Jharkhand High Court
Dayal Prajapati vs The State Of Jharkhand on 29 August, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 792 of 2018
With
I.A. No. 836 of 2021
1. Dayal Prajapati, aged about 59 years, son of Kalicharan Prajapati.
2. Mahendra Prajapati, aged about 51 years, son of Kalicharan Prajapati.
3. Tarkeshwar Prajapati, aged about 41 years, son of Kalicharan
Prajapati.
4. Chintwa Devi, aged about 45 years, daughter of Kalicharan Prajapati.
All residents of Village-Ramgarh, Tola Parsotie, P.O.-Ramgarh, P.S.-
Ramgarh, District-Ramgarh, Jharkhand.
... ... Private Respondents/Appellants
Versus
1. The State of Jharkhand.
2. Commissioner, North Chhotanagpur Division, Hazaribagh P.O. &
P.S. Hazaribagh, District-Hazaribagh.
3. Additional Collector, Hazaribagh, P.O. & P.S. Hazaribagh, District-
Hazaribagh.
4. Executive Magistrate, Sadar-cum-Special Officer, Scheduled Area
Regulation, Hazaribagh, P.O. & P.S.-Hazaribagh, District-
Hazaribagh.
... ... Respondents/Respondents
5. Tejan Munda, Son of Late Piyaso Devi.
6. Pawan Munda, Son of Tejan Munda.
7. Bijendra Munda, Son of Tejan Munda.
8. Manjeet Munda, Son of Tejan Munda.
9. Suman Kumari, Daughter of Tejan Munda.
(5) to (9) all residents of Village-Parsotiya, Bazar Tanr, Ramgarh
Cantt., P.O. + P.S. + District-Ramgarh.
... ... Petitioners/Private Respondents
[2]
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Ayush Aditya, Advocate
For the State : Ms. Shrestha Mehta, AC to SC-II
For the Pvt. Resp. : Mr. Rajeev Ranjan Tiwary, Advocate
Mr. Abhijeet Kumar Singh, Advocate
----------------------------
ORAL JUDGMENT
11/Dated 29th August, 2022 I.A. No. 836 of 2021:
1. This interlocutory application has been filed for condoning the delay of 03 days, which has occurred in preferring this appeal.
2. No counter affidavit to the delay condonation application has been filed.
3. Heard the parties.
4. Having heard the learned counsel for the parties and considering the statements made in this application, we are of the view that the appellants were prevented from sufficient cause in preferring this appeal within time.
5. Accordingly, this interlocutory application is allowed and the delay of 03 days in preferring this appeal, is hereby condoned.
6. With the consent of the parties, the matter has been heard at this stage for final disposal.
LPA No. 792 of 2018:
7. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 14.09.2018 passed by the learned Single Judge of this Court in W.P.(C) No. 13 of 2002, whereby and whereunder, the writ petition has been allowed by [3] quashing the order dated 24.08.1987 passed by Executive Magistrate, Sadar, Hazaribagh by which the application for restoration of land has been rejected; order dated 02.05.1992 passed by the Additional Collector, Hazaribagh by which the appeal being S.A.R. Appeal No. 64 of 1987 has been dismissed; as also the order dated 16.10.2001 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh in Lands Restoration Revision No. 62 of 1992 by which the order passed by the appellate authority in S.A.R. Appeal No. 64 of 1987 has been declined to be interfered with, has been quashed and set aside by allowing the application for restoration.
8. The brief facts as per the pleading made in the writ petition required to be enumerated, read as hereunder:
The fact of the case is that the land of Khata No. 141 of Mouza Parsotie, P.S.-Ramgarh, District-Ramgarh was recorded in the name of Ledu Munda and others, the ancestors of the petitioners. While Khata No. 141 corresponding to Plot No. 2391 situated at Village-Ramgarh was possessed by Nandu Munda, the legal heir of the recorded tenant. The petitioners filed an application for restoration of 0.13 acres of land of Khata No. 141, Plot No. 2391 of village Ramgarh. Notices were issued to the private respondents and thereafter, an inspection was conducted by the Circle Officer who had submitted his report vide letter No. 478 dated 24.07.1987, wherein, it was reported that the private respondents are in possession of the disputed land since the year 1982 and prior to this, the vendor of the private respondents were reportedly in possession since 1964. The Circle Officer, however, found that there [4] was no document shown as to how the private respondent came in possession of the property.
