Patna High Court
Jageshwar Teli vs State Of Bihar And Ors. on 23 September, 1991
Equivalent citations: 1994(42)BLJR648
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this application the petitioner has prayed for issuance of an appropriate writ for quashing the orders dated 22-4-1983 passed by respondent No. 5 as contained in Annexure-1 ; order dated 16-8-1986 passed by respondent No. 4 in Revenue Appeal No. 30-R 15 of 1983-84 as contained in Annexure-2 as also an order dated 29-12-1986 passed by respondent No. 2 in Revenue Revision Case No. 516 of 1986 as contained in Annexure-3 to the writ application ; whereby and whereunder the said respondents allowed an application filed by the original respondent Nos. 6 to 14 (respondent Nos. 6, 8 and 14 have since died) purported to be in exercise of their power under Section 48 of the Chotanagpur Tenancy Act, 1908.
2. The fact of the matter lies in a very narrow compass.
3. An application was filed by the respondent No. 5 purported to be under Section 71(A) of the Chotanagpur Tenancy Act which was registered as Case No. 8 of 1970. In the said proceeding the petitioner, having been called upon, filed a show-cause contending inter alia therein that the lands in question being Bhumidari lands, the provisions of Section 71(A) of the Chotanagpur Tenancy Act have no application in relation thereto.
4. The respondent No. 5, however, directed restoration of possession of the lands in question in favour of the original respondent Nos. 6 to 14 by an order dated 22-4-1983 which is contained in Annexure-1 to the writ application.
The petitioner preferred an appeal against the Said order which was registered as Scheduled Area Regulation Appeal No. 63-R 15 of 1975-76 and by an order dated 18-7-1978 the said appeal was allowed and the matter was remanded to the respondent No. 5.
5. Upon remand of the case, the respondent No. 5 registered the same as Bhumidar Case No. 10 of 1978 and the petitioner was asked to file show-cause again whereupon he filed his show-cause and adduced evidence.
6. The petitioner inter alia, contended that the period of limitation for restoration of the Bhumidari lands as contemplated under Section 48 of the Chotanagpur Tenancy Act being 12 years, the said application was barred by limitation but the respondent No. 5 by an order dated 22-4-1983 as contained in Annexure-1 to the writ application allowed the same.
7. The petitioner preferred an appeal against the said order which was registered as Revenue Appeal No. 30 R-15 of 1983-84 and the respondent No. 4 by an order dated 16-8-1986 inter alia, held that the date on which the concerned respondents were allegedly dispossessed by the petitioners being not supported by any valid document, the application was not barred by limitation.
The said order dated 16-8-1986 is contained in Annexure-2 to the writ application.
8. A revision application was preferred by the petitioner and by reason of the impugned order dated 29-12-1986, the said application was also dis missed at the stage of admission itself.
9. According to the petitioner, there was an earlier proceeding being M 8 of 1970 wherein a report was called for from the respondent No. 5 and the Circle Inspector, Ratu and in his report the Circle Inspector stated that the land belongs to Bhumidari Khewat No. 12/4 but the land measuring 46 decimals appertaining to Khata No. 438 of Village Pundag was recorded in the Bhujarat register and the said 46 decimals of land belongs to the State of Bihar.
10. According to the petitioner, Karia Munda, father of Pero Pahan. (Munda) (respondent No. 7) settled the lands in question along with his brother Chedia orally in the year 1938 ,wherefor a Sada hukumnama was issued in favour of his grand-father.
The said oral settlement was confirmed again in the year 1947 in respect of 46 decimals of land by a written instrument which is contained in Annexure-4 to the writ application.
11. Allegedly the aforementioned Karia Munda surrendered the land by a registered deed of surrender in favour of the then landlord as is evidenced by Annexure-5 to the writ applicaton; whereupon by way of abundant caution the grand-father of the petitioner also obtained an oral settlement of the lands in question from the then landlord which was followed by the delivery of possession.
12. It was further alleged that upon settlement of the land by Karia Munda, the Bhumihardar also granted rent receipts and the respondents have also been granted rent receipts by the superior ex-landlord Kandarp Nath Sahdeo. The land in question was thereafter recorded in the name of the petitioner after vesting of the zamindari, in the office of State of Bihar and rent is being realised from him.
13. Mr. P. K. Bhowmik, learned Counsel appearing on behalf of the petitioner, drew my attention to the findings arrived at by the respondent No. 5 wherein it has been held that although the petitioner dispossessed the concerned respondents in the year 1497 by obtaining possession of the lands in question and although the said application having been filed in the year 1970 but the same was not barred under the law of limitation, as in his opinion, the prescribed period of limitation was 30 years.
