M.Naina Mohamed Vs The Tashildar

PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the first respondent in his proceedings in Na.Ka.6190/2018/A6, dated 02.07.2019 and quash the same as illegal in so far as, the interest portion alone and consequently, to direct the respondents 2 to 5 to return the pledged gold to the petitioner without insisting for payment of interest within a time frame fixed by this Court.

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For Petitioner :Mr.T.Pradeep For R1 & R6 :Mr.S.Shaji Bino Special Government Pleader For R2 to R5 :Mr.A.Arul Jenifer *****

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O R D E R

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The petitioner seeks writ of certiorarified mandamus to quash the proceedings of the Tahsildar, Aranthangi, Pudukottai District, in Na.Ka. 6190/2018/A6, dated 02.07.2019 and consequently, to direct the respondents 2 to 5 to return the pledged jewels to the petitioner without insisting for payment of interest within a time frame fixed by this Court.

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W.P.(MD)No.16181 of 2019

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There is no dispute in the relationship between the parties. The writ petitioner had pledged gold jewels to an extent of 1667 grams with the second respondent, M/s.Meenal Bankers. He had also pledged 8 grams of gold jewels with the third respondent, M/s.Sri Kumaran Bankers. He pleads no receipts were issued either by M/s.Meenal Bankers or by M/s.Sri Kumaran Bankers. I have to point out here that the second and third respondents are registered pawnbrokers within the meaning of the Tamil Nadu Pawn Brokers Act, 1943. They have secured licence and they are carrying on their business.

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The petitioner pleads he attempted to redeem the pledged items from the respondents 2 and 3. I have to take note of the relationship between the respondents 2 and 3. Meenal is the mother of Subbiah and she is the licensee for M/s.Meenal Bankers and Subbiah is the licensee of M/s.Sri Kumaran Bankers. The husband of Meenal and the father of Subbiah is one Ganesan Chettiar.

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The petitioner pleads that on 23.08.2011, he received a lawyer's notice issued by Ganesan Chettiar stating that as the petitioner had not

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redeemed the jewels, which he had pledged in the years 2005 and 2008, the jewels have been sold in public auction. Taken aback on being intimated about the sale of the jewels, the petitioner approached the revenue authorities and alleged that the pawnbrokers had defrauded him. The Revenue Divisional Officer/sixth respondent initiated proceedings and came to a conclusion that the allegation that the jewels have been sold by the respondents 2 and 3, was a concocted story. Consequently, he suspended the licence of M/s.Meenal bankers and M/s.Sri Kumaran Bankers.

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As the mere suspension of the licence did not put an end to his agony, the petitioner approached the District Collector, Pudukottai District; Revenue Divisional Officer, Aranthangi and the Tahsildar, Aranthangi Taluk, by way of a representation dated 20.06.2018, calling upon them to retrieve his jewels and to return the same to him. On 21.08.2018, the Tahsildar issued an enquiry notice. As no tangible action had been initiated by the Tahsildar, Aranthangi, Pudukottai District, the petitioner filed a writ of mandamus directing the Tahsildar to initiate action on his representation.

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W.P.(MD)No.16181 of 2019

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This writ petition in W.P(MD).No.24882 of 2018 was disposed of on 24.01.2019. A direction was issued to the Tahsildar to complete the enquiry initiated by him on 21.08.2018 within a period of three(3) weeks. Despite this direction, the Tahsildar did not proceed further. Hence, the petitioner initiated contempt proceedings in Cont.P.(MD).No.701 of 2019. When the contempt was taken up for hearing, the first respondent therein/ Tahsildar informed this Court that he had passed an order on 02.07.2019. Taking note of the fact that the order passed in W.P(MD).No.24882 of 2018 had been complied with, the contempt petition was closed. Option was given to the petitioner to challenge the order by way of a separate proceeding. Hence, this writ petition.

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Rule nisi was issued in the writ petition and Mr.A.Arul Jenifer had entered appearance for the contesting private respondents. Mr.Shaji Bino appears for respondents 1 and 6.

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I notice that in the mofussil areas, an order to redeem the jewels cannot be passed by the Tahsildar, but can be passed only by the Revenue

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Divisional Officer. Therefore, I suo motu impleaded the Revenue Divisional Officer as the sixth respondent to this writ petition.

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Before I enter upon judgment in the matter, there are few considerations, which have to be noticed in this case.

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(i) the relationship between the petitioner and the respondents 2 to

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5 is not in dispute. The petitioner is the owner of the jewels and the respondents are the money lenders ;

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(ii) Ganesan Chetttiar, the husband of the fourth respondent and the father of the fifth respondent, had pleaded that the jewels have been sold and the Revenue Divisional Officer came to a conclusion that the statement made is a false one.

