it is quite clear that the Act was enacted for the protection of poorer individuals who are unable to resist the economic forces that surround them. It was enacted to improve the economic condition of the bulk of the rural population and the poorer sections of the population in towns and cities. This intention behind the legislation is made further clear from the statement of objects and reasons appended to the Act XX of 1977 by which certain provisions came to be amended. The said Statement of Objects and Reasons reads as under :-

"The Bombay Money Lenders Act, 1946 was amended by Maharashtra Act 76 of 1975 with a view to checking the evils of unauthorized moneylending and increasing indebtedness of the weaker sections of the community and to streamline the implementation of the Act. When the Amendment Act was brought into force on 29th July, 1976, Government received representations from various institutions, indicating the difficulties experienced by them. Government has examined these representations and has decided to amend certain provisions and to delete certain provisions of the Act, to overcome some genuine difficulties experienced by the businessmen and their institutions.

2. The following notes on clauses explain the important provisions of the Bill. Clause 2. It is proposed to exempt the negotiable instruments (other than promissory notes) and Hundis, when the advance made is for a sum exceeding Rs.3000/- from the definition of 'loan' Smaller advances on these instruments, however, will continue to be regulated by the Act. The other exemption proposed under this clause is for any advance made bona fide by a businessman, not having for its primary object the lending of money , if such advance is made in the regular course of his business."

7. In A.I.R. 2005 S.C. 635 : [2005(5) ALL MR 277 (S.C.)], Sona Chandi oal Committee Vs. State of Maharashtra, while upholding levy of inspection fee by section 9-A of Bombay Money Lenders Act (31 of 1947), as amended by Maharashtra Act 7 of 1992, Hon'ble Apex Court observed that said fee is not a tax in guise of fee and also not so excessive so as to lose character of fee and that there is also quid pro quo to service rendered to money lenders hence State Govt. has authority to levy such fee. Following observations are relevant for present purposes:-

"6. Money lenders are required to maintain books of accounts under section 18 of the Act read with Rules 16 and 17 of the Rules. Section 18 deals with the duty of the money lender to keep accounts and maintain cash books and the ledger in such form and in the manner as may be prescribed as also furnish copies to debetors as well as Assistant Registrars. The section also provides that money lender upon repayment of loan in full shall make entries indicating payment or cancellation and discharge every mortgage, restore every pledge, return every note and cancel or reassign every assignment given by the debtor as security for loan.-----------------."

"22. The Bombay Money Lenders Act, 1946 was enacted during pre-independence period by the elected Government to control and regulate money lending. Money Lenders were fleecing the poor peasants, tenants, agricultural labourers and salaried workers who were unable to repay loans. The agricultural debtors were losing their lands, crops or other securities to the money lenders. To arrest this exploitation, the Money-Lenders Act was enacted to improve the economic conditions of the bulk of the rural population and the poorer sections of the population in towns and cities. Under the Act it was made mandatory first to take a license to do the business of money lending on payment of a license fee of Rs.200/-----------------."

"24. This apart the fee charged is regulatory in nature to control and supervise the functioning of the money lending business to protect the debtors the vast majority of which are poor peasants, tenants, agricultural labourers and salaried workers who are unable to repay their loans. The object of the Act is to control the money lending business and protect the debtors from the mal-practices in the business by detecting illegal money lending. This exercise is a must to carry out the object of the Act for which lot of infrastructure is required. The duty of the staff and the officers of the Department is to visit the places of money lending business, inspect the accounts and other matters relating to the business, to find out illegal money lending, carry out raids in suspicious cases and to regular inspection as provided in the Act. The Act serves a larger public interest."

"25._. Since the Act is a social legislation with the intention to protect the debtors from the mal-practices in the business the State is performing its duties even though the revenue under the Act is not even sufficient to meet the expenditure on the staff performing duties under the Act. In view of these submissions it cannot be held that the fees are either arbitrary or excessive."

