Jharkhand High Court
Jagjiwan Singh vs State Of Bihar & Ors on 18 July, 2013
Equivalent citations: 2013 (4) AJR 561
Author: P.P. Bhatt
Bench: P.P. Bhatt
(In the matter of an application under Article 226 of the Constitution of India) C.W.J.C. No. 3106 of 1998(R) Jagjiwan Singh ...Petitioner Versus 1. The State of Bihar (Now Jharkhand) 2. The Commissioner, South Chotanagpur Division, Ranchi. 3. The Additional Collector, Lohardaga. 4. The Sub Divisional Officer-cum- Special Officer, Scheduled Areas Regulation, Lohardaga. 5. Sumitra Kherwarin ..Respondents --- For the Petitioners : M/s Amar Kr. Sinha, Md. Abdul Wahab, Kundan Kumar Ambastha, Advs. For the Respondent- State : M/s Ram Prakash Singh, J.C. to GPII --- Present: HON'BLE MR. JUSTICE P.P.BHATT. By Court: The petitioner, by way of filing the present writ petition under
Article 226 of the Constitution of India, has prayed for quashing and setting aside the order dated 22.4.1986 (Annexure-3 to this petition)passed by respondent No. 4 in S.A.R. Case No. 201 of 1979-80 by which, the land measuring an area of 1.07 acres out of plot No. 71 of Khata No. 29 situated at village- Hesway, P.S.- Senha, District- Lohardaga has been ordered to be restored in favour of the mother of the respondent No. 5 under the provisions contained in Section 71A of the Chotanagpur Tenancy Act. It is further prayed for quashing the order dated 27.9.96 passed by the Commissioner, South Chotanagpur Division, Ranchi in Lohardaga Revenue Revision No. 116 of 1989 allowing the revision filed by respondent No. 5 and setting aside the order of the Addl. Collector, Lohardaga passed in SAR Appeal No. 68 R 15/81-82 and confirming the order of the S.D.O. Lohardaga.
2. Heard the learned counsel for the petitioner as well as the learned counsel for the respondents and perused the order impugned as well as materials placed on record.
3. The facts giving rise to the present petition are as under;
That the land of Plot No. 71 of Khata No. 29 situated at Village Hesway, P.S. Senha, District- Lohardaga was recorded in the name of Mahabir Kherwar son of Labnu Kherwar in the Revisional Survey Record of Rights. It is the case of the petitioner that the recorded tenant namely Mahabir Kherwar being in urgent need of money surrendered the lands measuring an area of 1.67 decimals out of plot No. 71 of Khata No. 29 situated at Village Hesway, P.S. Senha, District- Lohardaga to the Ex- landlord on 18.5.1942 by virtue of a registered deed of surrender for a consideration of Rs. 80/- and the surrender was made prior to 1947 and therefore, there was no need for taking previous sanction of the Deputy Commissioner and as such surrender of the land to the Ex-landlord was just and proper. It is further case of the petitioner that the aforementioned land was settled in the year 1943 in the name of mother of the petitioner's namely Jugalmani Devi and so long the petitioner's mother was alive she remained in possession of the lands. The petitioner's mother went on making payment of rent to the Ex-landlord and after vesting of Jamindari return was filed in the name of the mother of the petitioner and she paid rent regularly to the State of Bihar and the petitioner's mother was recognized as a raiyat by the State of Bihar. After the death of petitioner's mother the petitioner inherited the aforesaid lands and came into possession of the same. Thereafter, Masomat Deo Kuwar Kherwarin mother of the respondent No. 5 filed SAR Case No. 201/1979-80 in the court of the SDO, Lohardaga against the petitioner claiming restoration of the lands measuring an area of 1.07 acres out of Plot No. 71 of Khata No. 29 situated at Village Hesway, P.S. Senha, District- Lohardaga. Thereafter, the petitioner appeared and filed show cause stating inter alia that the land was surrendered by the Khatiyani raiyat on 18.5.1942 by virtue of a registered deed of surrender and thereafter settlement was made in favour of the petitioner's mother in the year 1943 and she went on paying rent to the Ex-landlord and after vesting of estate return was filed in the name of the mother of the petitioner and she went on making payment of rent regularly to the State of Bihar. According to petitioner, he produced registered deed of surrender, rent receipts and other relevant documents. It is pertinent to note that during the pendency of the SAR Case the mother of the respondent No. 5 Deo Kuwar Kherwarin died and her legal heir was not substituted and brought on the record. Thereafter the matter was heard and the learned SDO by terms of the order dated 22.4.1986 passed the order for restoration of the land in favour of the mother of the respondent No. 5, who was not alive at the time of passing of the order.