The petitioners have also filed a petition for amendment on 08.07.1987 mentioning therein that the plot number in the application was wrongly mentioned as 2392 instead of 2391 which was allowed vide order dated 24.08.1987. The private respondents had initially filed a reply to the original application on 19.03.1987 and a reply to the amended application was also filed by the private respondents after amendment was allowed.
The specific case of the petitioners before the authority was that the petitioners were dispossessed from the property by virtue of sale- deed registered by one Jadunath Prajapati in the year 1982 and since then, they were in dispossession of the aforesaid land. The application for restoration of land was rejected vide order dated 24.08.1987 directing the respondent no. 5 to pay a sum of Rs. 2,000/- as compensation to the petitioners and the order was passed on the basis of the report of the Circle Officer recording therein that the recorded tenant was dispossessed since 1964 which was much beyond the period of 12 years. The date of dispossession was considered to be in the year 1964 since it was claimed by the respondents that the encroachment case was initiated being Encroachment Case No. 89 of 1964, wherein, one Bigu Prajapati was found in possession of the property to the extent of 45 decimals of land out of 61 decimals of land in Plot No. 2391 and that thereafter, the property was settled in his favour and rent receipts were also issued.
[5]
The petitioners filed appeal before the appellate authority which was numbered as S.A.R. Appeal No. 64 of 1987 which was also dismissed vide order dated 16.09.1987. Thereafter, the petitioners, being aggrieved with the order passed by the appellate authority, preferred revision which was numbered as Restoration Revision No. 113 of 1987 before the Commissioner, North Chhotanagpur Division, Hazaribagh and the said authority remanded the matter before the appellate authority for fresh consideration as per the order passed on 27.10.1988.
The appellate authority, in terms of the order of remand, has passed an order again basis upon the report of the Circle Officer dated 24.07.1987 indicating that the petitioners were disposed from the property as back as in the year 1964 which was beyond the prescribed period of 12 years and accordingly, dismissed the appeal. Against this, a fresh revision was filed which was numbered as Land Restoration Revision No. 62 of 1992, the same was also rejected vide order dated 16.10.2001. The writ petitioners, being aggrieved with the order passed by the authorities, filed a writ petition being W.P.(C) No. 13 of 2002.
The learned Single Judge has interfered with the same and has quashed and set aside the orders of the authority by allowing the application of restoration of land, which is the subject matter of the instant intra-court appeal.
9. Mr. Ayush Aditya, learned counsel for the appellants/respondents (respondents in the writ petition) has taken the following grounds: [6]
(i) The provisions of the Chhotangpur Tenancy Act, 1908 (hereinafter referred to as the Act, 1908) is not applicable in the area where the land is falling, i.e., it comes in the district of Ramgarh since the said district comes under the jurisdiction of the Ramgarh Cantonment Board and the provisions of the Act, 1908 has not been made applicable after coming into effect of the Act XLV of 1982, i.e., the day the Act received assent, i.e., 28.04.1982 and published in the Bihar Gazette Extraordinary No. 420 dated 29.04.1982 in Hindi but herein, the land in question has been transferred prior to enactment of the aforesaid Act, i.e., sometime in the month of January, 1982, as such, the provisions of the Act, 1908, which was made applicable from April, 1982, will not be given retrospective application adversely affecting the deed of transfer executed in the month of January, 1982.
(ii) The issue of limitation has been raised, since according to the appellants, encroachment proceeding was initiated sometime in the year 1964 being Encroachment Case No. 89 of 1964, wherein the vendors in interest of the appellants was in possession in the year 1964 and since restoration application has been filed on 19.03.1987, which admittedly, is beyond the period of 12 years, as such, barred by limitation in view of the provision as contained in Section 46 (4-A)(a) of the Act, 1908 and that is the reason, the concerned authority while rejecting the aforesaid restoration application considered that aspect of the matter but the same has [7] not been appreciated by the learned Single Judge in right perspective.