Division Bench of this High Court in M.J. Brothers Vs. Amar Finance, reported at 1991(1) L.J. Soft 54 : A.I.R. 1992 Bom. 1 in para 7 has held that :-

"7 _ The Act is a piece of beneficial social legislation. It is intended to keep a firm check on the transactions of money-lenders. With that end in view money-lending business cannot be carried on unless licensed. Moneylenders are obliged to maintain books of accounts as prescribed and to furnish statements of account to their debtors. The Court is empowered to scrutinize their dealings and even to reopen agreements purporting to close previous dealings and creating new obligations. This latter is subject to a time bar, as aforesaid. Until the time bar comes into operation the money-lenders must preserve books of account relating to the previous dealings purported to be closed by the agreements."

Division Bench of this Court in A.I.R. 1990 Bombay 140, Bhanushankar Jatashankar Bhatt Vs. Kamal Tara Builders Pvt. Ltd., while considering constitutional validity found that entry 46, List I, i.e. Union List of the 7th Schedule authorizes the Parliament to legislate on the subject dealing with the bills of exchange, cheques and promissory notes and other like instruments, whereas Entry 30 of List II - the State List, deals with money lending, money lenders and relief of agricultural indebtedness. However, it noticed that Bombay Money Lenders Act, 1946 is enacted by the State legislature by virtue of the powers conferred upon it by the State List, entry 30 of the 7th Schedule. Pith and substance of the legislation was taken into consideration and Division Bench expressed that it was quite obvious that the enactment namely Money Lenders Act is covered by the said entry and is not rendered invalid on the ground that provisions of section 2(9)(f) and (f1) deal with bills of exchange etc.

8. The Act aims at making better provisions for regulation and control of transactions of money lending. Section 2 contains important definitions of words like "business of money lending, capital, interest, license loan, moneylender" etc. Section 3 permits State Government to appoint officers like Registrar General, Registrars and Assistant Registrars of moneylenders for the purposes of this Act and they need not be public officers. Section 4 requires every Assistant Registrar to maintain a register of moneylenders and section 5 prohibits moneylenders from carrying on business of money lending in any area outside the area for which he has been granted license and except in accordance with terms and conditions of such license. Section 6 castes obligation upon moneylender to apply to Assistant Registrar in his area for procuring such license and section 7 prescribes the procedure for granting such license and entry of name of licensee in the register under section 4 above. Section 8 contemplates cases in which such license can be refused and appeal from such refusal. Section 8-A authorizes Registrar to cancel the license during its term and its procedure as also appeal therefrom. Section 9 states that every license is valid from the date on which it is granted till next 31st July. Section 9-A imposes inspection fee upon licensee. Section 10, prohibits Court from passing decree in favour of moneylender if he did not have valid license and the suit is liable to be dismissed if there is no such valid license. Section 12, enables any person to move Registrar General for cancellation of license of moneylender. Section 13 confers certain powers of Civil Court upon Registrar General, Registrar and Assistant Registrar. Section 13-A confers power upon these authorities to call upon moneylender to produce relevant records or documents and to put appropriate questions in relation there to. Section 13-B deals with procedure to be followed by these authorities when they come across property pledged with moneylender carrying on business without valid license. Section 14 also permits Court passing an order of conviction against moneylender for an offence under Act or Court trying the suit to order his license to be canceled or suspended or such moneylender to be disqualified for holding such license for such time as it may think fit. It also permits aggrieved moneylender to appeal to superior Court from any such direction. Section 15 declares that no compensation is payable for suspension or cancellation of license. Section 16 debars moneylender from doing business during period of such suspension or cancellation and section 17 prohibits such moneylender from applying for or from holding a license without disclosing such disqualification or suspension or cancellation. Section 18 imposes duty upon moneylender to keep accounts and to furnish copies thereof to the Assistant Registrar and also its relevant extract to the debtor. It also requires him to record satisfaction of debt and discharge mortgage or restore pledge or return every note or cancel or reassign every assignment received by him as security. Section 19 requires moneylender to deliver every year to his debtor a statement of debtors account and section 19-A enables moneylender to recover fees therefor at prescribed rates. Section 20 declares that supply of such statement of account is not an admission of debtor as to correctness of accounts. Section 21 casts obligation upon Court dealing with the suit to which this Act applies to first satisfy itself that moneylender has fulfilled requirements of sections 18 and 19 and if it finds that there was no such compliance, it may even while decreeing the suit of moneylender disallow the whole or any portion of interest found due. Section 22 states that provisions of sections 18 to 21 are not applicable to loans advanced by a Company or unincorporated body exempted by Sate Government. Section 23 prohibits Court from granting as interest a sum more than principal amount of loan. Section 24 gives discretion to Court to grant installments to the debtor and overrides provisions of CPC. Section 25 enables State Government to fix from time to time by notification in Official Gazette maximum rates of interest and also prohibits contracting out and makes its violation by moneylender, an offence. Section 26 regulates recovery of administrative charges from debtor by moneylender. Section 27 requires moneylender to give intimation of assignment of loan to the debtor and of particulars of loan to the assignee. Section 28 treats such assignee as agent of moneylender. Section 29 permits Court to reopen transactions between moneylender and debtor and this can be done even in cases where suit is heard ex parte. Section 30 enables debtor to move application to Court for taking accounts and for declaration of amount due to moneylender from him. Section 31 permits debtor to deposit money tendered by him and refused by moneylender in Court. Section 31-A points out the situation in which moneylender can charge interest for entire month. Section 32 prohibits moneylender from taking any promissory note, acknowledgment, bond or the writing which does not state the actual amount of loan or which wrongly mentions it or which contains blanks and its violation has been made an offence. Sections 32-A, 32-B, 33 etc. prescribe for penalties for making false statement, for obtaining license on fictitious name or for doing business without valid license etc., for molestation of debtor and section 34 makes provision for general penalties. Section 35 provides for offences by corporations and section 35-A makes certain offences cognizable. Section 35-B stipulates that cognizance can be taken only after previous sanction given by Registrar. Section 36 abolishes arrest and imprisonment of agricultural debtors in execution in certain circumstances. Section 37 declares that every officer acting under this Act is deemed to be public servant within meaning of section 21 of Indian Penal Code. Section 38 saves provisions of Bombay Agricultural Debtors Relief Act, 1947. Section 38-A permits State Government to delegate its powers and section 39 enables it to make rules. Section 40 is the provision which deals with repeals and savings. Rules titled "The Bombay Moneylenders Rules, 1959" are also framed under Act.