4. Being aggrieved and dissatisfied with the said order, the petitioner preferred SAR Appeal being SAR Appeal No. 68R 15/1981-82 before the Additional Collector, Lohardaga impleading the respondent No. 5 the only legal heir of Masomat ost. Deo Kuwar and the said appeal was allowed by terms of the order dated 27.6.1987 and the order dated 22.4.1986 passed by the SDO, Lohardaga for restoration of the land was set aside. Thereafter, respondent No. 5, being aggrieved by the said order, filed Lohardaga Revision No. 116/89 before the Commissioner, South Chotanagpur Division, Ranchi which was allowed by terms of the order dated 27.9.1996 and the order passed by the Additional Collector was set aside and the order passed by the SDO for restoration of the land was confirmed.
5. The learned counsel for the petitioner submitted that the orders passed by respondent Nos. 2 and 4 are ab initio, illegal, void and without jurisdiction. It is further submitted that the proceeding under Section 71A CNT Act is hopelessly barred by limitation as the case was initiated much after the expiry of 30 years. It is further submitted that the land under proceeding was surrendered voluntarily by the recorded tenant in favour of the Ex-landlord on 18.5.1942 by virtue of registered deed of surrender i.e. much before the coming into force of CNT Amendment Act (Act XXV of 1947) and at that time permission was not required and as such, there is no contravention of either Section 46 or any other provisos of the CNT Act. It is further submitted that it is settled principle of law that elements of fraud are required to be pleaded and proved by cogent evidence and the respondent No. 5 has failed to prove the same by cogent evidence. It is further submitted that in view of the fact that the surrender of the land was made in the year 1942 and the petition for restoration of land was filed in the year 1979-80, the respondent Nos. 2 and 4 have no jurisdiction to pass order for restoration of the lands under proceeding and the same is against the mandate of law, and therefore, the orders passed by respondent Nos. 2 and 4 as contained in Annexures- 3 and 5 are liable to be quashed.
Learned counsel for the petitioner further submitted that the settlement made within a period of one month from the date of surrender does not necessarily mean that the surrender and the settlement would form part of the same transaction. The question as to whether a surrender and subsequent settlement would form part of the same transaction or not, would depend upon the facts and circumstances of each case and has got to be decided on the basis of materials on record. In this context, the learned counsel for the petitioner has referred to and relied upon the decision reported in 1987 BLT(Rep.) 303 (Bishram Sahu Vs. Bhairo Oraon and Ors.).
Learned counsel for the petitioner has also referred to and relied upon the decisions reported in (2004)4 JLJR 109 SC(Situ Sahu and Ors. Vs. State of Jharkhand and Ors.) and 2009(2) JCR 517 (Kameshwar Narayan Singh and Anr. Vs. State of Jharkhand and Ors.) on the point of limitation to show that for exercise of power under Section 71A of restoration of land held that the lapse of 30 years is certainly not a reasonable time for exercise of power and the same was declared to be barred by limitation. The learned counsel for the petitioner in support of his submission has also referred to and relied upon decision given in the case of Jhalku Ahir Vs. State of Bihar and Ors. reported in 1993) (1) BLJR 328, Jai Mangal Oraon Vs. Smt. Mira Nayak and Ors. with Jai Mangal Oraon Vs. Rita Sinha and Ors. reported in AIR 2000 SC 2276, Bibi Makho and Ors. Vs. State of Bihar and Ors reported in 2004(1) JCR 107 and Fulchand Munda Vs. State of Bihar & Ors. reported in 2008 (2) JCR 1 SC.
