Patna High Court
Chandra Mohan Mahto vs State Of Bihar And Ors. on 8 July, 1987
Equivalent citations: 1988(36)BLJR110
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this writ petition the petitioners challenge the orders as contained in Annexures 4, 5 and 6 passed by the respondent Nos. 2, 3 and 4 respectively whereby and whereunder the said authorities directed that the lands in question be restored by the petitioners in favour of respondent No. 5, in exercise of their powers conferred upon them under Section 71-A of the Chotanagpur Tenancy Act. The only point which has been raised by Mr. J. P. Rajgarhia, learned counsel appearing on behalf of the petitioners, is that the respondent No. 2 had absolutely no jurisdiction to take any evidence for the purpose of finding out as to whether the respondent No. 5 was in fact Lohra by caste and not Lohar.
2. It is admitted at the bar that 'Lohars' are members of the backward classes whereas the 'Lohras' are the members of the Scheduled Tribe. The question as to whether a person would become a member of Scheduled Tribe or not is necessarily a question of fact. In this case, the said question has been decided on the basis of evidence adduced by both the parties. The respondent No. 2 while passing the order as contained in Annexure 4 has taken into consideration all the evidence on record and came to the conclusion that the respondent No. 5 was in fact a member of the Scheduled Tribe being Lohra by caste and not Lohar, as mentioned in the deed of transfer impugned before him, Mr. Rajgarhia in support of his aforementioned submission placed strong reliance upon a decision of Supreme Court in Parasram and Ors. v. Shivchand and Ors. . In that decision it has been held that in the absence of a public notification issued by the President, a person properly described as Mochi in Punjab does not fall within the caste of Chamars as included in the Constitution (Scheduled Castes) Orders, 1950 and Constitution (Scheduled Castes) (Union Territories) Order, 1951 (as amended in 1966).
3. From a perusal of the aforementioned judgment of the Hon'ble Supreme Court it appears that the question arose out of an Election Petition.
4. In the aforementioned Supreme Court decision it has been held that no enquiry can be made as to whether a particular person belongs to any particular caste or sub-caste, which ipso facto does not find place in the notification.
5. It is now well settled that a case is authority for which it decides and not what can logically follow from it. Reference in this connection may be made a well known decision of Quinn Latham 1900-1903 All. E.L.R. page 6. All England Law Reports (Reprint) 1 at p. 6, which principle has been followed in various decisions of this court as also the Supreme Court of India vide 1973 Patna 194, 1978 Patna 298 ; 1965 SC 1887 ; 1985 PLJR 549.
6. The case at hand stands completely on a different footing. As seen hereinbefore it has been admitted at the bar that if the Respondent No. 3 in fact was a member of Lohra community he would be a member of the Scheduled Tribe. The respondent No. 5 asserted that he is a member of Scheduled Tribe but by mistake in the record of rights his caste has been mentioned as 'Lohar' instead of 'Lohra'.
7. Under the provisions of Section 83 (4) of the Chotanagpur Tenancy Act an entry in the record-of-rights merely raises a presumption in favour of correctness thereto but such a presumption is a rebuttable one. From various decisions of this court particularly in Amrendra Nath Dutta v. State of Bihar and Ors. 1983 (31) B.L.J.R. 609, it would appear that Scheduled Areas Regulation, 1969 whereby and whereunder various provisions of the Chotanagpur Act and other Acts were amended is a beneficial legislation so far as the members of the Scheduled Tribe is concerned. The true construction of the provision of the Bihar Scheduled Areas Regulation is routed in the legislative history and can be well construed in that prospective background in Bina Rani Ghosh v. Commissioner, South Chotanagpur Division 1985 P.L.J.R. 732 : 1985 B.L.T. (Rep.) 279 (F.B.), wherein it has been held that Section 71-A was inserted in the Chotanagpur Tenancy Act by Bihar Scheduled Areas Regulation, 1969 for protecting the interest of the raiyats who are members of the Scheduled Tribe. The said Full Bench decision has been cited with approval by another Full Bench of this Court in Paritosh Maity v. Shashi Ram Maity S.A. No. 36 and 114 of 1977 (R), decided on 11-12-1986. [Since reported in 1987 BLT (Rep) 131 (FB)].