14. It appears that before respondent No. 4 also the petitioner contended that the period of limitation for filing such application is 12 years but it negatived the said contention.
15. Mr. Bhowmik, submitted that as it is admitted that the lands in question is 'Bhumidari' in nature, an application for restoration thereof could be entertained only in terms of Section 48 of the Chotanagpur Tenancy Act.
16. The learned Counsel further submitted that the period of limitation has been prescribed under Sub-section (4) of Section 48 of the Chotanagpur Tenancy Act thereof and in that view of the matter, the repondent Nos. 2, 4 and 5 must be held to have misdirected themselves in law in holding that the period of limitation therefor could be 30 years.
17. From a perusal of Section 48 of Chotanagpur Tenancy Act, there cannot be any doubt that in respect of an application for restoration of the land falling within the purview of the said provision, the period of limitation would be 12 years.
18. Mr. Bhowmik submitted that the respondent No. 4 had no jurisdiction to entertain the said application after the expiry of the period of the limitation, which is 12 years.
19. According to the learned Counsel, therefore, the finding of the respondent Nos. 2, 3 and 5 to the effect that the period of limitations would be 30 years is wholly incorrect.
20. Mr. P. K. Banerjee, learned Counsel appearing on behalf of the respondent Nos 6 to 14 series, on the orther hand, drew my attention to the fact that the application was originally filed under the provision of Section 71 (A) of the Chotanagpur Tenancy Act.
21. The learned Counsel further drew my attention to the Bihar Scheduled Areas (Amendment) Regulation Act, 1983 (Bihar Regulation No. 1 of 1983) which came into force w. e. f. 10th September, 1983 for the purpose of showing that an explanation was added to Section 71 (A) of the Chotanagpur Tenancy Act in the following manner:
A Bhuihar or a Mundari Khunt Kattidar who is deemed to be a settled raiyat under the provisions of Section 18 of this Act shall also be deemed to be a raiyat for the purposes of this section.
22. The learned Counsel further drew my attention to the fact that by another amendment carried out in the year 1986 by reason of Bihar Scheduled Arears (Amendment) Regulation, 1985 (Bihr Regulation No. 1 of 1986); after the words 'Raiyats' "Mundari Khuntkattidars or Bhuinhars" were also inserted in Section 71(A) of the Chotanagpur Tenancy Act.
23. The learned Counsel, submitted that the said amendments have retrospective effect and retrospective operation.
Strong reliance in this connection was placed by Mr. Banerjee in Mithilesh Kumari v. Prem Binari Khare .
24. The learned Counsel further submitted that although after remind of the case by the Additional Collector, Ranchi in terms of his order dated 18-7-1988, the respondent No. 5 registered the case as Bhumidari Case No. 10 of 1978, the said application for restoration should have been treated to be one under Section 71(A) of the Chotanagpur Tenancy Act.
25. According to the learned Counsel, therefore, irrespective of the fact as to whether the concerned respondents were Bhumidars or Raiyats, the period of limitation for filing such restoration application would be 30 years as they are members of the Scheduled Tribe.
26. Mr. Bhowmik, in reply, submitted that the subsequent amendment in the Bihar Scheduled Areas Regulation, 1969 will be prospective in nature and thus, the period of limitation in relation to the case at hand will be 12 years inasmuch the proceeding was initiated in the year 1970.
According to the learned Counsel, a deeming provision has to be limited to the extent of its object.
Reliance in this connection has been placed in S. S. Gadgil v. Lal & Co. .
27. Bihar Scheduled Areas Regulations, 1969 (Bihar Regulation No. 1 of 1969) was framed to make certain provisions and to amend certain laws in their application to the scheduled areas in the State of Bihar for the peace and good Government of the area.
28. Regulation 4 of the said regulations provides that the enactments mentioned in the Schedule appended thereto shall stand amended in the manner and to the extent mentioned therein in their application to the Scheduled areas of the State of Bihar,
29. By reason of Clause 2 of the said Schedule, Article 65 of the Limitation Act was amended so as to insert the following at the end thereof but 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule the Constitution (Scheduled Tribes) Order, 1950.
30. As indicated hereinbefore, by reason of the said regulations, the provisions of different acts have either been amended or new provisions have been inserted. Each and every provision of the schedule, therefore, has got to be given effect to without reference to the other provisions.