6. As against this, the learned counsel appearing for the respondent- State Government by referring counter affidavit filed on behalf of respondent Nos. 1 to 4 submitted that the matter relates to the registered deed of surrender. The petitioner himself admits that the surrender was made on payment of a consideration money of Rs. 80/- on 18.5.1942. It is further submitted that at the relevant period of 1942, there was no restriction for transfer of lands by way of sale between schedule tribe to schedule tribe, despite of this the procedure of surrender was adopted on payment of consideration money. It is also submitted that the registered deed of surrender was made just to transfer the lands in favour of the person belonging to non-tribal and, therefore, there is contravention of Section 46 CNT Act. It is further submitted that the deed of surrender is a fraudulent one. It is further submitted that the petitioner did not produce any cogent evidence of his possession over the land in dispute since the year 1943 despite several adjournments granted by the authorities. It is also submitted that the settlement made within one year from the date of surrender shall form part of same transaction and it amounts to transfer in contravention of Section 46 CNT Act and therefore, Section 71A CNT Act is attracted in the present case. It is also submitted that the petitioner was Opp. Party before the SAR Court in SAR Case No. 201/1979-80 but he did not produce any documentary evidence of death of the party though the onus to bring such fact was on him. It is further submitted that the petitioner has not adduce any evidence of his possession since the year 1943 and therefore, limitation of 30 years as fixed by this Hon'ble Court in 1992 judgment is not attracted at all. It is also submitted that the deed of surrender made on payment of consideration money for Rs. 80/- cannot be said voluntarily and the said surrender is in contravention of provision of Sections 72 and 46 of the CNT Act and therefore, Section 71(A) CNT Act is also attracted in the present case. It is also submitted that the enactment of Schedule Area Regulation 1969 is an special enactment and under this law onus to prove lies upon the person proposed to be evicted by filing show cause that he has not taken the lands in contravention of Section 46 or any other provisions or by fraudulent method. It is lastly submitted that the orders passed by respondent Nos. 2 and 4 are just and in accordance with the provision of law and therefore, the present writ petition may be dismissed.
7. Considering the rival submissions of the parties and from perusal of impugned orders as well as materials placed on record, it appears that the land in question was settled by virtue of the registered deed of surrender on 18.5.1942 meaning thereby, the said transaction was made prior to 1947 and therefore at the relevant point of time, there was no need for obtaining prior permission as per Section 46 of the CNT Act, which came into force on 5.1.1948. It also appears that the application for restoration was also filed by the mother of the respondent No. 5 after lapse of 37 years and therefore, as per settled proposition of law, the said application was hopelessly time barred as it emerge from the material on record. Now the above mentioned facts are required to be analyzed in view of the settled position of law as cited by the learned counsel for the petitioner, which appears to be relevant for the purpose of deciding the present case. Para 2 of the judgment reported in 1987 BLT(Rep.) 303 (Bishram Sahu Vs. Bhairo Oraon and Ors.) reads as under;
"2. In this case, the facts are short and not in dispute. On 14.2.1995 the father of respondent No. 1 surrendered the aforementioned lands in favour of landlords and thereafter, a fresh settlement was granted by the landlord in favour of petitioner. Respondent Nos. 3 and 4 while passing orders as contained in Annexures 2 and 3 to the writ petition held that the settlement having been made within a period of one month from the date of surrender, the surrender and settlement is part of same transaction and as such, the same being a transfer having been made in contravention of the provisions of Section 46 of the Chotanagpur Tenancy Act, respondent No. 1 was entitled to get lands restored in his favour in terms of the provisions of Section 71-A thereof. However, as this writ petition is being disposed of on a short question, I need not consider the question as to whether surrender made on 14.2.1945 and the subsequent settlement dated 10.3.1945 was a part of the same transaction or not. Suffice it to say that only because a settlement is made after one month or even after a few days of the surrender, it does not necessarily mean that the surrender and the settlement would form part of the same transaction. The question as to whether a surrender and subsequent settlement would form part of the same transaction or not, would depend upon the facts and circumstances of each case and has got to be decided on the basis of materials on record. However, in the instant case, it appears that respondent No. 4 refused to entertain the revision only on the ground that there were concurrent finding of fact by the courts below".