The learned Single Judge has considered the date of transfer from the execution of the sale-deed, i.e., in the month of January, 1982 and taking the period of limitation from the date of transfer and considering the application filed for restoration in the year 1987 within the period of 12 years as the restoration application is required to be filed in view of the provisions of Section 46 (4-A)(a) of the Act. 1908 which cannot be said to be proper consideration of the date of transfer rather the date of dispossession ought to have been considered the day when there was adjudication about the possession of the land in question by the vendor of the appellants, i.e., passed in encroachment proceeding being Encroachment Case No. 89 of 1964 and taking the same in to consideration, the authorities concerned, i.e., original, appellate and revisional, have rejected the restoration application basing upon the report of the Circle Officer, therefore, the order passed by the learned Single Judge by taking the aforesaid fact into consideration, cannot be said to be sustainable.
10. Learned counsel appearing for the State of Jharkhand has defended the order passed by the learned Single Judge taking the ground that the provision of Section 46 (4-A)(a) of the Act, 1908 does not stipulates about the period of limitation to file an application for restoration rather the date of transfer is to be seen considering the period of limitation for [8] filing such application as would appear from the provisions of Section 46 (4) (a) of the Act, 1908.
The learned Single Judge, after considering the aforesaid provision, is correct in coming to the conclusion that the period of limitation is required to be counted from the day when the transfer of land has been executed through registered sale-deed which was done sometime in the month of January, 1982, as such, came to conclusive finding that the restoration application will be said to have been filed within the period of limitation, i.e., within the period of 12 years as required under the provision to Section 46 (4-A)(a) of the Act, 1908.
11. So far as the issue of non-applicability of the Act, 1908 is concerned, the order passed by the learned Single Judge cannot be said to suffer from an error since the contention of the appellant that the Act, 1908 has been made applicable in the Ramgarh Cantonment Area by virtue of the enactment of the Act 45 of 1982 which came into being on 28.04.1982 but prior to enactment of the aforesaid Act, there were ordinances by virtue of the effect of that ordinances, the provision of CNT was well applicable from the year 1980, as such, on that ground also, no interference can be shown to the impugned order.
12. Learned counsel for the private respondents has defended the order passed by the learned Single Judge by accepting the ground agitated on behalf of the respondent-State of Jharkhand.
13. We have heard the learned counsel for the parties, perused the documents available on record as also the findings recorded by the learned Single Judge.
[9]
14. The fact which is not in dispute in this case is that the land in question comprising of an area of 13 decimal of Plot No. 2391 of Khata No. 141, situated at Village-Ramgarh, Tola Parsotie, District-Hazaribagh has been claimed to be the land of the raiyats, which according to the private respondents has been transferred without observing the mandate as contained in Section 46 (4-A)(a) of the Act, 1908, therefore, an application for restoration of the land has been filed. The aforesaid application had been entertained and on being called upon, the appellants had appeared and contested the case by taking the plea about non-maintainability of the restoration application since the application for restoration has been filed beyond the period of limitation as provided under Section 46 (4-A)(a) of the Act, 1908, i.e., beyond the period of 12 years. The period of limitation has been sought to be counted on the basis of initiation of the proceeding being Encroachment Case no. 89 of 1964. The concerned authority called upon a report from the Circle Officer. The Circle Officer submitted its report as contained in Letter No. 478 dated 24.07.1987 wherein it was reported that the appellants are in possession of the disputed land since the year 1982 and prior to this, vendors of the appellants was reportedly in possession since the year 1964. The year 1964 has been taken into consideration in the report submitted by the Circle Officer on the basis of the initiation of proceeding being Encroachment Case No. 89 of 1964. The concerned authority, on the basis of the report submitted by the Circle Officer, rejected the restoration application vide order dated 24.08.1987 directing the respondent No. 5 to pay a sum of Rs. 2,000/- as compensation to the petitioners. The private respondents, the petitioners, preferred an appeal before the appellate authority being [10] S.A.R. Appeal No. 64 of 1987 which was also dismissed vide order dated 16.09.1987. The writ petitioners/private respondents herein, preferred a revision being No. 113 of 1987 before the Revisional Authority, Commissioner, North Chhotanagpur Division, Hazaribagh, wherein the revisional authority has quashed the order passed by the appellate authority and remitted it before the appellate authority for fresh consideration as would appear from the order dated 27.10.1988 wherein at paragraph-8, the following directions were passed:
"8. This is a fit case to be remanded to the Additional Collector who should examine the claims especially the points mentioned hereunder:-
(i) The so called encroachment case no. 89/64 should be carefully seen.
