Jharkhand High Court
Harish Chandra Keshri vs The State Of Jharkhand Through Its ... on 27 June, 2018
Equivalent citations: 2019 (1) AJR 365, (2018) 3 JLJR 713 2019 (198) AIC (SOC) 14 (JHA), 2019 (198) AIC (SOC) 14 (JHA), 2019 (198) AIC (SOC) 14 (JHA) (2018) 3 JLJR 713, (2018) 3 JLJR 713
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3860 of 2014
Harish Chandra Keshri, Son of late Lagnu Mahto, resident of
Village Karkat, P.O. Tangar & P.S. Chanho, District Ranchi
... ... Petitioner
Versus
1. The State of Jharkhand through its Secretary Revenue,
Registration and Land Reforms, Govt. of Jharkhand, Ranchi
2. The Commissioner, South Chhotanagpur Division, Ranchi,
P.O-GPO, P.S.- Kotwali, District Ranchi, Jharkhand.
3. Deputy Commissioner, Ranchi, P.O.- GPO, P.S.- Kotwali,
District, Ranchi Jharkhand.
4. Special Officer (Scheduled Area Regulation), Ranchi, P.O.-
GPO, P.S.- Kotwali, District Ranchi, Jharkhand.
5. Shibna Oraon, Son of late Nuruwa Oraon, resident of Village
Rol Bulka Toli, P.O. & P.S. Chanho, District Ranchi,
Jharkhand. ... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Kundan Kr. Ambastha, Advocate For the Respondents : Mr. Atanu Banerjee, G.A. For private respondent : Mr. Santosh Kumar Tiwary, Advocate
---
09/27.06.2018
1. Heard Mr. Kundan Kumar Ambastha, counsel appearing for the petitioner.
2. Heard Mr. Atanu Banerjee, counsel appearing for the respondent-State.
3. Heard Mr. Santosh Kumar Tiwary, counsel appearing for the private Respondent no. 5.
4. At the outset, counsel for the petitioner submits that the State of Jharkhand which has been impleaded as a party in this case has to be represented through the Secretary, Revenue, Registration and Land Reforms Department, Govt. of Jharkhand, Ranchi, but this description is missing in the cause-title and accordingly, he seeks permission to make necessary correction in the cause-title in red ink during the course of the day. Counsel for the respondents have no objection to this prayer. Accordingly 2 the petitioner is permitted to make the aforesaid additions in the cause title in red ink during the course of the day.
5. This writ petition has been filed for the following reliefs:
"a. For a direction for quashing the order dated 26.06.2014 (Annexure-
7), passed by the respondent No.3, the Deputy Commissioner, Ranchi in Misc. Appeal No. 57 R 15 of 2012-13 in purported exercise of his power under Section 49(5) of the Chhotanagpur Tenancy Act, whereby and whereunder he has set aside the permission of sale granted to the petitioner in Permission Case No. 9 of 1990-91 on 5.2.1992 and has annulled the registered sale deed dated 2.11.1993 executed in favour of the petitioner by the private-respondent No. 5 Shibna Oraon and his co-sharers, which is in teeth of the judgment passed by this Hon'ble High Court in writ petition bearing W.P.C. No. 4475 of 2005, whereby and whereunder this Hon'ble Court allowed the writ petition of the petitioner by quashing the order dated 6.12.1996 of restoration passed under Section 71(A) of the Chhotanagpur Tenancy Act, by the respondent no. 4, Special Officer (Scheduled Area Regulation), the order dated 4.11.1999, passed by the respondent No. 3, the Deputy Commissioner, Ranchi and the order dated 8.7.2005, passed by the respondent No. 2, the Commissioner, South Chhontanagpur Division, Ranchi; and b. For a direction restraining the respondents from interfering with peaceful possession of the petitioner over the lands in question."