9. The question which therefore needs to be addressed to is whether under section 13-B the Authority has no jurisdiction to deal with and to pass any orders governing the immovable property. Said Section depends for its operation upon result of inquiry under preceding section 13-A and it is section 13 which confers certain powers upon Authority for the purposes of such inquiry. The relevant provisions are :-

"Section 13. Registrar General, Registrar and Assistant Registrar to have powers of Civil Court:

For the purposes of Section 7 and 13-A, the Registrar, Assistant Registrar and as, the case maybe, the officer authorized under section 13-A and for the purposes of section 12 the Registrar General, shall have and may exercise the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, in respect of following matters :-

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and materials objects;

(c) issuing commissions for the examination of witnesses; and

(d) proof of facts by affidavits.

Section 13-A. Power of authorized officer to require production of records or documents:-

For the purposes of verifying whether the business of money lending is carried on in accordance with the provisions of this Act any Registrar, Assistant Registrar on any other officer authorized by the State Government in this behalf may require any moneylender or any person in respect of whom the Registrar, Assistant Registrar or the officer so authorized has reason to believe that he is carrying on the business of money lending in the State to produce any record or documents in his possession which in his opinion is relevant for the purpose and thereupon such moneylender or person shall produce such record or documents. The Registrar, Assistant Registrar or officer, so authorized may after reasonable notice at any reasonable time enter and search without warrant any premises where he believes such record or document to be and inspect such record or document and may ask any question necessary for interpreting or verifying such record.

Section 13-B. Disposal of property pledged with moneylender carrying on business of money lending without a valid license :-

(1) If upon the inspection of records and documents made under section 13-A, the inspecting officer is satisfied that moneylender is in possession of property pledged to him by debtor as security for the loan advanced by moneylender in course of his business of money lending without a valid license, the inspecting officer shall require the moneylender to deliver forthwith the possession of such property to him.

(2) Upon the property being delivered to him, the inspecting officer, if is not the Registrar, shall entrust it to the Registrar and the Registrar, when he is also the inspecting officer shall keep it in his custody for being disposed of as hereinafter provided.

(3) On delivery of the property under sub-section (1) or sub-section (2), the Registrar shall, after due verification and identity thereof, return it to the debtor who had pledged it or, where the debtor is dead, to his known heir.