Who were the parties in this case? Was the recorded tenant made a party? How encroachment proceeding was initiated in respect of a raiyati plot? How a raiyati plot was reportedly settled with Bigu Prajapati, father of Jadunath Prajapati? To what extent the settlement claimed by Bigu Prajapati was just and legal? Is it not abinitio void.
(ii) Was the name of Bigu Prajapati mutated on the basis of orders passed in encroachment case no. 89/64. Was there any order of mutation by the competent authority. If so, the details there of should be found out.
(iii) Position of payment of rent in respect of 45 decimals of land in plot no. 2391 claimed to have been settled with Bigu Prajapati from 1964 onwards should be ascertained. Were any rent receipts were issued. The basis for opening Jamabandi in the name of Bigu Prajapati should be brought on record.
(iv) It should be especially ascertained whether the recorded tenant was made a party in mutation cases.
(v) Year of dispossession of the tribal should be ascertained the documents as well as by local witnesses."
15. The appellate authority has again considered the issue on the basis of the order of remand after calling upon the appellants herein, but again the view earlier taken has been affirmed by taking into consideration the order passed in Land Encroachment Case No. 89 of 1964 by holding therein that since the records of Land Encroachment Case No. 89 of 1964 are not available, as such, it could not be ascertained as to who were the parties in the said case and therefore, it could also not be ascertained as to whether the recorded tenant was made a party in the [11] proceeding or not. It has also been observed in the aforesaid order that it could not be ascertained as to how in respect of the property which is recorded in the record-of-rights in the name of recorded tenant, a land encroachment proceeding could be initiated as land encroachment case can be initiated only in connection with government properties. Further, the appellate authority has recorded that the rent receipts, which were issued to the private respondent, did not indicate any case number and accordingly, it could not be ascertained as to vide which mutation case, the land was mutated in favour of the private respondent.
But, in spite of the aforesaid findings, the appellate authority again, relying upon the inspection report of the Circle Officer dated 24.07.1987 indicating that the petitioners were dispossessed from the property as back as in the year 1964 which was beyond the prescribed period of 12 years and accordingly, dismissed the appeal. The writ petitioners/private respondents herein, have again filed a revision before the Revisional Authority being Land Restoration Revision No. 62 of 1992. The Revisional Authority has also considered the fact about the applicability of the provision of the Act, 1908 within the area falling under the Ramgarh Cantonment Board and rejected the aforesaid revision vide order dated 16.10.2001.
16. The orders passed by the original authority, appellate authority as also the revisional authority have been assailed by the private respondent by filing writ petition being W.P.(C) No. 13 of 2002 wherein the orders passed by the concerned authorities have been quashed and set aside by allowing the restoration application, which is the subject matter of the instant intra-court appeal.
[12]
17. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to deliberate upon the object and intent of the Act, 1908.
18. It would be evident from the Preamble of the Act that the Act has been enactment by way of beneficial legislation to protect the raiyati rights of the raiyats as also an Act to amend and consolidate certain enactments relating to the law of Landlord and Tenant and settlement of rents in Chota Nagpur. The Act imposes restriction of transfer of land by raiyats as would be evident from the provision of Section 46 of the Act by which no transfer by a raiyat of his right in his holding or any portion thereof - (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent:
Provided that a raiyat may enter into a „bhugut bundha‟ mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 for any period not exceeding fifteen years:
Provided further that, -
(a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled [13] Tribes and], who is a resident within the local limits of the ares of the police station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate;
(c) any occupancy-Raiyat may, transfer his right in his holding of any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and
(d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.] [14]
19. The provision as contained under sub-section (4-A)(a) of Section 46 which has been inserted by Section 3 (c), reads as under:
"[(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this sub-
section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit.
