Jharkhand High Court
Jai Mangal Oraon vs State Of Jharkhand & Ors. on 21 March, 2012
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
W.P.(C) No.1871 of 2004
Mutka Oraon ............ Petitioner
Versus
The State of Jharkhand & Ors. ............ Respondents.
with
W.P.(C) No.2195 of 2005
Seema Devi & Ors. ........ Petitioner
Versus
The State of Jharkhand & Ors. ............ Respondents.
..............
PRESENT
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
..............
For the Petitioners : Mr. V. Shivnath, Sr. Advocate
Mr. S. Tamboli, Advocate
Mr. Birendra Kumar, Advocate
Mr. Manoj Tamboli, Advocate
Mr. Niraj Kishore, Advocate
For the Respondent No.2: Mr. P. Gangopadhyay, Advocate
For the Respondent No.4: Mr. Indrajit Sinha, Advocate
(in W.P.(C) No.1871 of 2004)
For the petitioner ; Mr. P. Gangopadhyay, Advocate
For the Respondent No.8: Mr. Indrajit Sinha, Advocate
For the respondent No.9 : Mr. V. Shivnath, Sr. Advocate
Mr. S. Tamboli, Advocate
Mr. Birendra Kumar, Advocate
Mr. Manoj Tamboli, Advocate
Mr. Niraj Kishore, Advocate
(in W.P.(C) No.2195 of 2005)
For the State : Mr. Rajesh Kr. Mahtha, J.C. to S.C.(L & C)
(in both the cases).
.............
By Court: The above two writ petitions arose out of the order dated
15.7.2003/12.12.2003 passed by the Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No.24/1998.
2. In the said revision Jai Mangal Oraon was revisionist and Mosomat Marsa Orain and another were intervenors. Both of them were aggrieved by the order passed by the Additional Collector, Ranchi in S.A.R. Appeal No.18- R-15/1990-91 and the order passed by the Special Officer in S.A.R. Case No.88/1984-85 dismissing the application filed by Jai Mangal Oraon under Section 71A of the Chotanagpur Tenancy Act praying for restoration of land of Plot No.440, 441, 444 of Khata no.204 and Plot No.442 and 443 of Khata No.303. The prayer for restoration was made against respondent No.4/8.
3. As the two writ petitions have been filed against the same impugned order and the same question of law is involved based on same facts, both the writ petitions have been heard together and are being disposed of by this common judgment.
2FACTS
4. Jai Mangal Oraon - respondent No.2 in W.P.(C) No.1871 of 2004 and the petitioner in W.P.(C) No.2195 of 2005, filed a petition being S.A.R. Case No.88/1984-85 before the special Officer, S.A.R., Ranchi under Section 71A of the Chotanagpur Tenancy Act praying for restoration of the aforesaid lands on the ground that the said land was fraudulently transferred in favour of the non-tribals and that he is entitled to get restoration of possession thereof.
5. Notice was issued to the respondent No.4-Rabish Kumar Sinha and his vendor who were made opposite parties no.1 and 2.
6. The respondent No.4 appeared and filed his written statement disputing the claim made by Jai Mangal Oraon on various grounds. The said respondent also challenged the maintainability of the proceeding and the jurisdiction of the court. It was, inter alia, stated that the land, which were sought to be restored, were not raiyati land and there was no contravention of any provision of the Chotanagpur Tenancy Act in the transfer of the land and that the restoration has been sought after unreasonably long period of more than 37 years. The Special Officer allowed the said S.A.R. Case no.88/1984-85 on 21.11.1996 in favour of the said applicant Jai Mangal Oraon.
7. Against the said order, the respondent No.4 Rabish Kumar Sinha preferred appeal before the Additional Collector, Ranchi which was registered as S.A.R. Appeal No. 153 of 1986-87.
8. Learned appellate court allowed the appeal and remitted the case to the Special Officer for a fresh consideration and disposal of the same in accordance with law, also considering the claim of the transferee that the land in question is a "Chhapparbandi" land and there is no application of the provision of Section 71A of the Chotanagpur Tenancy Act.