Paragraph 8 of the judgment reported in (1993) (1) BLJR 328 (Jhalku Ahir Vs. State of Bihar and Ors.) reads as under;
"8. It is now well settled that prior to coming into force of Chotanagpur Tenancy (Amendment ) Act, 1947, the recorded tenants were not required to obtain prior permission of the Deputy Commissioner before effecting surrender of their raiyati holdings. It is also not a case where respondent No. 5 has contended that the surrender made by the recorded tenants to the ex-landlord and the consequent settlement made by the ex-landlord in favour of grand father of the petitioner being part of the same transaction, the same contravenes provision of Section 46 of the Chotanagpur Tenancy Act."
Paragraph 15 of the judgment reported in AIR 2000 SC 2276 (Jai Mangal Oraon Vs. Smt. Mira Nayak and Ors. with Jai Mangal Oraon Vs. Rita Sinha and Ors.) reads as under;
"15. No doubt, the understanding of the High Court about the scope of Section 71-A as interpreted by the earlier decisions of that court noticed therein may not be good or correct in view of the later declaration of law by this court but, the High Court did not proceed to rest its conclusion to uphold the claims of the contesting respondents who were writ petitioners before the High Court, only on that ground. The High Court has considered, at length the further question as to whether Section 71-A, introduced in 1969, was attracted to this case of surrender effected by a registered deed, on 15.1.1942, in the light of the then existing statutory provisions contained in Sections 46 and 72 of the CNT Act. The nature of consideration and the other reasons assigned in support of the order made in CWJC No. 118 of 1986-R makes it clear that the statutory provisions as they stood in force on 15.1.1942 neither envisaged the obtaining of prior sanction of the Deputy Commissioner before a surrender by a tenant could be made of his interest in favour of the landlord nor could such surrender be held bad merely because it was not at the end of the Agricultural Year but immediately before. Those issues seem to have been considered and decided, even dehors the controversy raised with reference to the character of the land, proceeding on an assumption on the basis that it involved, a surrender of raiyati interest. We find nothing illegal or wrong in the said reasoning and the conclusions arrived at by the learned judges in the High Court appear to be well merited and quite in accordance with the statutory provisions of force, at the relevant point. Therefore, in our view, no interference is called for with the orders of the High Court, in this regard."
Paragraph 12 of the judgment reported in AIR 2004(1) JCR 107 (Bibi Makho and Ors. Vs. State of Bihar and Ors.) reads as under;
"12. In the present case, the surrender of the land by registered deed was made in the year 1935 whereas the provision for taking prior permission of the Deputy Commissioner was enacted by Amendment Act in the year 1947. The said amendment was prospective and not retrospective and, therefore, it cannot be said that any prior permission of the Deputy Commissioner was required to be taken for surrender of the land by any raiyat prior to 1947 i.e. before the Amendment Act came into force and, therefore, the finding of the learned Additional Collector and the Commissioner in their orders as contained in Annexures 4 and 5 are absolutely illegal. This point has also been settled by the Supreme Court in the case of Mai Mangal Oraon (Supra), wherein it has been held that provision of Sections 46 and 72 as amended and Section 71-A as inserted by the amendment Act, are not applicable in case of surrender, appointment made prior to 1947."
Paragraphs 13 and 14 of the judgment reported in 2004(4) JLJR 109(SC) (Situ Sahu and Ors. Vs. State of Jharkhand and Ors.) read as under;
"13. We will assume that the surrender of tenancy on 7.2.1938 and the settlement of the lands on the present appellant on 25.2.1938 were in quick succession and could be viewed as parts of the same transaction within the meaning of the term 'transfer' as contemplated by the Act. Nonetheless, it has not been established before us that the transfer was contrary to any other provisions of the Act."
