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Vysyaraju Badarinarayana Moorty Raju Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 577 of 1977
Judge
Reported inAIR1981Ori180; 52(1981)CLT249
ActsOrissa Money Lenders Act, 1939 - Sections 18B, 18B(1) and 18B(2); Orissa Money Lenders (Amendment) Act, 1975; Orissa General Clauses Act, 1937 - Sections 2, 2(26) and 2(28); Limitation Act, 1963 - Sections 4 to 24 and 29(2)
AppellantVysyaraju Badarinarayana Moorty Raju
RespondentState of Orissa and ors.
Appellant AdvocateR. Mohanty and ;B.R. Rao, Advs.
Respondent AdvocateD.P. Mohapatra, Addl Govt. Adv. and ;S.C. Roy, Adv.
DispositionPetition partly allowed
Cases ReferredHukumdev Narain Yadav v. Lalit Narain Mishra
Excerpt:
.....1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - be that as it may, the use of the expression from time to time in the first sentence in section 18-b, sub-section (1), clearly indicates that the state government will not stop after one notification, but from time to time may give chances to the money-lenders to file their returns. the specified authority as also the appellate authority have clearly gone wrong in refusing to take steps under the statute in respect of transactions up to november, 1975. 3. the main question that has been canvassed before us is whether the specified authority has power to condone delay by extending the limitation when moved..........considered necessary under the law obviously with the intention of protecting the loanees of the moneylenders from usurious practice. but once a notification is issued, it is incumbent on the money-lenders to file returns and obtain declaration under section 18-b (2) of the act from the competent authority in respect of his transactions. if the returns are not filed in time, the said declaration will not be forthcoming as per the provisions of section 18-b and sub-section (8) will automatically be attracted in respect of the transactions which have taken place prior to the date of notification. a subsequent notification will obviously give chance to the money-lender to file return of loans advanced by him between the two dates of the notification.' there is no warrant for this view of.....
Judgment:

Misra, C.J.

1. This application under Article 226 of the Constitution of India seeks to assail the order passed by the authority specified under Section 18-B of the Orissa Money Lenders Act, 1939 (opposite party No. 3) as affirmed in appeal by the authority specified under Sub-section (6) thereof (opposite party No. 2).

2. Petitioner is a registered moneylender under the provisions of the Orissa Money Lenders Act (hereinafter referred to as the 'Act') carrying on business in Berhampur area within the district of Ganjam and in his certificate ofregistration bearing No. 40 of 1973, the amount specified was Rs. 13,25,000/-. The original Act underwent an amendment and by Orissa Act 54 of 1975, Section 18-B was inserted into the star tute. As far as relevant that section provided :--

'(1) The State Government may, from time to time, by notification, require the money lenders or money lenders belonging to any class or carrying on business in any local area, to produce before such authority and by such dateas may be specified in the said notification, all records relating to their business including documents evidencing advance of loans.

(2) The authority specified in the notification referred to in Sub-section (1) shall scrutinize the documents with a view to determining if the transactions exceed the amount for which the money lender has obtained the registration certificate and shall, after giving the money lender a reasonable opportunity of being heard, pass an order declaring the particulars of transactions that are within the amount specified in the said certificate.

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(5) An order made under Sub-section (2) ........... shall forthwith be communicatedto the concerned money lender by the authority who has made the order.

(6) Any person aggrieved by an order passed under Sub-section (2)...........may,within one month from the date of communication of the said order, prefer an appeal before such authority as may be specified in the notification referred to in Sub-section (1).

(7) An order passed under Sub-section (2) ............shall, subject to the order passedin an appeal, if any, be final and shall not be called in question in any Court.'

In exercise of powers under Sub-section (1), the State Government issued a notification dated 11th October 1975, which was published in the Orissa Gazette in an extraordinary issue dated October 15, 1975. The notification was to the following effect:--

'S. R. O. No. 776/75 -- The State Government in exercise of the powers conferred by Section 18-B of the Orissa Money Lenders Act, 1939 as amended by the Orissa Money Lenders (Amendment) Ordinance, 1975, do hereby direct that all registered money lenders carrying on business in Berhampur Tahsil of Ganjamdistrict shall produce the records relating to their business including documents evidencing advance of loans to the Sub-Divisional Officer, Berhampur, within one month from the date of publication of this notification.

Appeal against any order passed by the Sub-Divisional Officer, Berhampur under Sub-section (2) or Sub-section (4) of Section 18-B of the Orissa Money Lenders Act, 1939 shall be preferred to the Collector, Ganjam.'