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Though Mr.A.Arul Jenifer sought to raise a plea that what was deposited was only 1611.500 grams, I should point out that in the detailed counter affidavit, that had been filed by the respondents, such a plea had not been taken. In fact, during the course of enquiry before the first respondent, the respondents 2 to 5 had taken a stand that what was pledged was only 1445.500 grams of gold. A perusal of the lawyer's

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notice issued by Thiru.Ganesan Chettiar shows that he had not specified the amount of gold that had been sold in the alleged public auction held by the respondents 2 to 5. Apart from that, though the petitioner has specifically pleaded about the quantum of gold that had been pawned by him to the respondents 2 to 5, the long counter affidavit, that has been filed to the same, does not controvert the quantum of gold pawned. Therefore, necessarily, this Court has to come to a conclusion on the principle of non-traverse that the petitioner had pledged 1667 grams of gold to the second respondent and 8 grams of gold to the third respondent.

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Another interesting point raised by Mr.A.Arul Jenifer is that as

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the transaction between the petitioner and the respondents 2 to 5 falls within the realm of contract, the petitioner would necessarily have to approach the civil Court and the writ petition is not maintainable.

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It is here that I have to refer the Rule 5(5) of the Tamil Nadu

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Pawn Brokers Rules of 1943. The said Rule reads as hereunder:

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“5.(5)It shall be open to the pawners to seek the help of, in the case of the city of [Chennai] [Substituted for the word 'Madras' by section 3 of the City of Madras (Alteration of Name) Act, 1996 (Tamil Nadu Act 28 of 1996).] the Tahsildar concerned or the Personal Assistant (General) to the Collector of [Chennai] [Substituted for the word 'Madras' by section 3 of the City of Madras (Alteration of Name) Act, 1996 (Tamil Nadu Act 28 of 1996).] or the Revenue Divisional Officer in other district, for redemption of their pledges. The Tahsildar concerned or the Personal Assistant (General) to the Collector of [Chennai] [Substituted for the word 'Madras' by section 3 of the City of Madras (Alteration of Name) Act, 1996 (Tamil Nadu Act 28 of 1996).] or the Revenue Divisional Officer, in other districts, when so approached by the pawners for the redemption of their pledged articles, shall cause to verify the accounts of the pawnbrokers as well as the receipts of the pawners, determine the amount of principal and the interest due from such pawners from the date of pledge till the period so required by the pawners after deducting the interest, if any, collected by the pawnbrokers and collect the amount so arrived from the pawners, after giving a token receipts to the pawners for the amounts received. The amounts so obtained from the pawner for redemption may be entered in the subsidiary cash book maintained in the Taluk Office. After redemption of the articles, they may be handed over to the pawner, after collecting the token receipt. The receipt received from the pawnbroker for the redemption of the articles

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may be pasted in the subsidiary cash book maintained in the Taluk Office.

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A perusal of the Rule shows that in the city of Chennai, a pawner can approach two authorities, namely, Tahsildar and Personal Assistant (General) to the Collector of Chennai. In the areas outside the city of Chennai, a pawner can take the assistance of the Revenue Divisional Officer for redemption of his pledge. When the Rule permits a party to approach the specified authority for the purpose of redeeming their pledged items, the plea of Mr.A.Arul Jenifer that they have to approach only the civil Court, cannot stand the moment's scrutiny and hence, it is rejected.

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As the impugned order had been passed by an authority, who

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does not have the jurisdiction to deal with the same, the writ petition necessarily has to succeed. Accordingly, the Writ Petition is allowed. The impugned order stands quashed.

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Parties have been litigating for nearly a decade. They have

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been before the Revenue Divisional Officer, the Tahsildar, before this Court by way of a writ petition and a contempt petition. Yet, the litigation is yet to see its end. Therefore, by merely quashing the proceedings, it is not going to put an end to the agony of the petitioner or the respondents 2 to 5. Hence, I am passing the following order:

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(i) The impugned order passed by the Tahsildar, Aranthangi, Pudukkottai District, in Na.Ka.6190/2018/A6, dated 02.07.2019, is set aside;

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(ii) The sixth respondent/ Revenue Divisional Officer, Aranthangi shall take on file the petition of the writ petitioner on 20.06.2018. For easy reference, a fresh copy of the said representation shall be sent by the petitioner to the sixth respondent forthwith;

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(iii) Thereafter, the Revenue Divisional Officer, Aranthangi shall issue notice to all the parties. He shall verify the accounts of the respondents 2 and 3 as well as the receipts, if any, that may be produced by the writ petitioner;

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(iv) He shall determine the amount of principal and interest due from the pawner to the money lender, after giving due credit to any

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payment, if any, that has been made by the pawner to the money lender;

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(v) He shall, after arriving at the amount, collect the same from the