9. On receipt of the record on remand the Special Officer, S.A.R. thoroughly considered the facts, materials and evidences on record and rejected the petition filed by Jai Mangal Oraon holding that the land in question is a "Chhapparbandi" land. The respondent No.4 is in continuous possession thereof and that there was no contravention of any provision of the Chotanagpur Tenancy Act and transfer in favour of respondent No.4 was not fraudulent.
310. Jai Mangal Oraon challenged the said order in appeal before the Additional Collector, Ranchi. The appeal was registered as S.A.R. Appeal No.18-R-15 of 1990-91.
11. The appellate court heard the parties, considered the facts, appraised the evidences and materials on record and dismissed the appeal
12. Against the said order of the Additional Collector, Jai Mangal Oraon preferred revision under Section 217 of the Chotanagpur Tenancy Act before the Commissioner, South Chotanagpur Division, Ranchi being S.A.R. Revision No. 24/1998. After some time one Mosomat Marsa Orain and Mutka Oraon claiming themselves as the real successor of the recorded tenant and owner of the land, filed application for their addition as party in the revision. According to said intervenors, the claim of Jai Mangal Oraon allegedly on the basis of his adoption by the recorded tenant Sukhi Oraon, is wholly frivolous and sham. Jai Mangal Oraon was never adopted as son by the recorded tenant. He is an impostor.
13. Learned Commissioner heard the parties including the intervenors and dismissed the revision filed by Jai Mangal Oraon. He also rejected the claim of the said Marsa Orain and others and upheld the order of the appellate court.
14. Learned Commissioner held that the claim of respondent No.4 based on the basis of the settlement dated 18.10.1947 is perfectly valid and legal. There was no requirement of law to get permission for such surrender or settlement before Chotanagpur Tenancy Amendment Act, 1947 which came into effect on 5.1.1948. That settlement was made in favour of the vendor of respondent No.4 after the valid surrender of the holding to the landlord by the recorded tenant. Learned Commissioner further held that the application for restoration was filed after long lapse of 37 years and the same is time barred and not maintainable. Learned Commissioner, by the impugned order, confirmed the orders passed by the S.A.R. Court and the appellate court and dismissed the revision.
15. The said order has been challenged in the instant writ petitions almost on common grounds additionally disputing and denying their inter-se claim by the petitioners and asserting their right, title over the land. The said grounds were also canvassed before the Divisional 4 Commissioner in revision. He was dealt with the same along with other grounds and observed that in the judgment of the Supreme Court in Jai Mangal Oraon Vrs. Rita Sinha it was held, inter alia, that the claim of Jai Mangal being adopted son of Sukhi Oraon is under challenge in a civil suit and some criminal case has also been instituted on the allegation that Jai Mangal has made his claim on the basis of a fabricated document long after death of Sukhi Oraon by impersonation and the matter is subjudice.
16. However, since the main concern of the petitioners in both the writ petitions is restoration of the land from possession of Rabish Kumar Sinha claiming that the land belongs to the petitioner and the transfer in favour of the said respondent is in contravention of provision of Chotanagpur Tenancy Act and fraudulent means. The inter-se claim warrants no address in this case as according to them Title Suit No. 181/2007 is pending in the court of Sub-Judge, Ranchi.
17. Adverting to the challenge to the findings recorded by the Divisional Commissioner vis-a-vis claim of the transferee Rabish Kumar Sinha, the grounds taken in the writ petitions are as follows :-
(I) The land was recorded in the name of Nanda Oraon. He had not surrendered the tenancy right. The so-called surrender in the year 1947 is invalid, as no such surrender was permissible without sanction of the Deputy Commissioner.
(II) Since there was no valid surrender in favour of the ex-landlord, the settlement claimed by the vendor of Rabish Kumar Sinha is illegal.
(III) There is no limitation for filing application for restoration under the provision of Section 71A of the Chotanagpur Tenancy Act and rejection of the claim of the petitioner on the ground of limitation is wholly erroneous. Provision of Section 71A provides for restoration of the land even in the case of acquisition of right by adverse possession by the transferee.