31. The provisions of the said regulation are beneficient legislation so far as the members of the Scheduled Tribes are concerned. It is now we known that beneficient legislative should be liberally construed with a view to implement the legislature intent but where such beneficient legislation has scheme of its own there is no warrant for the court to travel beyond the schem and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the Scheme.
See Regional Director, E.S.I.C., Trichur v. Ramanuja Match Industries .
32. Periods of limitation for different types of applications under Chotanagpur Tenancy Act have been laid down in the said Act itself e.g. an application for restoration under Section 46(4-A), Sections 48 and 49(5) of the said Act provide for a period of limitation of 12 years for filing application thereunder.
33. Different periods of limitation have been prescribed for other types of applications, suits, appeals etc. Section 230 of the Chotanagpur Tenancy Act provides that the provisions of the Indian Limitation Act, shall, in so far as they are not inconsistent with the said Act, apply to all suits, appeals and applications under the said Act.
34. Sub-section (2) of Section 29 of the Limitation Act reads as follows :
Where any special or local law prescribes for any suit, appeal or application a period of limitation preferred 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 the 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 insofar as, and to the extent to which, they are not excluded executed by such special or legal law.
35. The provisions of Section 230 of the Chotanagpur Tenancy Act and Section 29(2) of the Limitation Act, 1963 are absolutely clear. When a period of limitation has been prescribed under the provisions of Chotanagpur Tenancy Act, the same shall prevail over the general statute meaning thereby the Limitation Act, 1963.
Section 230 of the Chotanagpur Tenancy Act is a residuary provision. Thereis, thus, in my opinion, no conflict with regard to the period of limitation provided for under the different provisions of the Chotanagpur Tenancy Act vis-a-vis Limitation Act, 1963.
36. By reason of the provisions contained in Section 71(A) of the Chotanagpur Tenancy Act a new right was conferred upon the raiyats belonging to the members of Scheduled Tribes In terms of Bihar Scheduled Areas (Amendment) Regulation, 1983 merely an explanation was added which was explanatory or clarificatory in nature that those 'Bhumidars,' who would be deemed to be 'Settled Raiyats' within the meaning of Section 18 of the Chotaaagpur Tenancy Act, shall also be 'raiyats' for the purpose of the Section 71(A) of the Chotanagpur Tenancy Act.
This amendment being clarificatory in nature will have retrospective effect and retroactive operation.
37. However, in terms of Bihar Scheduled Areas (Amendment) Regulation, 1985 (Bihar Regulation No. 1 of 1986) even those Bhumidar who were tenure holders were sought to be brought within the purview of Section 7l(A) of the Chotanagpur Tenancy Act. Thus, in terms of the said provisions, a new right has been conferred upon the Bhumidars, who were tenure holders.
38. Thus, by reason of the. said amendment not only a new right is created in favour of the Bhumidars who prior to the coming into force of the said amendment were not entitled to the benefit conferred thereby but also the rights of the transferees from such tenure holders are also sought to be taken away inasmuch thereby a new period of limitation has been provided for.
There is nothing in the said amendment to suggest that it was meant to be given a retrospective effect. 1986 Amendment in the Bihar Scheduled Areas Regulations, therefore, in my opinion, will, have prospective operation.
39. The Supreme Court of India in Mithilesh Kumari v. Prem Behari Khare , was dealing with a disqualifying statute, in view of the nature of the provisions of Benami Transaction (Prohibition) Act, 1988, it was held that the same would apply to the pending suits and appeals also.
40. By reason of the Bihar Scheduled Areas (Amendment) Regulation, 1985 (Bihar Regulation No. 1 of 1986), however, defences which can be raised in a proceeding under Section 7/A, are not nullified but thereby and thereunder new rights and obligations have been created.
41. In MithilEsh Kumari's case (supra), the Supreme Court observed :
We read in Maxwell that it is a fundamental rule of English law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly at the time of the Act, or arises by necessary and distinct implication. A retrospective operation is, therefore, not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively would prejudically affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transactions or consideration already passed.
42. It may be mentioned that a Division Bench of this Court in Harak Sao v. Dukhan Pahan 1977 BBCJ 479, held that Section 71(A) of the Chotanagpuu Tenancy Act would have no application in a case of transfer of Bakast Bhumidari Pahani lands and in respect therof the provisions of Section 48 are applicable.
43. The amendment in the Section 71(A) of the Chotanagpur Tenancy Act has been carried out in the year 1986 with a view to remove the 'mischief existing at that time in view of the decision of this Court in Harak Sao's case (supra).
