Jharkhand High Court
Waxpol Industries Ltd. vs State Of Bihar And Ors. on 23 August, 2002
Author: Lakshman Uraon
Bench: S.J. Mukhopadhaya, Lakshman Uraon
JUDGMENT Lakshman Uraon, J.
1. The petitioner-appellant, The Waxpol Industries Limited, a Company incorporated under the Companies Act, 1956, having its registered office at No. 9. Mittar House, 71, Ganesh Chandra Avenue, Calcutta and its Branch Office at 68. Kanke Road, Dist. Ranchi, has preferred this appeal being aggrieved by the order dated 28.8.2000, passed in CWJC No. 2676/2000(R) by the learned Single Judge, submitting therein that a piece of land of Plot No. 95, Khata No. 64 of village Haratu, P.S. Namkum, Dist. Ranchi, measuring 3.78 acres was owned and occupied by the petitioner-appellant. The total area occupied by him comes to 10.49 acres where the appellant-petitioner is running a factory for manufacturing various products since 1960 after obtaining requisite permission from the Chief Inspector of Factories, Government of Bihar and other concerned authorities. The petitioner-appellant has stated that the land in question is recorded in the Revisional Record of rights under Sikmi Khata No. 12 in the name of Gopal Kumhar, son of Nathu Kumhar, as "Naukrana" land. After the death of Gopal Kumhar his two sons, Gandura Mahto and Chedia Mahto, inherited and possessed the said land. The petitioner-appellant has claimed that by custom and usage in the area Sikmi rights were and are heritable. The said Gopal Kumhar and his successor-in-interest became the settled raiyats with respect to the said plots. They sold the land to Parmanand Garg and Purnanand Garg by a registered Sale-Deed dated 11.4.61. Subsequently one Pandit Murulidhar Sharma claimed right, title and interest over the said plot of land. He claimed that he has purchased the said Plot No. 95 from the raiyats of Khata No. 64 several years back and he perfected his title through adverse possession. His title was confirmed by the Special Sub-Ordinate Judge, Ranchi in a decree dated 2.5.61 in Title Suit No. 43/61. The said P. Gargs purchased the said plot by registered Sale-deed dated 13.5.61 and subsequently sold 3 acres 28 decimals of land to Metal Packs Pvt. Limited by a sale-deed dated 30.9.61. The said company. Metal Packs. Pvt. Ltd., purchased the said land for establishment of factory. The appellant by separate sale-deed dated 30.9.61 purchased 50 decimals of land and amalgamated into his land. Subsequently in 1962 Metal Packs Pvt. Ltd. was amalgamated with the appellant and all the assets, liabilities, movable and immovable properties vested with the appellant and such amalgamation was confirmed by the Hon'ble High Court at Calcutta by an order dated 6.9.62 in Company Petition No. 156/1962. The said lands of Plot No. 95 are non-agricultural land and the petitioner-appellant is running factory since 1961-62, i.e., long prior to coming into force of Section 71A of the Chotanagpur Tenancy Act, 1908, vide Regulation 1/1969. The land ceased to be raiyati land since then. While the appellant- petitioner was in possession of the land, the State of Bihar issued notification under Land Acquisition Act and certain land was acquired for M/s. Damodar Valley Refractories including the land. In this present appeal the award was also prepared and this petitioner-appellant was shown to be entitled to a sum of Rs. 33,959,50. However, the appellant-petitioner got the land deleted from the said land acquisition proceeding as such it can not be said that the appellant got the land by virtue of any illegal transfer as alleged by respondent No. 3. Ram Charan Pahan, son of recorded raiyat, Late Lattu Pahan.
2. The learned counsel for the petitioner-appellant has submitted that the land was not a raiyati land. In 1962 the land was non-agricultural and the said land was acquired in a land acquisition proceeding by the State. However, the said plot was deleted from the proceeding as the petitioner-appellant had already purchased the said land from the Sikmidar in the year 1961. Thus he acquired indefeasible right, title and interest.
3. The learned Special Officer (SAR), Ranchi, in SAR Case No. 152/87 ordered for restoration of the land in favour of respondent No. 3. The appeal was preferred before the respondent No. 4, Deputy Com missioner, Ranchi-cum-Appellate Authority. Ranchi in SAR Appeal No. 8R 15/95-96. The same was also dismissed by an order dated 20.11.9.6. Against that order the petitioner-appellant preferred a revision before the respondent No. 2, Commissioner of Chotanagpur Division, Ranchi in Ranchi SAR Revision No. 590/96. However, the said revision was also dismissed. Then the petitioner-appellant filed CWJC No. 2676/ 2000(R) before this Court. The said writ petition was also dismissed by the learned Single Judge by order dated 28.8.2000.
4. The learned counsel appearing on behalf of the respondent No. 3 has submitted that the petitioner-appellant has not proved the usage and custom prevalent in the area that a Sikmidar raiyat or a raiyat or under raiyat is heritable and transferable. Section 71-A is specific which provides that:
"If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat (or a Mundari Khunt-Kattidar or a Bhuinhari) who is a member of the Scheduled Tribes has taken place in contravention of Section 46 (or Section 48 or Section 240) or any other provisions 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 transfer, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or in case the transferor of his heir is not available or is not willing to agree to such restoration, resettle it with another raiyat belonging to Scheduled Tribes according to the Village custom for the disposal of an abandoned holding :
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on 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 coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate to the transferor where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor :
Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or resettled, he shall require the transferor or his heir or another raiyat, as the case may be, to deposit with 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 or 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 may deem fair and equitable."