18. Mr. V. Shivnath, learned senior counsel appearing on behalf of the petitioner in W.P.(C) No.1871/2004 and Mr. Pradeep Gangopadhyay, learned counsel appearing for the petitioners in W.P.(C) No.2195/2005 submitted that the impugned orders of learned Special Officer, Appellate Court and the Revisional Court are wholly illegal, 5 perverse and unsustainable. There is no prescribed period of limitation for filing application for restoration of land by a tribal under the provisions of Section 71A of the C.N.T. Act. The said Section starts with the words "If at any time it comes to the notice of the Deputy Commissioner that a land belonging to a raiyat .......... who is a member of Scheduled Tribe is transferred in contravention of the provisions of the Chotanagpur Tenancy Act or by a fraudulent means ............. ." There is, thus, no limitation of time for filing application for restoration of land under Section 71A of the Chotanagpur Tenency Act. The courts below have erroneously held that the application filed for restoration is barred by limitation.
19. Learned counsel further submitted that the alleged surrender by recorded tenant was without prior permission of the Deputy Commissioner and is invalid.
20. The alleged surrender and settlement are apparently fraudulent as the same constitute one transaction and were intended for illegal transfer of land by circuitous method.
21. It has been further submitted that the courts below have held the land "Chhapparbandi" but that finding is based on no evidence on record.
22. Both the writ petitions have been contested by the private respondent- Rabish Kumar Sinha. In the counter affidavit filed by the said respondent it has been, inter alia, stated that the orders/judgments of learned courts below are sound, valid and legal and based on thorough considerations of the facts, evidences on record and the provisions of law. There is ample evidence on record to prove that the land lost its "raiyati" character long back in 1947 when the ex-landlord, after surrender of the land by the recorded tenants, came in khas possession and changed the nature of the land from "raiyati" to "chhapparbandi" by virtue of "chhapparbandi" settlement dated 18.10.1947 (Annexure-C). The said land is within Ranchi city under Ranchi Municipal Corporation. The land was never used for agriculture purpose. The land, however, is all along used for residential purpose. The said character was recognized/accepted by all concerned since 1947. The ex-landlord realized "chhapparbandi" rent so long he had right to realise rent i.e. before vesting of the estate under the provisions of the Bihar Land Reforms Act, 1950 (Annexure-F series). After vesting the State Government also recognized the said right, Jamabandi was 6 opened in the name of the settlee and chhapparbandi rent was realised from the settle (Annexure-G series) and subsequently from the transferee- Rabish Kumar Sinha. The land has been in continuous possession of the said settlee/transferee since 1947.
23. Learned counsel submitted that there was no legal requirement for seeking permission for surrender/settlement of the land before coming into force the amendment Act namely the Chotanagpur Tenancy Amendment Act, 1947 (came into force w.e.f. 5.1.1948). The settlee acquired legal and valid tenancy right, title which was recognised by the State. He remained in continuous possession without any interruption or any objection from any quarter and paid rent to the Government.
24. Learned counsel further submitted that after long lapse of 37 years Jai Mangal Oraon, for the first time, claimed restoration alleging transfer of the land in contravention of the provisions of Chotanagpur Tenancy Act on wholly frivolous plea. The Special Officer thoroughly appreciated the facts and evidences on record and rejected the claim of Jai Mangal Oraon. The appellate court as well as the revisional court also thoroughly discussed the facts and evidences and the provisions of law and upheld the finding of the Special Officer.
25. Learned counsel contended that three statutory courts have concurrently held and found that the settlement made in 1947 in favour of the vendor of Rabish Kumar Sinha was legal and valid. The nature of the land is chhapparbandi and there is no application of provisions of Section 71A of the Chotanagpur Tenancy Act. The courts have also rightly held that the claim is barred, as the same is made after unreasonably long period of more than 37 years.
26. Mr. Indrajit Sinha, learned counsel appearing on behalf of the respondent further submitted that though Section 71A of the Act starts with the words "At any time" it is meant for giving sufficient flexibility and scope to the Deputy Commissioner to implement the socio-economic policy of the Act, but that does not mean that the court of law would allow a person to invoke the provisions of Section 71A of the Act, who has slept over for a unreasonably long period. Learned counsel submitted that the words "At any time" came for consideration of the Hon'ble Supreme Court in a case in which the same petitioner Jai Mangal Oraon is a party being Jai Mangal Oraon Vs. Smt. Mira Nayak (AIR 2000 SC 2276). The Apex Court held that it cannot be taken to mean that the power could be exercised without any time limit i.e. after 7 acquiring right by 3rd party in the mean time under the ordinary law or law of limitation. Similarly in Situ Sahu & Ors. Vs. State of Jharkhand & Ors. [reported in (2004)8 SCC 340] the Hon'ble Supreme Court reiterated the same view holding that the Special Officer ought not to have exercised his power under Section 71A of the Act after unreasonably long period of time.