(4) If the debtor or his known heirs can not be traced, the Registrar shall, within 90 days from the date of taking possession of the property, publish a notice in the prescribed manner inviting claims thereto. If, before the expiry of the said period, a claim is received, whether in answer to the notice or otherwise, he shall adjudicate upon and decide such claim. If the Registrar is satisfied that any claim is valid, he shall deliver the possession of the property to the person claiming it on his giving a receipt therefor; and such delivery of the property to the person claiming it shall discharge the Registrar of his liability in respect of such property against any other person. If the claim is refused, the property shall stand forfeited to the State Government.

(5) Where the possession of the property pledged by debtor cannot, for any reason (including identity thereof) be delivered to him, then the moneylender to whom it was pledged shall be required to pay to the debtor or if he is dead, to his known heir, the value of such property if such debtor or, as the case maybe, the heir claims the property. If the moneylender fails to pay the value, it may be recoverable from him as an arrear of land revenue; and on recovery of the value, it shall be delivered to the debtor by whom such property was pledged or, as the case maybe, to the heir.

(6) If there is difference of opinion between the moneylender and the debtor or, as the case maybe, his heir on the question of value of property or its identity, the question shall be referred to the Registrar for decision and his decision on question shall be final.

(7) The value of the property may be determined with the assistance of the services of an expert appointed by the State Government in that behalf. The expert may be paid such honoraria as the State Government or any officer not below the rank of a Tahasildar appointed by it may by an order in writing from time to time in relation to any area or areas determine."

10. Above provisions of Act make it clear that the Authority as a result of inquiry under section 13-A must be satisfied about the pledged property that it is security for loan advanced to a particular debtor and pledged by such debtor. He then has to himself ask moneylender to forthwith deliver its possession to him. Such property is to be kept in custody of Registrar and is to be returned to debtor or his heir after due inquiry and after its identity is established. If such property cannot be delivered to debtor, moneylender has to compensate such debtor. How the amount of compensation is to be arrived at in any case of dispute is also specified in the section. It can also be recovered as arrears of land revenue. The decision of Registrar on the issue of valuation of such property or its identity is made final. Section 13 in terms confers certain rights of Civil Court upon Registrar or Authority. Section 13-A permits them to search without warrant the premises where illegal money lending business is believed to be carried. Obligation is cast upon moneylender to produce documents as demanded by them and to clear doubts raised by them. The consequences of such verification or inspection or inquiry are stoppage of his activity by such moneylender and also return of pledged property to the original owner/debtor. This definitely has Civil consequences for moneylender, for debtor or also for his heir. The following judgments cited by Advocate Paliwal need consideration in this background.

In A.I.R. 1968 S.C. 384, Collector, Varanasi Vs. Gauri Shanker Misra Hon'ble Apex Court found that while acting under section 19(1)(f) of Defence of India Act (1939), High Court functions as 'Court' and not as designated person. Hence, its decision is determination and it is, therefore, within competence of Supreme Court to grant special leave under Article 136. Neither the Act nor the Rules framed thereunder prescribe any special procedure for the disposal of appeals under section 19(1)(f). Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court. Obviously after the appeal has reached the High Court, it has to be determined according to the rules of practice and procedure of that Court. The Rule is well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court: Hon'ble Supreme Court also noted that the appeal provided in section 19(1)(f) is an appeal to the High Court and not to any Judge of the High Court. Broadly speaking, Court is a place where justice is judicially administered. The ruling thus considers the nature of jurisdiction exercised by High Court and not of any administrative authority like "Authority" in present case and therefore is not relevant here.

In A.I.R. 1965 S.C. 1942 between M/s. Kamala Mills Ltd., Vs. State of Bombay while considering scope of section 20 of the Bombay Sales Tax Act, 1946 Hon'ble Apex Court found that it protects "assessment made under the Act or the Rules made thereunder" by appropriate authorities. An order of assessment, even if erroneous, and based on an incorrect finding of fact is, nevertheless, an order of assessment within the meaning of section 20, and it can not be called in question in any Civil Court. Erroneous conclusion of Appropriate Authority is held not to be a finding on collateral fact and a conclusion that falls within the jurisdiction of said authority. Hon'ble Apex Court noted that whole activity of assessment which begins with the filing of the return and ends with an order of assessment falls within the jurisdiction of the Appropriate Authority and that no part of it constitutes a collateral activity not specifically and expressly included in the jurisdiction of the appropriate authority as such. Hon'ble Supreme Court states that even an erroneous conclusion of the Appropriate Authority on the question about the character of the sale transactions on which a dealer has been taxed cannot be said to be without jurisdiction. Here the question is whether section 13-B of Act which permits Authority to deal with "Pledge" confers jurisdiction upon it to order restore possession of immovable properties by ignoring registered documents of Sale-deed. What is being argued by petitioners is not question of arriving at an erroneous decision by Authority in exercise of jurisdiction conferred on it but of overstepping it.