"14. We shall now examine the last argument of Shri Narasimha that transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (Supra), the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special Officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (Supra), which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies."
Paragraph 5 of the judgment reported in 2008 (2) JCR 1 SC (Fulchand Munda Vs. State of Bihar & Ors.) reads as under;
"5. As per Section 46 of the CNT Act, 1908, as it stood in 1922, no transfer by a raiyat of his right in his holding or any portion thereof by mortgage or lease for any period expressed or implied would be effected which exceeds or might in any possible event exceed five years. It further restricted transfer by way of sale, gift or any other contract or agreement and such transfer shall not be valid to any extent. The suit of the appellant's predecessors for possession on the basis of oral mortgage was culminated into a decision by the High Court in second appeal (AFAD No. 1909/1948) where a clear-cut finding was recorded that there could not have been an oral usufructuary mortgage of immovable property for value of more than Rs. 100/- under Section 59 of the Transfer of Property Act, the same being bad in law. Thus, the predecessors of the respondents could not be treated to be in possession under the mortgage. Under the the CNT Act as it stood in the year 1922, the transfer could have been challenged as it contravenes Section 46 of the CNT Act, being a contract or agreement of transfer. That plea having not been taken by the appellant's predecessors, the appellant and his predecessors were not entitled to raise the question of transfer being invalid under Section 46 of the CNT Act as it stood in 1922 on the principle of constructive res judicata. Section 46 of the CNT Act, by virtue of its amendment with effect from 5.1.1948, restricts and prohibits transfer by a raiyat of his right in his holding or any portion thereof by mortgage or lease for any period expressed or implied, which exceeds or might in any possible event exceed five years. It further restricts transfer by a raiyat of his right in his holding or any portion thereof, apart from mortgage etc., by way of sale, gift or any other contract or agreement and if such transfer is effected it shall be invalid. Section 71-A of the CNT Act authorizes the Deputy Commissioner to evict the transferee from such land and to restore possession to the raiyat if the transfer is being effected in contravention of Section 46 or any other provision of the CNT Act. Thus, if there is contravention of Section 46, the Deputy Commissioner is authorized to evict the transferee from such land and restore it to the transferor under Section 71-A of the CNT Act. The predecessors of the respondents could not be treated to be in possession in contravention of Section 46 as possession of land by them has been upheld by the High Court in its decision. The decision of the High Court can not be reopened by taking advantage of amendment in Section 46 which came into force with effect from 5.1.1948. Section 71-A of the CNT Act would be attracted only in case the Deputy Commissioner finds that the impugned transfer was made in contravention of Section 46 or any other provision of the CNT Act. The decision of the High Court comes in the way of the Deputy Commissioner in arriving at any such findings. The possession having been denied to the appellant's predecessors holding that there was no contravention of Section 46 as it stood in 1922, the appellant cannot be permitted to take advantage under Section 46 on same having been amended by an Act of 1947. That apart, although there is no period of limitation prescribed for exercising the power under Section 71-A by the Deputy Commissioner, the party affected is called upon to approach the appropriate authority or the power has to be exercised by the Deputy Commissioner within a reasonable period of time. The gap of more than 50 years for challenging the transaction of 1922 cannot be said to be a reasonable time for exercising the power even if it is not hedged in by a period of limitation."
