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Shankar Nagu Vs. Mahibub Bandu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Rev. Appln. No. 585 of 1951
Judge
Reported inAIR1953Bom123; (1952)54BOMLR938; ILR1953Bom143
ActsDebt Laws; Bombay Agricultural Debtors Relief Act, 1947 - Sections 2(5), 4, 4(1) and 24(2)
AppellantShankar Nagu
RespondentMahibub Bandu
Appellant AdvocateY.V. Chandrachud, Adv.
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
bombay agricultural debtors relief act (bom. xxviii of 1947), sections 4, 24(2) - bombay agricultural debtors relief act (bom. xxviii of 1939)--petitioner residing in area in which board established on january 1, 1942--application for adjustment of debts not made by petitioner under act of 1939--petitioner found debtor under act of 1939 making application on april 24, 1947, under act of 1947--whether petitioner competent to make application as agricultural labourer under section 24(2) of act of 1947.; the petitioner applied under section 4 of the bombay agricultural debtors relief act, 1947, for the adjustment of his debts on april 24, 1947. a board for the adjustment of debts was established in the area in which the petitioner was residing on january 1, 1942, but the petitioner had not..........argument. (3) mr. desai has drawn my attention to the scheme of the present act. under the old act boards were established and time was fixed within which applications were to be made. boards were not established at the same time in all the areas, but some boards were established subsequently, and as boards were established time was fixed in relation to the establishment of the boards. therefore, when the new act came to be passed, it was provided that where boards were established prior to february 1, 1947, no application could be made under section 4 because an application could have been made to these boards under the old act, and even under the new acttime for making the application was limited to august 1, 1947. now, what is urged before me by mr. desai is that a person who.....
Judgment:

Chagla, C.J.

(1) The petitioner made an application under Section 4, Bombay Agricultural Debtors Relief Act for the adjustment of his debts. That application was dismissed and there was an appeal to the learned District Judge who confirmed the order of the trial Court.

(2) Now, it has been found as a fact that a Board for adjustment of debts was established in Pandharpur, the area with which we are concerned, on January 1, 1942, and the last date for making an application for the adjustment of debts under the old Act of 1939 was June 30, 1943, and it has been found that the petitioner was a debtor within the meaning of the old Act and he should have made an application under the provisions of the old Act. If that be so, it is clear that his application under Section 4 of the present Act is barred. Section 4 requires three conditions. He must be a debtor, he must make an application before August 1, 1947, and also in the area in which he resides no Board under the repealed Act must have been established before February 1, 1947. Therefore, if a Board was established prior to February 1, 1947, the section bars his application. If the Board was established after February 1, 1947, then the application must be made before August 1, 1947. It is not disputed before me by Mr. Chandrachud that the decision of the Courts below that the petitioner's application was barred under Section 4 is correct, but what is contended is that the petitioner should have been permitted to make an application under Section 24 (2). There is no finding by the Courts below as to whether the petitioner is an agricultural labourer within the meaning of the Act. That finding was thought unnecessary because the view taken by the learned District Judge was that if the petitioner was a debtor within the meaning of the Act of 1939, then he could not make an application under Section 24 (2) as an agricultural labourer. In other words, the view taken was that it is only those persons who were not debtors within the meaning of the old Act who could maintain an application as agricultural labourers under Section 24 (2), and what I have to consider in this application is to examine the validity of that argument.

(3) Mr. Desai has drawn my attention to the scheme of the present Act. Under the old Act Boards were established and time was fixed within which applications were to be made. Boards were not established at the same time in all the areas, but some Boards were established subsequently, and as Boards were established time was fixed in relation to the establishment of the Boards. Therefore, when the new Act came to be passed, it was provided that where Boards were established prior to February 1, 1947, no application could be made under Section 4 because an application could have been made to these Boards under the old Act, and even under the new Acttime for making the application was limited to August 1, 1947. Now, what is urged before me by Mr. Desai is that a person who satisfied the qualifications of a debtor under the old Act could have made an application under the old Act and therefore it could not have been the intention of the Legislature that although he failed to make an application under the old Act and therefore his right to get his debts adjusted was barred he should now come, as it were, by a side-wind under Section 24 (2). Under the old Act there was no right specially given to agricultural labourers. Either a person was a debtor or he was not. If he was a debtor within the meaning of the old Act, he had a right to have his debts adjusted. If he was not, he had no right to have his debts adjusted. Under the new Act special rights are conferred upon agricultural labourers. Mr. Desai may be right and the intention of the Legislature may have been what he suggests it was, but I must construe the Act as I find it, and unless the intention appears in language used by the Legislature, I cannot go outside the ambit of the section and speculate as to what the Legislature intended.

(4) Now, one important and unmistakable, distinction between Section 4 and Section 24 (2) is that there is no limitation laid down in Section 24 (2) as it is laid down in Section 4 that the application could be made only if a Board was not established prior to February 1, 1947, in the area where the debtor resides. The only qualification laid down in Section 24 (2) is that the agricultural labourer must make an application before August 1, 1947. Therefore, if a person is found to be an agricultural labourer and if he makes an application before August 1, 1947, the application is perfectly valid and it must be disposed of according to law. In this particular case the application of the petitioner is made prior to 1-8-1947. He alleges that he is an agricultural labourer and he is challenging a transfer as being in the nature of a mortgage. It is difficult to understand on a plain reading of this sub-section how it could be said that the petitioner is not entitled to maintain his petition. There is nothing in Sub-section (2) which suggests that the agricultural labourer referred to in Sub-section (2) is an agricultural labourer other than a person who could have been adjudicated a debtor under the provisions of the old Act. I do not see why this qualification should be read into the sub-section. Mr. Desai says that when a declaration is made that the transfer is a mortgage, the applicant shall, notwithstanding anything contained in the definition of debtor in Sub-section(5) of Section 2, be deemed to be a debtor for the purposes of the Act, and therefore Mr. Desai wants me to read into Section 24 (2) the provisions of Section 4, and Mr. Desai says that as the position of the agricultural labourer is to be the same as that of a debtor, higher rights cannot be given to him than are given to the debtor under Section 4 (1). I am not prepared to accept that contention as well. It is obvious that the Legislature wanted to give wider relief to an agricultural labourer than to a debtor. It may be that a similar provision as contained in Section 4 is not included in Section 24 (2) because the old Act did not give any relief to agricultural labourers at all. Perhaps the Legislature did not think of this complication which has arisen in this case on which Mr. Desai has relied that although an agricultural labourer was not defined under the old Act, cases may arise where an agricultural labourer may be held to be a debtor under the old Act. Whatever that may be, the mere fact that after his application has succeeded and an agricultural labourer is deemed to be a debtor within the meaning of the Act does not lead to the inference that the provisions of Section 4 (1) are to be made applicable to Section 24 (2). Therefore, in my opinion, the learned District Judge was in error when he held that the issue as to agricultural labourer was unnecessary if it was held that the petitioner was a debtor within the meaning of the old Act.

(5) I would, therefore, set aside the orderpassed by the learned District Judge, send thematter back to the Debt Adjustment Court,and direct that an inquiry be held as to whether the petitioner is an agricultural labourerwithin the meaning of Section 24 (2). If he is anagricultural labourer, as his petition was presented before August 1, 1947, the Court willproceed to consider his application on merits.If it is held that he was not an agriculturallabourer, then his application will stand dismissed. Rule absolute with costs.

(6) Rule made absolute.


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