(c) If after holding the inquiry referred to in clause (a) of this sub- section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed:
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor."
20. It is evident from the provision of Section 46 (4-A)(a) of the Act, 1908 that the Deputy Commissioner of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso [15] to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1);
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof:
21. It would be evident from the provision as contained under Section 46 (1) read with Section [46(4-A)(a)] that restriction has been imposed on the transfer of the right by raiyat, if made by means of mortgage, lease, sale, gift or any other contract or agreement. It would further be evident from the provision of Section [46(4-A)(a)] that the Deputy Commissioner has been conferred with the power to annul the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1) by holding an inquiry but to entertain such application if it is filed within a period of 12 years from the date of transfer, therefore, the word "transfer" is of paramount importance and the period of limitation is to be counted from the date of transfer.
22. The admitted case herein of the appellant is that the land in question has been transferred in their favour by virtue of sale deed executed sometime in the month of January, 1982, however, the plea is being taken that the aforesaid land which has been transferred in favour of the appellants by the vendor who were in possession since the year 1964 as would appear from the proceeding of the Encroachment Case No. 89 of 1964, therefore, the admitted case of the appellants is that the appellants are taking the plea of dispossession of the raiyat, the predecessor in [16] interest of the writ petitioners treating it the date of possession occurred sometime in the year 1964 but the date of dispossession merely on the ground of the encroachment proceeding cannot be said to be conclusive prove of transfer since the encroachment proceeding under the Bihar Public Land Encroachment Act is always to be made applicable against the public land and not against the land belonging to the raiyat.
However, the same is not the issue to be considered here rather, the issue which is to be considered is, what will be the date of transfer for determining the issue of limitation to count it the period of 12 years in filing the restoration application.
23. The provision of Section 46 does not stipulates the limitation to be counted from the date of „dispossession‟ rather it is to be counted from the date of „transfer‟ and admittedly herein, the date of „transfer‟ as per the case of the appellant itself, is in the year 1982.
The application admittedly has been filed in 1986 which is within the period of five years, as such, the same has been treated to be within the period of 12 years and taking it into consideration, the learned Single Judge has come to conclusive finding that the restoration application of the writ petitioner cannot be construed to be beyond the period of limitation.
24. The learned Single Judge has also observed in the impugned order that the dispossession as has been taken in the point on the basis of the initiation of the encroachment proceeding initiated sometime in the year 1964, cannot be construed to be the valid prove of transfer since the encroachment proceeding can only be initiated against the public land. [17] Further, the date of dispossession since is not a valid date to determine the period of limitation rather it will be the date of „transfer‟ as would appear from the provision of Section 46(1) read with Section 46 (4-A) of the Act, 1908, therefore, if the learned Single Judge has come to conclusive finding of maintaining the restoration treating it to be filed within the period of 12 years by reversing the finding recorded by the Revenue Authorities, the same cannot be said to suffer from error.
25. So far as the issue pertaining to applicability of the Act, 1908 is concerned, the revisional authority has not gone into its root in order to verify as to whether before enactment of the Act 45 of 1982, there was any ordinance in effect or not.
26. This Court, in order to ascertain the aforesaid fact, has passed an order in this proceeding on 15.06.2022, which reads as under:
"Heard the parties.
We make it clear that an issue is being raised by the appellants in this case that the concerned registered sale-deed, which is being questioned in this proceeding on the ground of nullity in view of the provisions of the Chota Nagpur Tenancy Act, was made in the month of January, 1982, whereas, in Ramgarh Cantonment Board, the Chota Nagpur Tenancy Act, was made applicable from April, 1982. Thus, it is contended that since the sale-deed, being not covered under the Chota Nagpur Tenancy Act, cannot be questioned on that ground.
Let the State answer on this question on the next date of hearing. As prayed, put up this case on 20.06.2022."