44. In that view of the matter only upon coming into force of the Amending Regulations, 1986, the application for restoration filed by the respondent Nos. 6 to 14 series could have been treated to be one under Section 7l(A) of the Chotanagpur Tenancy Act and not prior thereto.
45. The question which now arises for consideration is as to whether any period of limitation is provided for under Section 71(A) of the Chotanagpur Tenancy Act.
According to Mr. Banerjee, no period of limitation has been provided for the purpose of entertaining an application under Section 71(A) of the Chotanagpur Tenancy Act and thus, the same can be filed at any point of time.
46. The submission of Mr. Banerjee is not entirely correct.
47. Although the provisions of statute providing for a period of limitation are procedural in nature but so far as the immovable properties are concerned, in view of Section 27 of the Limitation Act, 1963, it deals with the substantive rights of the parties also.
48. Section 27 of the Limitation Act reads as follows :
27. Extinguishment of right to property.--At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
49. It is now well-known that where a person comes in possession of any land by reason of an illegal transfer, he begins to possess adversely as against the transferee to the extent of his transferor's interest.
See Kalawatibai v. Soiryabai and Ors. 1991 SCC Vol. 3 page 410.
50. Once a person, thus, acquires title by reason of his being in adverse possession of such lands in terms of Article 65 of the Limitation Act as amended by the Schedule appended to the Bihar Scheduled Area Regulation, 1969 he acquires a vested right and consequently the right of the original owner of the land in view of Section 27 of the Limitation Act becomes extinct. When a person acquires title to the property also by adverse possession, he acquires a right in the said property within the meaning of Article 300(A) of the Constitution of India.
51. In Yeshwantrao v. Baburao , the Supreme Court was considering the effect of Section 52(A) Bombay Public Trust Act which is as follows :
Notwithstanding anything contained in the Indian Limitation Act, 1908, no suit against an assignee for valuable consideration of any immovable property of the Public Trust which has been registered or is deemed to have been registered under this Act for the purpose of following in his hands, such property or the proceeds thereof, or the an account of such property or proceeds, shall be barred by any length of time.
It was held :
It is a well-established proposition of law that the law of limitation fixing a period of limitation for the limitation of any suit or proceeding is procedural law not a substantive one. Section 52-A had, by no stretch of imagination, the effect of reviving an extinguished and lost claim and giving life to a dead horse. If the claim was not barred and the right to the property was not extinguished when Section 52-A came into force, then a suit instituted thereafter could not be defeated under any of the Articles of the Limitation Act of 1908 or even of the new Limitation Act of 1963. In express terms it overrides the provisions in Section 28 of the Limitation Act, 1908. But then the overriding effect of Section 52-A will have its play and operation, only if, by the time it came into force, Section 28 bad not extinguished the right to the property in question. Otherwise not.
52. The Supreme Court in the aforementioned case affirmed the decision of this Court in Biseshwar Dass v. Sashinath Jha AIR 1943 Patna 289.
53. In Sri Manchegowda v. State of Karnataka , the Supreme Court was considering the provisions of Karnataka Scheduled Caste and Scheduled Tribe (Prohibition) Act, 1979.
54. The Supreme Court while upholding the constitutionality of the provisions of the said Act clarified that the provisions thereof would be attracted only in the cases where at the date or commencement of the said Act the title of the transferee was voidable but not in a case where it has been perfected before the commencement thereof.
55. The Supreme Court observed :
Since at the date of the commencement of the Act the title of such tranferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferee could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of commencement of the Act and had not lost its defeasible charcter at the date when the Act came into force. Transferees of granted lands having a prefected and a voidable title at the commencement of the Act must be held to be outside the place of the provision of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable in the date of the commencement of the Act.
56. In this case a concurrent finding of fact has been arrived at that the petitioners came in possession on the lands in question in the year 1947. At the relevant point of time both by reason of the provisions of the Limitation Act, 1898 (Articles 142 and 144 corresponding to Articles 64 and 65 of the Limitation Act, 1963) as also in terms of Sub-section (4) of Section 48 of the said Act, the period of limitation was 12 years.
57. Thus, in the year 1986 when the Bihar Scheduled Areas Regulation was amended so as to bring within its purview Bhumidars and Mundari Khuntkattidars', the petitioner already had acquired indefeasible title by adverse possession.
58. There cannot be any doubt that the extended period of limitation as provided for under Clause 2 of the Schedule appended to the said regulation shall be applicable in a case where the immovable property belonging to the members of Scheduled Tribe falls within the scheduled areas and thus only in such cases, the period of limitation in relation to the words 'adverse possession' as contained in Article 65 of the limitation Act, 1963, would be 30 years.