I find A.I.R. 2002 S.C. 2158 "Indian National Congress (I) Vs. Institute of Social Welfare" more relevant and clinching in relation to nature or power exercised by Authority under the Act. Following conclusions made by Hon'ble Apex Court need only be reproduced:-

"24. The legal principles laying down when an act of a statutory authority would be a quasi judicial act, which emerge from the aforestated decisions are these :

Where (a) a Statutory Authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the Statutory Authority is required to act judicially under the statute, the decision of the said authority is quasi judicial.

Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a Statutory Authority, in the absence of any other attributes of a quasi judicial authority is sufficient to hold that such a Statutory Authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi judicial authority if it is required to act judicially.

25. Coming to the second argument of learned Counsel for the respondent, it is true that mere presence of one or two attributes of a quasi judicial authority would not make an administrative act as quasi judicial act. In some case, an Administrative Authority may determine question of fact before arriving at a decision which may affect the right of an appellant but such a decision would not be quasi judicial act. It is different thing that in some cases fairplay may demand affording of an opportunity to the claimant whose right is going to be affected by the act of the Administrative Authority, still such an administrative authority would not be quasi judicial authority.

26. What distinguishes an administrative act from quasi judicial act is, in the case of quasi judicial functions under the relevant law the statutory authority is required to act judicially. In other words, these law requires that an authority before arriving at decision must make an enquiry, such a requirement of law makes the authority a quasi judicial authority."

From above discussion it is apparent that Authority here is acting as a Statutory Authority and is discharging certain functions by invoking powers of Civil Court and issues directions which have Civil consequences. Though the provisions do not in term speak of any "lis" between moneylender and the debtor, the Authority is required to satisfy itself about certain jurisdictional facts before passing an order adverse to moneylender. It has to record that property is that of debtor, is pledged as a security for loan advanced by moneylender to such debtor and thereafter, only it can direct delivery of possession. The identity of property is required to be established and entire scheme shows that inquiry or verification from debtor in this respect is essential. Hence it is apparent that inquiry conducted by Authority is not an administrative inquiry but quasi judicial inquiry.

Petitioners have relied on 1960 N.L.J. 325-State Vs. Devsi Dosa to contend that enquiry undertaken by Authority is only administrative. However the Hon'ble Division Bench there was concerned with challenge to notice to produce documents issued under section 13-A of Act and immunity claimed therefrom in view of Article 20(3) of Constitution of India. The findings recorded by Division Bench are therefore only in this perspective. Issue of nature of such enquiry, whether quasi judicial or administrative, did not arise for consideration there, Division Bench has found that such notice (sic) moneylender is not an accused at all and enquiry has been held to be merely administrative in nature but these observations are qua criminal proceedings.

