Patna High Court
Ram Chandar Sahu vs The Commissioner And Ors. on 20 March, 1990
Equivalent citations: 1990(38)BLJR929
Bench: B.P. Singh, S.B. Sinha
JUDGMENT S. Roy, J.
1. Respondent No. 5 claiming himself to be an agnate of Bechan Oraon, recorded raiyat of khata No. 58 of village Banari Guoga Toli, P.S. Bishunpur, District Ranchi, now in the District of Guoila, filed an application onto Section 71.-A of the Chotanagpur Tenancy Act, 1908 (the 'Act') for restoration of land of that khata.
2. According to the appellate order, as contained in Annexure-2, Bachan Oraon went to tea garden in the year 1939 and the land came in possession of Lundii Orain, wife of the brother of Bachna Uraon. Bachna Uroan was not heard of and Lundri Drain continued in possession of the land. She died without any issue and (he appellant being the nearest agnate of Bechan Uraon came in possession of the property in question. The petitioner illegally dispossessed him in 1965.
3. the petitioner in his show cause, inter alia, stated that he took settlement of the. Lands in question front ex-landlord in 1952 and came in possession of the one. He was holding the land adversely to the interest of the recorded raiyat. It was also pleaded by him that Bechana Uraon had abandoned the holding because he bad no heir. The landlord resumed fit and came in possession of the same.
4. Respondent No. 4 by order, as detained in Annexure-1 dismissed the case. He held that an earlier case filed by Respondent No. 3 was dismissed. Be also held that respondent No. 3 did not appear in Court and did not rile any paper. Respondent No. 5 filed an appeal before respondent No. 3. Respondent No. 3 held that the ex-landlord entered upon the land in question and treated it abandoned without complying the mandatory provision of Section 73 of the Act. As the possession of the ex-landlord was illegal, the settlement of the land in question with the petitioner by Sada Hukumnarna dated 26-3-1952 was also illegal. Respondent No. 3 further held that as the petitioner was in average possession of the land in question for more than twelve years from the date of the filing of the application by respondent No. 5 and respondent No. 5 was entitled to restoration of the land if he was the heir of Bench, he was liable to pay compensation under the 3rd proviso of Section 71-A of the Act to the petitioner. He remanded the matter to respondent No. 1. The petitioner filed revision before respondent No. 1. Respondent No. 1 accepted the submission made on behalf of respondent No. 5 that the petitioner had failed to prove the case of abandonment. He further held that ciaos the compensation was payable only in a case where a parson remained in adverse possession from 30 years, there was no question of payment of compensation to the petitioner. He ordered for restoration of the land in favour of respondent No. 5. The petitioner in this case her challenged the validity of Annexures-2 and 3.
5. The case was listed for hearing before a learned Single Judge, It was argued before him whether in the facts of this case, application under Section 71-A of the was maintainable The learned Single Judge was of the opinion that the matter should be derided by a Larger Bench. The matter thereafter was placed before a Division Bench After noticing the submissions made on behalf of the counsel appearing on behalf of the parties, the Division Bench was of the opinion that it was necessary to decide whether the judgment in Jalpa Tudu and Ors. v. The Commissioner of Bhagalpur and Ors. 1981 BBCJ 296 was good law in view of the Full Bench judgment in Binarani Ghosh v. The Commissioner, South Chotanagpur Division and Ors. 1985 PLJR 732. The matter thereafter has been placed before this Bench.
6. From the judgment of Jnlpa Tudu add Ors. it appears that an application for restoration of land was filed under Section 20(5) of Santhal Parganas Tenancy Act, 1949. In that case Mandal Tudu as petitioner No. 4 before the High Court filed an application for restoration of his raiyati land alleging that Jalpa Tudu and Ors. (Petitioner before High Court) had forcibly dispossessed him. The Division Bench held that as it was not a case of transfer by Mandal Tudu, there was no question of contravention of Sub-section (1) or Sub-section (2) of Section 20 of that Act. It was held that the application for restoration was not maintainable under Section 20(5) of the Act. The provision in Section 71-A of the Act is similar to Section 20(5) of Santhal Parganas Tenancy Act, 1949. In Binarani Ghosh it was it was alleged by the recorded raiyat that the surrendsr was obtained by the ex-landlord without obtaining prior permission of the Deputy Commissioner as required under Section 72 of the Act. On the facts of that case it was held that surrender was a transfer within the meaning of Section 71-A of the Act. The point in six in issue in Jalpa Tudu was quite different from the point of in issue in Binaram. There is no conflict between the two judgments.
7. Section 71-A of the Chotanagpur Tenancy Act reads as follows:
If at any time it comes to notice of the Deputy Commissioner that transfer of land belonging to a raiyat who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provision of this Act or by any fraudulent method (including decrees obtained in suit by fraud and collusion) he may, after giving reasonable opportunity to the transferee who is pro-posed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation or restore it to the transferor or his heir or in case the transferer or his heir is not available or is not willing to agree to such restoratian, re-nettled it with another raiyat belonging to the scheduled tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has within the thirty years from the date of the transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner, shall, if the transferee 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 remedy:
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such building or portion thereof before coming into force of the Bihar Schedule Area Regulation, 1969, he may notwithstanding any other provisions of the Act, validate such a transfer where the transferee either makes available to the transferer an alternative holding or portion thereof, as the case may be of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner tot rehabilitation of the transferer:
Provided also that if after an enquiry the Deputy Commissioner is satisfied that transferee has acquired a title by adverse possession and that the transfered land should be restored or re-settled, he shall require the transferor or his heir or another raiyat as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred at the market value of the land, as the case may be, and the amount of any compensation for improvements effected to the land which the Deputy Commissioner deem fair and equitable.
8. From a bare perusal of the aforementioned provisions, it would be evident that the conditions precedent for invoking the jurisdiction of the Deputy Commissioner under the said Act is transfer of land belonging to a member of the Scheduled Tribe in contravention to the provisions of Act. or by any fraudulent method. On terms of Section 71-A the said Act, therefore, the Deputy Commissioner may direct for restoration of the land in question only in the event if it is held what transfer has taken place in violation of the provisions of the said Act or by any fraudulent method. When if a wider meaning is assigned to the word 'transfer1 forcibly dispossession of a raiyat by another person cannot by any stretch of imagination he held to be a transfer. Further, from a bare perusal of Section 71-A of the Act, it will be evident that trouser connotes an ac< on the part of the raiyat belonging to the member to Scheduled Tribe himself in favour of another person.
Therefore, an act of forcible dispossession, of a raiyat belonging to Scheduled Tribe by another person, in our opinion, being not a transfer in violation of the provisions of the said Act, the provisions of Section 71-A thereof cannot be said to have any application whatsoever. Reference, in this connection may be made to Jitu Oraon v. Commissioner, South Chotanagpur Division Ranchi 1987 BLT 177, and in Shiva Oraon v. Commissioner, South Chotanagpur Division Ranchi 1988 BLT 15. It is needless to point out that there are other decisions on this point.
9. We are, therefore, of the opinion that Jalpa Tudu's case has rightly been decided and the ratio of the said decision is not in conflict with the ratio of Binarani's case.
10. In the result, this application is allowed and the orders as contained in Annexure 2 and 3 are quashed.