Petitioner submitted his return to the specified authority on 10-12-1975 and the authority after perusing the return on 12-12-1975, required the petitioner to produce his records and accounts before the Nizarat Officer for a preliminary check. The Nizarat Officer furnished his report pointing out defects and the specified authority after adjourning the matter from time to time ultimately on 18-5-1976, passed the following order:--

'Received the case record. The moneylender, has not furnished the required return showing the transactions of money-lending within the stipulated period. As such he is not entitled to a declaration prescribed under Section 18-B (2) of O. M. L. Act, 1975. In result, as far as the jurisdiction of civil court is concerned the transactions of money-lending made by the money-lender stand liquidated. As such I do not consider any further punitive action against the money-lender. Case closed.'

The State Government issued another notification dated 9th of July, 1976 (Annexure-11) in exercise of the power under Section 18-B of the Act. This notification was published in the Orissa Gazette, Extraordinary, on 17-7-1976 as admitted in paragraph 9 of the counter affidavit of the specified authority. This notification required all registered money-lenders carrying on business in the Tahsil areas specified in colmun (2) to produce records relating to their business including documents within one month from the date of publication in the official gazette. The notification under Annexure-11 was in similar terms as Annexure-1. Petitioner was in jail custody with effect from 10th of August, 1976, and his son representing the family on whose behalf the money-lending licence had been held, offered to produce the accounts to the specified authority on 14-8-1976. Annexure-13 is a copy of the application dated 13-8-1975, wherein, it was pointed out:--

'The petitioner has submitted a list showing the names of his debtors and the amounts advanced and outstanding as was required under law as per the first notification in 1975. The account books were produced for examination.

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Already a return up to 15-11-1975 was submitted. The transactions thereafter and the return could not be submitted earlier as the petitioner has been taken into jail custody on 10-8-1976 before the appointed date 14-8-1976 for returns and in his absence it cannot be prepared,'

This fact has not been denied in the counter affidavit. We must, therefore, proceed on the footing that the petitioner within one month from the second notification had indicated that his accounts up to November, 1975, were already before the specified authority and in fact they had already been checked up. But the transactions beyond November, 1975, up to then had, however, not been produced before the specified authority in time.

'Month' has been defined in Section 2 of the Orissa General Clauses Act to mean a month reckoned according to the British calendar. Sub-section (28) of the same section defines 'notification' to mean a notification in the Gazette. In view of these provisions and the conceded position that the second notification was published in the State Gazette on 17th July, 1976, compliance made within a month from the date of the publication of the notification would be appropriate and in accordance with law. It is not disputed that accounts of the petitioner up to November, 1975, were before the specified authority though in terms of the first notification they had been filed beyond time. In view of the steps taken vide Annexure-13, it cannot be said that the accounts up to November. 1975, were not before the specified authority in time.

Before the appellate authority this question had been argued as would appear from its judgment. The judgment indicates :--

'The learned Advocate for the moneylender argued in my court at some length that although the first return was delayed, he has filed the second return subsequently, and that by virtue of the notification dated 9-7-1976, the State Government have given one month's time to file returns before the sameS. D. Os. including the S. D. O., Berhampur in respect of Berhampur tahsil (among other tahsils). To this, the learned Advocate for the third party argued that this notification is for those money-lenders who did not avail of the original notification of 1975 and not for those who had already filed their returns as per that notification. Be that as it may, the use of the expression from time to time in the first sentence in Section 18-B, Sub-section (1), clearly indicates that the State Government will not stop after one notification, but from time to time may give chances to the money-lenders to file their returns. This action is considered necessary under the law obviously with the intention of protecting the loanees of the moneylenders from usurious practice. But once a notification is issued, it is incumbent on the money-lenders to file returns and obtain declaration under Section 18-B (2) of the Act from the competent authority in respect of his transactions.

If the returns are not filed in time, the said declaration will not be forthcoming as per the provisions of Section 18-B and Sub-section (8) will automatically be attracted in respect of the transactions which have taken place prior to the date of notification. A subsequent notification will obviously give chance to the money-lender to file return of loans advanced by him between the two dates of the notification.'

There is no warrant for this view of the appellate authority. Section 18-B (1) of Act vests authority in the State Government to notify from time to time. It was open to the State Government to restrict the operation of the second notification to transactions after the first notification. In the second notification, there is no indication of any such restriction. In the absence of such restriction, it cannot be assumed, as has been done by the appellate authority, that the State Government intended the second notification to cover transactions of money-lending which took place after the date of the first notification. It is true that unless there be compliance with Sub-section (2), in view of the mandate in Sub-section (8), no court would entertain any claim and if there be no notification by the State Government and no compliance of Sub-section (2), the money-lender would not be in a position to take the assistance of thecourt for recovery of his loan. While inevitably that would be the consequence for inaction, it does not justify the conclusion of the appellate authority that even though the second notification did not indicate the transactions after the first notification were to be accounted for, such a restriction must be implied. In the facts of the case, there is no escape from the position that there was compliance with the second notification by intimating to the specified authority that the accounts up to November, 1975, which had already been produced were before the authority and the same might be looked into. The specified authority as also the appellate authority have clearly gone wrong in refusing to take steps under the statute in respect of transactions up to November, 1975.