In Sarva Shramik Sangha Vs. M/s. Indian Smelting and Refining and Company Ltd. and another reported at A.I.R. 2004 S.C. 269 the Hon'ble Apex Court states that jurisdiction to decide a matter would essentially depend upon pleadings in the plaint. But it clarified that in a case like the one before it, where the fundamental fact decides the jurisdiction to entertain the complaint itself the position would be slightly different. In order to entertain a complaint under the Maharashtra Act it has to be established that the claimant was an employee of the employer against whom complaint is made, under the I.D. Act. When there is no dispute about such relationship, the Maharashtra Act would have full application. When that basic claim is disputed obviously the issue has to be adjudicated by the forum which is competent to adjudicate. The sine qua non for application of the concept of unfair labour practice has been held to be the existence of a direct relationship of employer and employee. Until that basic question is decided the forum recedes to the background in the sense that first that question has to be got separately adjudicated. Hon'ble Court accepted for the sake of arguments that two forums are available, but still found that the Court certainly can say which is the more appropriate forum to effectively get it adjudicated. Once the existence of contractor is accepted, Hon'ble Supreme Court noticed that it leads to an inevitable conclusion that a relationship exists between the contractor and the complainant. When according to workers, the contract was a facade and sham one which has no real effectiveness, it found that the relationship existing by contractual arrangement which is sought to be abandoned and negated and in its place the complainant's claim is to the effect that there was in reality a relationship between the employer and the complainant directly. It is the establishment of the existence of such an arrangement which decides the jurisdiction. That being the position, Hon'ble Supreme Court held that as already declared by it in earlier decisions, an industrial dispute has to be raised before the Tribunal under the I.D. Act to have the issue relating to actual nature of employment sorted out. This judgment considers a particular law and limited jurisdiction which it confers on Labour or Industrial Court. Here the provisions of Act under consideration do not contemplate such two tier adjudication and this ruling is not relevant at all. On the contrary, scheme of section 13-B clearly shows that moneylender has to return the pledged property to the Authority which thereafter has to return it to its rightful owner or his heir. Section 13-B(6) expressly makes decision of Registrar about valuation or identity of pledged property final.

11. Coming back to main question one of the reasons mentioned in section 13-B to give compensation to debtor is failure to establish identity of pledged property. This is not possible in case of immovable property as no question as to its identity can arise. Entire scheme of section 13-B clearly shows that it speaks of movable property i.e. articles or goods. The Section itself uses the word "pledge". The insistence of learned AGP Shri. Mujumdar and other Advocates for respondents for wide or liberal interpretation of this word now needs to be looked into. Dictionary meaning of "Pledge" is a serious promise, to undertake or to promise seriously to do something or give something. In legal sense it is also stated to be deposit something as security with condition that in case of default it would be forfeited. Section 172 of Indian Contract Act defines pledge as bailment of goods as security for payment of the debt or performance of the promise. The bailor is called as "pawnor" and the bailee is called as "pawnee". Section 148 of Contract Act defines the bailment as delivery of goods by one person to another for same purpose, upon contract that they shall when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. Thus as per Contract Act there can be bailment or pledge only of goods or articles (i.e. movables) and not of immovable property. In case of pledge a special interest and not special property is transferred to the pledgee who is impliedly authorized to sell the goods pledged in case of default in accordance with provisions of the Contract Act. In case of Mortgage, a general but limited property is transferred to the creditor but the possession may or may not be transferred to the mortgagee. Right of enjoyment of property is not given to pledgee while that right vests in mortgagee when possession is given to him. The pledgee has only special property in goods pledged, namely, the right of retainer of the goods as security. In case of default he must either bring the suit against the pawner or sell the goods after giving a reasonable notice. Mortgage essentially refers to immovable property and is regulated by Transfer of Property Act. In case of pledge, title to the property pledged remains with the pawner while in case of mortgage, an interest in the mortgaged property is transferred in favour of mortgagee subject to the right of redemption of mortgagor. In case of Sale, the property in the goods is transferred from seller to buyer immediately. Thus the title passes from seller to purchaser. In view of this basic difference in the nature of transactions, it will have to be seen whether legislature intended to give wide meaning to word pledge in section 13-B of Act. Said Act i.e. Bombay Moneylenders Act is an Act of year 1946 while Indian Contract Act is of year 1872 and Transfer of Property Act is legislation of year 1882. Legislature was therefore very much aware of legal meaning of word "pledge". If it wanted to give any other or wider meaning to "pledge", it would and could have indicated it specifically.

12. Other provisions of Bombay Moneylenders Act, 1946 also need to be seen to find out whether legislature has used any other technical words in it or word "pledge" has been loosely used and therefore its wider meaning or liberal interpretation is intended or warranted. Section 2(10-A) needs to be looked into. It reads "pawn broker" means a moneylender who in ordinary course of his business advances a loan and takes goods in pawn as security for payment of such loan;. This language used by legislature clearly shows that legislature has pointed out a small class or species from genus moneylender. It again clearly shows that the legal distinction because of taking goods in pawn as security has been noticed and word "pledge" has been used in section 13-B of Act.