59. Thus, period of 12 years' of limitation shall continue to be operative in areas other than the scheduled areast.
60. As seen earlier by reason of Clause 2 of the Schedule appended to the Bihar Scheduled Areas Regulation, 1969 the provisions of the Limitation Act was amended.
The said provision, therefore, prescribed its own limitation which would be applicable in cases falling within the Scheduled areas.
61. Sub-section (4) of the Section 48 of the Act is a general law and has application both in respect of the scheduled areas and non-scheduled areas. By reason of the provisions of the Bihar Scheduled Areas Regulation, 1969, however, a special period of limitation has been prescribed which would be applicable to the scheduled areas.
62. The limitation Act is a procepural law. Thus, no person has a vested right to have a particular remedy for enforcement of the right. Equally no person has any vested right in a particular forum.
See New India Insurance Co. Ltd. v. Smt. Santi Mishra .
63. In view of the aforementioned provisions, therefore, a person who remained in possession for a period of more than the period prescribed under the Limitation Act acquires an indeafisible title and the right of the other person in extinguished.
64. The provisions of Section 48(4) vis-a-vis Clause 3 of the schedule appended to Bihar Scheduled Areas Regulation, 1969 has to be construed on the touch stone of the Section 27 of the Limitation Act.
65. In Barraclough v. Brown 1897 SC 615 at 622, Lord Waston held :
The right and remedy are given uno flato, and one cannot dissociate from the other. By these words the Legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the under-taker, but to determined by whom the amount is payable and has therefore, by plain implication enacted that no other Court has any authority to entertain org decide these matters.
Craies on "Statute law", 7th Edition at page 366 states that "the latest will of the Parliament should always prevail".
Their Lordships of the Supreme Court, speaking through Sarkaria, J. in Commissioner of Sales Tax, U. P. v. Parson Tools and Plants, Kanpur , held that--
The will of Legislature is the supreme law of the land and demands perfect obedience. Where the Legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver, more so if the statute is a taxing statute.
66. This aspect of the matter has already been considered by a Bench of this Court namely in Bhupati Mishra v. Commr., Chotanagpur Div., Ranchi and Ors. 1982 BLT 3 being CWJC No. 26 1975 (R) disposed of on 13-7-1976, wherein it has been held that the expression "title by adverse possession" must mean title by adverse possession as contemplated under the amended Article 65 of the Limitation Act, which at present, so far as the matters of the Scheduled Tribes' are concerned, is 30 years.
67. This aspect of the matter again came up for consideration before a Full Bench of this Court in Amendra Nath Dutta v. State of Bihar , wherein it has been held that even in relation to the sub sequent enlargement of the scheduled areas, the period of limitation of 30 years shall apply.
Reference in this connection may also be made to Mitku Koiri v. State of Bihar CWJC No. 645 of 1979 (R) disposed of on 8-5-1985. The said decision is contained in CNT cases page 21 of Manual of Chotanagpur Tenancy Laws Vol. 1 (1991 Edition) by Pandey R.N. Roy.
68. It, therefore, cannot be said that there is no period of limitation for filing an application under Section 71(A) of the Chotanagpur Tenancy Act. Although no period of limitation has been prescribed the provisions of Article 65 of the (Limitation Act wili apply in such a case, in view of Section 230 of the Chotanagpur Tenancy Act and thus the period of limitation will be 30 years. However, there cannot be any doubt that in all such cases the opposite-party must prove the ingredients of adverse possession.
69. However, in view of the third Proviso appended to Section 71(A) of the Chotanagpur Tenancy Act it must be held that for a limited purpose, an application under the said provision can be entertained even after expirty of the said period.
70. I, however, must make it clear that while laying down the afore mentioned law, I have not considered the question as to whether the said third proviso is unconstitutional or not as the same was not convassed before me. It is well-known that constitutionallity of a statute may be presumed.
71. For the reasons aforementioned, I am of the view that the application for restoration filed by the respondents No. 6 to 14 series could have been considered only for the purpose of third Proviso appended to Section 71(A) of the Chotanagpur Tenancy Act and for not other purposes.
72. In the result, this application is allowed. The impugned orders as contained in Annexures 1, 2 and 3 are hereby quashed and the matter its remitted to respondent No. 5 for a fresh decision in the light of the observations and directions made hereinbefore.
73. Let a writ of certiorari be issued accordingly. In the .facts and circumstances of the case, the parties shall bear their own costs.