27. The State of Jharkhand, in terms of the aforesaid order, has filed an affidavit on 28.07.2022 specifically stating therein as under paragraph-8 & 9, which read as under:
"8. That it is humbly stated and submitted that Chapter I of the Chotanagpur Tenancy Act 1908 which states about the enforcement of the Act, which is mentioned herein as follows:-
"Short Title and Extent" - (1) This Act may be called the Chotanagpur Tenancy Act, 1908.[18]
[(2) It extends to [the North Chotanagpur, the South Chotanagpur and Palamau Divisions] including the areas or parts of the areas which have been constituted into a Municipality or a Notified Area Committee under the Bihar and Orissa Municipal Act 1992 (Bihar and Orissa Act 7 of 1922) or which are within a cantonment].
It is pertinent to mention herein that sub section 2 of Section 1 of the Chotanagpur Tenancy Act, 1908 was substituted and amended by Chotanagpur Tenancy (Amendment) Act 1981 (Act of 1982). [(Act 45 of 1982) came into force on 1st date of April 1982. It received assent on 24th April, 1982 and published in Bihar Gazette, dated 30th April, 1982.)
9. That it is humbly stated and submitted that prior to the enforcement of the Chhotanagpur Tenancy Act 1908 within the areas of Ramgarh Cantonment, an Ordinance no. 29 of 1980 was assented on 4th March, 1980 for the first time, which was continued with various ordinances and it lastly became the Act 45 of 1982."
28. This Court has also found from the Annexure-A appended thereto wherein the Gazette notification has been brought on record, i.e., appending Chotanagpur Tenancy Act (Amended) Act, 1982 which has been enacted by virtue of Act XLV of 1982 appended with "Note" to the effect that:
1. Ordinance 29 of 1980 assented on 4th March, 1980 for the first time and got life with various ordinances and lastly became Act, 45 of 1982
2. Act Received assent on 28.4.1982 and Published in Bihar Gazette Extraordinary No. 420, dated 29th April, 1982 in Hindi.
29. It is, thus, evident that prior to enactment of the Act 45 of 1982, there was applicability of the provision of Chotanagpur Tenancy Act in the Ramgarh Cantonment Area by virtue of Ordinance 29 of 1980 assented on 4th March, 1980 for the first time and got life with various ordinances and finally the said Ordinance became Act after receiving assent on 28.04.1982 and its publication in the Bihar Gazette Extraordinary No. 420, dated 29th April, 1982.
[19]
30. Admittedly, herein, the land has been transferred sometime in the month of January, 1982 and by virtue of promulgation of the Ordinance being Ordinance 29 of 1980, the Chotanagpur Tenancy Act was well applicable within the Ramgarh Cantonment Area, as such, point which has been raised about non-applicability of the provision of Chotanagpur Tenancy Act on the day when the land was transferred, is having no substance.
31. This Court, after discussing the factual aspect as per the discussion made hereinbove, has gone across the order passed by the learned Single Judge and found therefrom that the learned Single Judge has not only considered the implication of transfer to be taken into consideration on the basis of the provision of Section 46(1) read with Section 46 (4-A) with its proviso, but the learned Single Judge has also considered the issue of remand as has been passed by the revisional authority in an order passed on 27.10.1988 wherein certain directions were issued for its consideration by the appellate authority as has been quoted and referred hereinabove. However, the appellate authority, without taking into consideration the issue of remand, has gone again into the Encroachment Case No. 89 of 1964, therefore, the finding has been arrived at that when the order had been passed by the higher authority remanding the matter with directions, the lower authority was required to answer the same but instead of doing so, the appellate authority has not appreciated the aforesaid aspect of the matter and again based the finding on the encroachment proceeding without delving upon the issue of remand.
[20]
32. The learned Single Judge, therefore, taking into consideration the fact in entirety, according to our considered view, is correct in interfering with the orders passed by the authorities concerned, as have been impugned in the writ petition, as such, this Court finds no error in the impugned order.
33. Accordingly, the instant appeal fails and stands dismissed.
34. Pending interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saurabh/ A.F.R.