Next important provision in Act is section 18 which uses the all words viz. mortgage, pledge and assignment. It is as under:-

"Section 18. Duty of moneylender to keep accounts and furnish copies:-

(1) Every moneylender shall keep and maintain the cashbook and a ledger in such form and in such manner as maybe prescribed.

(2) Every moneylender shall-

(a) deliver or cause to be delivered-

(i) to the debtor within 30 days from the date on which a loan is made, a statement in any recognized language showing in clear and distinct terms the amount and date of loan and of its maturity, the nature of the security, if any, for the loan, the name and address of the debtor and of the moneylender and date of interest charged: (Note:- proviso not relevant and hence not reproduced.)

(ii) - (Note:- not relevant and hence not reproduced).

(b) upon repayment of a loan in full, mark indelibly every paper signed by the debtor with words indicating payment or cancellation, and discharge every mortgage, restore every pledge, return every note and cancel or reassign every assignment given by the debtor as security for the loan.

(2) - (Note:- not relevant and hence not reproduced).

(3) - (Note:- not relevant and hence not reproduced).

(4) No moneylender shall accept from a debtor any article as a pawn, pledge or security for a loan without giving him a plain signed receipt for the same with its description, estimated value, the amount of loan advanced against it and such other particulars as maybe prescribed."

Word "assignment" clearly envisages transfer of Property. What constitutes an "assignment" has been considered by this Court (Single Bench) in Janabai Raghunath Khomane & Ors. Vs. Hirabai Malhari Atole & Anr., reported at 2003(3) L.J. SOFT 100 : [2003(1) ALL MR 1073] as under :-

"10. Mr. Kumbhakoni, learned Counsel for the petitioner relied on the decision of the Supreme Court in the case of (Commissioner of Gift Tax, Madras Vs. N. S. Getty Chettiar), A.I.R. 1971 S.C. 2410. Although in a different context the Supreme Court observed that the words "disposition", "conveyance", "assignment", "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The Supreme Court has observed as follows :-

"We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve."

Further, the Supreme Court observed that "assignment" means the transfer of the claim, right or property to another.

11. It is clear that the word "assignment" means a transfer and what is essentially prohibited by section 43 is transfer of property.

12. What must therefore, be considered is whether the application effecting mutation entry in favour of his wife was an assignment-

.......... That such entries would not amount to transfer of title of holder of property in favour of person in whose name the entries are made.

13. It is, therefore, clear that when such an application is made and granted, it does not result in a transfer of ownership from the person making such an application to the person in whose favour such an application is made, whether by way of assignment or otherwise.

15. What is prohibited by section 43 is a transfer of ownership. In other words, a transfer of title from one person to another. Therefore, where no title is transferred or conveyed from one to another in the sense that the title to the property vests in the transferee, it would not amount to a transfer within the meaning of section 43 and no sanction of the Collector would therefore be necessary. A transfer must involve the transfer of all those bundle of rights which constitutes ownership and can be said to have taken place whether it result in extinguishing such rights in the transferor and vesting of such right in the transfer of property. Unless that takes place, the act cannot amount to a transfer of property."

Section 28 of Act read with its section 27, Rule 21 of Bombay Moneylenders Rules, 1959 and Forms 15, 16 and 17 clearly show that legislature also thought of situation in which debtor may himself transfer his property to extinguish the loan and has protected him from moneylenders who assigned the loan itself to another person. Section 28 reads :-

"Section 28. Application of Act as respects assignees:- (1) Save as hereinafter provided, where any debt due to moneylender in respect of money lent by him whether before or after the date on which this Act comes into force or of interest on money so lent or of the benefit of any agreement made or security taken in respect of any such debt or interest has been assigned the assignee shall be deemed to be the moneylender and all the provisions of this Act shall apply to such assignees at if he were the moneylender.

(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, where for any reason any such assignment is invalid and the debtor has made any payment of money or transfer of property on account of any loan which has been so assigned, the assignee shall in respect of such payment or transfer be deemed to be agent of the moneylender for all the purposes of this Act."

Thus, in Act words like mortgage and assignment are also used in appropriate situations by the legislature. Nothing prevented it from using these words even in section 13-B. Scheme of said section shows that only those cases where debtor's title over property was subsisting and no right in relation thereto was created in favour of moneylender because of his doing business contrary to law; are envisaged by it.