Paragraphs 6 and 7 of the judgment reported in 2009(2) JCR 517 (Kameshwar Narayay Singh and Anr. Vs. State of Jharkhand and Ors. ) reads as under;
"6. The Hon'ble Supreme Court in 2004(4) JCR 211(SC) :
2004(4) JLJR (SC) 109 (Situ Sahu Vs. State of Jharkhand) while considering Article 65 of the Limitation Act, 1963 for exercise of power under Section 71A for restoration held that lapse of 40 years is certainly not a reasonable time for exercise of power even if it is not hedge in by a period of limitation and the same was declared to be barred by limitation. In the aforesaid background the Hon'ble Supreme Court held that the special Officer ought not have exercised his power under Section 71A of the Act after such a unreasonable period of time. It is further relevant to refer the judgment reported in 2000(5) SCC 141 (Jai Mangal Oraon Vs. Mira Nayak) wherein both the issues of time limit and the necessity of obtaining the previous sanction of the Deputy Commissioner for effecting surrenders was considered and the Hon'ble Supreme Court held that the CNT (Amendment) Act, 1947 amended sections 46 and 72 and made it prospective with effect from 5.1.48 and it was specifically held that under Section 46(4-A) the mandatory requirement of prior sanction of the Deputy Commissioner before effecting transfer was introduced only by the amendment Act, 1947, with effect from 5.1.1948 and no such provision existed prior to that date and thus it cannot apply retrospectively. In this judgment it was also considered that merely because Section 71-A commences with the words, if at any time, it cannot be taken to mean that the power can be exercised at any time without any point of time limit.
7. In the instant case, the settlement took place by virtue of customary hukumnama in the year 1941 itself and the application for restoration was filed in the year 1995 I.e. after lapse of almost 54 years which cannot be termed as reasonable and thus it was even otherwise barred by the limitation. The Revisional Authority has committed serious legal error by holding that in absence of the permission of the Dy. Commissioner, the transfer of the raiyati land in question of the Zamindar was illegal. The amendment came into effect only on 5.1.48 which made it mandatory to seek permission of the Dy. Commissioner whereas the transfer in the instant case the ex landlord made raiyati settlement in the year 1941 itself and at that time there was no requirement for seeking prior permission of the Deputy Commissioner."
8. In view of the facts and circumstances of the present case and also in view of the proposition of law discussed above it becomes very clear that only because a settlement is made within one year of surrender, it does not necessarily mean that the surrender and the settlement would form part of the same transaction. The question as to whether a surrender and subsequent settlement would form part of the same transaction or not, would depend upon the facts and circumstances of each case and has got to be decided on the basis of the materials on record. In the instant case, it appears that the land was settled on 18.5.1942 by virtue of registered deed of surrender and thereafter, the settlement was made in favour of the petitioner's mother in the year 1943 and she went of paying rent to the Ex-
landlord. It further appears that the return was filed after vesting of Estate and return was filed in the name of the mother of the petitioner and she went of making payment of land regularly to the State of Bihar. It further appears that the petitioner produced registered deed of surrender, rent receipt and other relevant documents before the authorities concerned. In the instant case, it appears that the proceedings under Section 71A CNT Act is hopelessly barred by limitation as the same was initiated after the expiry of 30 years. It also appears that the lands under proceeding was surrendered voluntarily by recorded tenant in favour of the Ex-landlord on 18.5.1942 by virtue of registered deed of surrender i.e. much before coming into force of CNT Amendment Act (Act XXV of 1947) and at that time permission was not required and as such, there is no contravention of either Section 46 or any other provisions of the CNT Act. Moreover, as per the settled principle of law, elements of fraud are required to be pleaded and proved by cogent evidence but in the instant case, the respondent No. 5 has failed to prove the same by cogent evidence. In the present case the surrender of the land was made in the year 1942 and the petition for restoration of land was filed in the year 1979-80 and, therefore, respondent Nos. 2 and 4 have no jurisdiction to pass the order of restoration of lands as the same is contrary to the position of law discussed above. Therefore, this court is of the view that the impugned orders dated 22.4.1986 and 27.9.1996 passed by the learned SDO, Lohardaga and the Commissioner, South Chotanagpur Division, Ranchi, respectively are not in consonance with the provision of law and the same are required to be quashed and set aside.
9. Accordingly, orders dated 22.4.1986 (Annexure-3) and 27.9.1996 (Annexure-5) are ordered to be quashed and set aside. This writ petition stands allowed, accordingly.
(P.P. Bhatt, J.) Jharkhand High Court, Ranchi Dated: 18th July, 2013 Anu/ NAFR.