3. The main question that has been canvassed before us is whether the specified authority has power to condone delay by extending the limitation when moved under Section 5 of the Limitation Act or 1963. Section 29(2) of the Limitation Act is relied upon in support of the submission. That subsection provides:--

'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.''

Indisputably the provision of Sub-section (2) of Section 29 is different from the corresponding provision of the earlier Act of 1908. The new Act extends the application of provisions of Sections 4 to 24 unless there be exclusion in the special Act while the old Act required specified provision to make these sections applicable to the special Act. Mr. Mohanty for the petitioner contends that by virtue of Section 29(2) of the Limitation Act of 1963, Section 5 is applicable to a case of this type and when power under that section had been asked to be exercised, the authority under the statute should have examined tofind out whether a case for extending time had been made out. But under a mistaken impression that the provision has no application, the specified authority has refused to exercise jurisdiction duly vested in him under the law. It is contended that the appellate authority fell into the same error while concurring with the specified authority.

Mr. Mohanty does not contend that the specified authority is a 'court', but relies on a Bench decision of this Court in the case of Raghunath Agarwalla v. State of Orissa, (1975) 41 Cut LT 297 : (1975 Tax LR 2075), where this Court has taken the view that though the Tribunal under the Orissa Sales Tax Act was not a court, yet in view of the language of Section 29(2) of the Limitation Act, the provisions of Section 5 thereof would be attracted. Learned Additional Government Advocate, on the other hand, has contended that the Limitation Act applies to courts only and unless by statutory provision, the provisions of the Limitation Act would be extended to quasi-judicial authorities not being courts, the provisions of the Limitation Act cannot be applied on the basis of Section 29(2) thereof. Series of authorities have been cited before us by counsel for both sides in support of their respective propositions.

Sub-section (1) of Section 18-B of the Act vests the State Government with power to notify the date within which the records relating to the business including documents evidencing advance of loans are to be produced before the specified authority. The section does not at all envisage any application to be filed. The only step contemplated by Sub-section (1) is that the money-lender shall produce before the specified authority all the records relating to the business including documents evidencing advance of loans. The requirement under Sub-section (1) of Section 18-B not being in relation to filing of suits, appeals or applications, Sub-section (2) of Section 29 of the Limitation Act does not. cover a case of this type. It is not Mr. Mohanty's case that whenever any action not being filing of a suit, appeal or application, is required by any statute to be done, the aid of Section 5 of the Limitation Act can he invoked through the mechanism provided under Section 29(2) of the Limitation Act. We are, therefore, inclined to think that Sub-section (2) of Section 29 does not cover a case of this type.

Undoubtedly, the amendment which brought in Section 18-B into the statute was inserted into the Act with a view to introducing further regulations on the money-lender. This was a beneficial legislation for the loanees and with a view to doing it the Amending Act brought in welfare provision. The legislative intention being regulation and the period to be fixed for compliance having been statutorily authorised, we think that a clear direction to comply within the date fixed and thus by implication to exclude the scope for extension of time had really been intended.

This view is supported by the Full Bench decision of the Allahabad High Court in the case of Raja Pande v. Sheopujan Pande, AIR 1942 All 429, and the Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 has upheld this view. We are, therefore, inclined to think that to the facts of the present case the principle indicated by the Division Bench of this Court in the sales tax matter in (1975) 41 Cut LT 297: (1975 Tax LR 2075) (supra) would have no application for the reasons indicated above and petitioner's contention that the specified authority had jurisdiction to extend the time must be repelled. We accordingly reject the argument of Mr. Mohanty for the petitioner that the authorities under the Act had illegally refused to exercise jurisdiction vested in them under the law. In view of the admitted position that accounts had not been produced before the specified authority for the period beyond November, 1975, the petitioner is not entitled to the relief for the same up to the date of the second notification.

4. On the analysis presented above, this writ application succeeds in part. We quash the orders of the specified and the appellate authorities and direct issue of a writ of mandamus to the opposite party, specified authority to issue the requisite certificate contemplated under Section 18-B (2) of the Orissa Money Lenders Act to the petitioner in respect of the money lending transactions up to November, 1975, within two months from now. As success is divided, parties are directed to bear their own costs.

P.K. Mohanty, J.

I agree.


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