5. In this present case in absence of any evidence regarding heritable right of Sikmidar, which has not been proved and the plea regarding the custom has not established, hence Sikmidar even if remains in possession for more than 12 years, can not acquire a heritable right by adverse possession. The appellant petitioner purchased the land in question in the year 1961 on 29.9.61 from Parmanand Garg and Purnanand Garg who claimed to have purchased the land from the recorded Sikmidar of Sikmi Khata No. 12, namely, Gandura Mahto and Chedia Mahto. Sikmidar had no right to transfer the land without obtaining permission of the Deputy Commissioner as provided under Section 46 of the C.N.T. Act. There was also a collusive title suit only to say that in title suit the Deputy Commissioner was not made a party and without the knowledge of the recorded raiyats who are the members of the Scheduled Tribes and Pahans their lands were transferred by registered deed. The compensation was also paid to Sikmidar and the petitioner-appellant but it was not known to the original recorded raiyats as to whether their lands were acquired in any land acquisition proceeding by the State of Bihar or any compensation was paid to any one as they were not paid any amount of compensation.
6. In this case I find that how a tribal land was firstly transferred from one hand to Sikmidar then Sikmidar transferred to Parmanand Garg and Purnanand Garg in the year 1961 and again one Pandit Murulidhar Sharma claimed his title on the ground that he had purchased the said plot No. 95 from the raiyats of Khata No. 64 several years back and claimed to have perfected his title by adverse possession. Thereafter Parmanand Garg who owned and possessed the land, sold 3 acres 28 decimals of land to Metal Packs Pvt. Ltd. by registered sale-deed dated 30.9.61. Thus, I find that within a year how the title and possession has been transferred and possessed only to defraud the original recorded tribal raiyats.
7. It is now clear that the proceeding under Section 71-A of the C.N.T. Act was initiated on the report of the C.O., Namkum, the then Special Officer, by order dated 20.7.76, ordered for restoration for the land in question. Also in appeal and revision the said order remained affirmed by dismissing the appeal and revision of this petitioner-appellant. The land in question is recorded in the name of Sahdeo Pahan and Lattu Pahan. The respondent No. 3, Ram Charan Pahan, is the son of recorded tenant Lattu Pahan. One Gopal Kumhar was recorded as Sikmidar. The petitioner-appellant claimed that he purchased the land by registered sale-deed from the son of Sikmidar by registered sale- deed dated 3.5.61. The plea that the recorded tenant has lost the right over the land in question, was not sustained as the Sikmidar had no right to transfer a tribal land without obtaining permission to the Deputy Commissioner as provided under Section 46 of the C.N.T. Act.
8. In this present case, original recorded raiyats were never made any party in any proceeding either in land acquisition or in any proceeding under Section 46 of the C.N.T. Act. Without taking resort to Section 46 of the C.N.T. Act, any transfer of the tribal land is absolutely illegal and invalid as the right of a Sikmidar as a general law is neither heritable nor transferable. In view of this fact the appellant-did not come in possession of the land in question validly by registered deed of transfer as claimed by him.
9. The learned Single Judge while dismissing the CWJC No. 2676/2000(R) has quoted a case of Pandey Oraon v. Ram Chander Sahu and Ors., reported in AIR 1992 SC 195, as the Supreme Court observed:
"In Section 71A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and has a physical fact the member of the scheduled tribe who is entitled to hold possession and a non-member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71A of the Act.
The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by the scope. In fact, that exactly is what has been said by a three-Judge Bench of this Court in almost a similar situation in Manchegowda v. State of Karnataka, reported in 1984(3) SCR 502 : AIR 1984 SC 1151 and what was said by a three Judge Bench followed by a later decision of this Court in Lingappa Pochanna Appelwar v. State of Maharashtra, reported in 1984(2) SCR 224 : AIR 1985 SC 389. To the same effect is the observation of this Court in Kamini Krishnayya v. Guraza Seshachalam, AIR 1965 SC 639. The House of Lords in D (a minor) v. Bcrsshire Country Council, (1987) 1 All ER 20 (HL) said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts an circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71A of the Chhotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P. Act and holding that Section 71A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We accordingly allow the appeal and reverse the decision of the High Court."
10. In view of my above considered facts that there is concurrent finding of facts of all the S.R. Revenue Courts, appeals and revision that the transfer of the tribal land was illegal as Section 46 of the C.N.T. Act was not followed, the learned Single Judge has dismissed the writ application of the petitioner-appellant. I do not find any reason to differ with the finding of the learned Single Judge.
11. In view of these observed facts this appeal is dismissed and the order passed by the learned Single Judge in CWJC No. 2676/2000(R) dated 28.8.2000 is hereby affirmed. However, in the facts and circumstances of this case there shall be no order of cost.
S.J. Mukhopadhaya, J.
12. I agree.