27. It has been urged that the courts below have held the application of Jai Mangal Oraon time barred in that light as it has been considered by them that the application for restoration was filed after a long lapse of 37 years from the date when the land in question changed its character transferred to the settlee. Learned counsel submitted that the judgments and the concurrent findings of all the three courts below are, perfectly legal and sound and require no interference.
28. I have heard learned counsel for the parties and considered the facts and materials on record. On perusal of the impugned orders, I find that learned courts have thoroughly considered all the relevant aspects and have come to the finding that the settlement in favour of the vender of the petitioner was valid. The land lost its "raiyati" character long back in 1947. It was converted into "chhapparbandi" land by virtue of settlement dated 18.10.1947. I find that the respondents have brought on record the registered deed of surrender and the registered deed of settlement of the same date. On that basis it has been contended by learned counsel for the petitioner that the two deeds constituted one transaction that is the transfer of the land from the lands of a tribal to the land of a non-tribal. That circuitous method of transfer is not permissible in law and the said transfer is wholly illegal and inoperative and the same did not confer any right on the erstwhile settlee.
29. It is true that if the surrender and the settlement constitute one transaction and if the settlee is found to be instrumental behind the said transaction for effecting transfer of land belonging to a member of the scheduled tribe to a non-tribal, such transaction contravenes Section 46 of the Chotanagpur Tenancy Act and cannot be held to be valid.
30. However, only because the surrender and settlement are of the same date or the deed of surrender is registered subsequent to the date of settlement, it cannot be inferred that the settlement constituted one transaction and that the settlee was instrumental in getting the said surrender and settlement for the purpose of effecting the transfer of land belonging to member of Scheduled Tribe to the member of non-tribal.
831. If any document is assailed on the ground of it being colourable, fraudulent, sham or shabby, the same has to be specifically pleaded and then proved by cogent evidence.
32. In the instant case it was neither pleaded by the applicants that the settlee was instrumental in getting the surrender and settlement with the intention to bye-pass the provisions of Section 46 of the Chotanagpur Tenancy Act nor there is any evidence on record to show that the surrender and settlement constituted the same transaction and that the settlee was instrumental in effecting the same.
33. Mr. V. Shivnath, learned senior counsel invited the notice of the Court on the registration number of the deeds. Admittedly the registration no. of the deed of surrender is subsequent to the number of registration of the deed of settlement. It is well known that the point of execution of the deed is not determined by the date of registration. In a given case, a deed may be executed on one date and may be presented for registration on a later date. The presentation of deed for registration does not determine the date/time of execution of the deed. Subsequent registration of a deed executed earlier is not unusual. I find no such plea or any evidence to hold that the deed of surrender and settlement was brought about fraudulently at the instance of the settlee in order to acquire the land of a tribal by a circuitous method.
34. On the point of limitation learned counsel for the petitioners have rightly submitted that no limitation is prescribed for filing application for restoration which is evident from the opening words of Section 71A of the Chotanagpur Tenancy Act.
35. However, since the Apex Court has already held and decided in the case of Jai Mangal Oraon and in the case of Situ Sahu (Supra) the words "at any time" do not mean to provide a period for exercising the right in infinity. The Hon'ble Supreme Court has held that the Special Officer cannot exercise his power under Section 71A after an unreasonable long period of time.
36. In the instant case the application made after lapse of 37 years has been, thus, rightly held to be barred in absence of any explanation for making the application after such a long time.
37. The said grounds which were also taken by the writ petitioners in the courts below have been thoroughly discussed, considered and rightly replied by the three statutory courts in a row.
938. I find no illegality or error in the findings, judgments/orders of the learned court below.
39. These writ petitions are accordingly dismissed.
(Narendra Nath Tiwari, J) Jharkhand High Court, Ranchi.
Dated 21st March, 2012 Shamim/AFR