13. Discussion above therefore leaves no doubt that legislature did not intend to cover transactions in which immovable property was sold as security under section 13-B of Act. In any case it is apparent that when interest in immovable property is transferred by mortgage or by assignment (Sale), such cases do not fall under it even if it be as security by debtor to moneylender. Legislature was alive to the legal meaning of phrase "pledge" and the same has been used deliberately in section 13-B. Read in contradistinction with sections 18 and 28 this is more apparent. The word "Pawn broker" is not used in section 13-B Deliberately because security accepted by moneylender maybe even of title deeds or bonds or other similar securities like cheques, shares etc. In all these writ petitions, it is admitted position that the respondents or debtors have executed and registered sale-deeds in favour of petitioners and petitioners have thus acquired title to the immovable property possession of which is ordered to be restored back to such vendor debtors by Authority or is sought by the Authority itself. Obviously such direction and order is beyond scope of section 13-B of Bombay Money Lenders Act, 1946 which deals with only movable properties.

14. There is one more reason for holding this. The scheme of Act discussed above shows that the legislature has also given important role to Civil Court in the matter for redressal of grievances of debtors before it and to see that Act is more effectively implemented. Sections 10 and 29 are important for this purpose.

"Section 10. Stay of suits by moneylenders not holding license:- (1) No Court shall pass a decree in favour of a moneylenders in any suit to which this Act applies including such suit pending in the Court before the commencement of the Bombay Money Lenders (Amendment) Act, 1975 unless the Court is satisfied that at the time when the loan or any part thereof, to which the suit relates was advanced, the moneylender held a valid license, and in the Court is satisfied that moneylender did not hold a valid license, it shall dismiss the suit.

Section 29. Notwithstanding anything contained in any law for the time being in force, the Court shall, in any suit to which this Act applies, whether heard exparte or otherwise-

(a) reopen any transaction, or any account already taken between the parties;

(b) take an account between the parties;

(c) reduce the amount charged to the debtor in respect of any excessive interests;

(d) if on taking accounts it is found that the moneylender has received more than what is due to him pass a decree in favour of the debtor in respect of such amount.

Provided that in the exercise of these powers, the Court shall not-

(i) reopen any adjustment or agreement purporting to close previous dealings and to create new obligations which have been entered into by the parties or any person through whom they claim at a date more than six years from the date of the suit;

(ii) do anything which affects any decree of a Court,

Explanation:- For the purpose of this Section "excessive interest" means interest at a rate which contravenes any of the provisions of section 25."

Section 10 requires Court not to decree the suit of moneylender and to dismiss it if he did not have valid license. Section 29 permits Court to open closed transaction and to take accounts itself to find out whether any injustice has been done to debtor by taking advantage of his illiteracy or ignorance or whether excessive interest is charged from him. Thus Act has not done away with proceedings before Civil Court. No jurisdiction even in the alternative has been conferred on Authority in disputes arising under Act in relation to immovable properties. In any case such Authority is not constituted as an alternate forum to decide questions about title to immovable properties. Bare perusal of its section 13-B shows that only limited type of disputes are left for decision by Authority and such decisions about valuation or identity of property given by Authority have alone been made final. Section 2 defines "business of money lending" to mean the business of advancing loans [whether in cash or kind and] whether or not in connection with or in addition to any other business; while it defines "loan" as an advance at interest whether of money or in kind. It is therefore apparent that in cases where perusal of documents or inspection or records under section 13-A does not reveal such an advance, those cases are excluded from scope of section 13-B. In case of Sale, even if it is presumed to be bogus or sham, loan amount normally will be reflected as consideration paid and not as advance. There'llbe a registered document duly executed by debtor evidencing it. All these factors may be conspicuous by their absence in case of advance of money as loan after accepting security of movables. The Act recognises the important role of Civil Court in Civil suits to which it will be applicable and the legislature has therefore left some disputes including one in relation to sale-deed to be sorted out only in Civil Court and not before Authority which has not been equipped either by section 13 or by its position (legal education or expertise) to resolve such intricate civil controversies.

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 Act regarding possession of immovable properties purchased by petitioners through registered saledeeds. However, in the facts there shall be no order as to costs.

Petitions allowed.