8. By reason of the provision of the aforementioned Scheduled Areas Regulation, 1969, power has been conferred upon the Deputy Commissioner appointed under the Act to annul a transfer made by a member of the Scheduled Tribe in favour of a person if such transfer has been made in contravention of the provision of Section 46 or any other provision of Chotanagpur Tenancy Act or such transfer has been obtained by fraudulent method. By reason of the provision of the said Act the Deputy Commissioner is even empowered to ignore an admission made by a person who is a member of the Scheduled Tribe. The aforementioned legislation even goes to the extent that even a Civil Suit by and between a member of Scheduled Tribe and a person who is not a member of Scheduled Tribe, the Deputy Commissioner has to be impleaded as a party obviously for the purpose of safeguarding the interest of such Scheduled Tribe.
9. The purpose for bringing the aforementioned legislation is obvious. In the Scheduled Areas by reason of the provision of Chotanagpur Tenancy Act and other similar legislation, the raiyati interest of the member of the Scheduled Tribe were sought to be protected so that the raiyati holding cannot be transferred by a member of.
10. The Full Bench of this Court in Bina Rani Ghosh's case (supra) held that for the purpose of construction of the provisions of Section 71-A of the Chotanagpur Tenancy Act the word 'transfer' has got to be given a very wide meaning and has held that even a surrender is a transfer within the meaning of the provision thereof.
11. Scheduled Areas Regulation, 1969 was framed for the purpose of eliminating hardship caused to the members of the Scheduled Tribe by a person who is not the member of the Scheduled Tribe by getting deeds of transfer executed by them by adopting various fraudulent methods including obtaining compromise decree in civil suits.
12. The intention and object of the framers of the regulation behind such legislation is to undo the wrongs committed to the members of the Scheduled Tribe. The anxiety of the part of the framers of the Scheduled Area Regulation to save the interest of the members of the Scheduled Tribe who stood exploited at the hands of others in writ large.
13. It may be relevant to mention here that even Article 65 of the Limitation Act was amended by the Scheduled Areas Regulation. In the case of Amrendra Nath Dutta v. State of Bihar 1983 (31) B.L.J.R. 609 a Full Bench of this Court held that the limitation under the Regulation applicable to a member of Scheduled Tribe in terms of the amended Article 65 is 30 years and not 12 years. Under the provision of the Regulation a very wide and extensive powers has been conferred upon the Deputy Commissioner. The extent of protection to the members of the Scheduled Tribe can also be Judged from the non-obstante clause contained in the aforementioned Regulation, which reads as follows :
Notwithstanding anything to the contrary contained in any other law for the time being in force, the Court shall, in any suit or proceeding relating to the transfer of land of a member of the Scheduled Tribe as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950, require any fact expressly or impliedly admitted by such person to be proved otherwise than by mere admission and the Deputy Commissioner may also produce evidence in rebuttal.
14. Bihar Scheduled Areas Regulation is thus a beneficient and/or welfare legislation so far as the members of the Scheduled Tribe are concerned and as such the same has to be interpreted liberally in their favour. Reference in this connection may be made to Surendra Kr. Verma v. The Central Government, Industrial-Cum-Labour Court, New Delhi and Anr. 1980 (41) F.L.R. 315 (S.C.).
15. Having given my anxious consideration over the matter, I am of the opinion, that it is permissible for the Collector to take evidence for the purpose to coming to the conclusion as to whether the 'cases' of a person mentioned in the deed of transfer or the record of rights is a real one or was so mentioned with the object of defeating the provisions made in a suit by a member of Scheduled Tribe would not be final and conclusive in such matter, and evidence can be adduced by the parties to show that such admission is really not correct.
16. In view of the fact that respondent No. 2 while passing orders as contained in Annexure-4 has clearly held that the respondent No. 5 is a member of Scheduled Tribe and such findings are based on evidence and even affirmed by the respondent Nos. 3 and 4 while passing the orders as contained in Annexures 5 and 6, no interference therein is possible under Articles 226 and 227 of the Constitution of India.
17. In the result this writ petition is dismissed. There will be no order as to costs.