6. Counsel for the petitioner submits as under:
a) The matter relates to cancellation of permission to transfer of property under Section 49(5) of Chotanagpur Tenancy Act, 1908. He submits that in order to set-up small scale industry for manufacture of tiles, an application under Section 49 of Chotanagpur Tenancy Act, 1908 was filed before the respondent no. 3 - Deputy Commissioner, Ranchi for grant of permission to purchase plot No. 1721 measuring an area of 0.58 acres in village Tangar, district-
Ranchi which was registered as Permission Case No. 9 of 1990-91 and pursuant to such application and after 3 completing all the formalities, the permission was granted vide order dated 05.02.1992 for a consideration amount of Rs. 35,000/-.
b) After completing further formalities and upon payment of consideration amount, the sale-deed in connection with aforesaid property was registered as registered-deed no. 8794 dated 02.11.1993 and the petitioner started his manufacturing unit and the property was also mutated in the name of the petitioner.
c) An application under Section 71A of Chotanagpur Tenancy Act, 1908 was filed by the private respondent for restoration of the same land which has been transferred vide registered sale-deed dated 02.11.1993 and the same was registered as S.A.R. Case No. 135 of 1995 and after hearing the parties, the Special Officer (Scheduled Area Regulation), Ranchi by order dated 06.12.1996 passed an order for restoration of land in favour of the private respondent against which, an appeal was filed which was numbered as S.A.R. Appeal No. 14 R 28 of 1998-99 which was dismissed vide order dated 04.11.1999.
d) Against the dismissal of the said appeal, S.A.R. Revision Case No. 154 of 1999 was filed before the Commissioner, South Chhotanagpur Division, Ranchi and the said revision petition was also dismissed vide order dated 08.07.2005 and ultimately, against the order of restoration, the petitioner filed a writ petition before this Court being W.P. (C) No. 4475 of 2005 and the same was allowed in favour of the petitioner vide judgment dated 22.12.2008. By referring to the said judgment dated 22.12.2008, the counsel for the petitioner submits that a specific submission was made before this Court in that writ petition that transfer of the land was made after complying with the provisions of Section 49(1) to 49(4) 4 and it can only be annulled or set-aside by the State Government in exercise of powers under the provisions of Section 49(5) of Chotanagpur Tenancy Act, 1908 and not otherwise and therefore, a submission was made that the order of restoration passed under Section 71A of Chotanagpur Tenancy Act, 1908 was wholly without jurisdiction .
e) He submits that after considering the submissions made by the petitioner and after considering the various judgments cited by the petitioner, this Court vide order dated 22.12.2008 in W.P.(C) No. 4475 of 2005 held that the transfer of property was made after obtaining permission under Section 49 of Chotanagpur Tenancy Act, 1908, the property cannot be subject matter of restoration under Section 71A of Chotanagpur Tenancy Act, 1908. He submits that accordingly the order passed under Section 71A of Chotanagpur Tenancy Act, 1908 regarding restoration of land and all the subsequent orders of appeal and revision arising out of said order dated 06.12.1996 passed by the Special Officer, Scheduled Area Regulation, Ranchi were set-aside in W.P.(C) No. 4475 of 2005.
f) Thereafter, another petition was filed by the private respondent which was numbered as Miscellaneous Case No. 57 R 15 of 2012-13 and the same was coupled with a petition for condonation of delay under Section 5 of the Limitation Act, 1963 and the Deputy Commissioner vide order dated 26.06.2014 passed the impugned order although the same has been numbered as Miscellaneous Appeal No. 57 R 15 of 2012-13. He submits that by this order the Deputy Commissioner cancelled the aforesaid permission granted to the petitioner vide aforesaid Permission Case No. 9/1990-91 dated 05.02.1992. The said authority further ignored the delay in filing application for 5 cancellation of Permission by taking recourse to Section 14 of the Limitation Act, 1963.
g) He further submits that the order passed by the Deputy Commissioner is wholly without jurisdiction in as much as the power under Section 49(5) of the Chotanagpur Tenancy Act, 1908 for cancellation of permission to transfer has been conferred upon the State Government and the learned Deputy Commissioner could not have passed the said order. He submits that while passing the order, the Deputy Commissioner was further misguided by his understanding that this Hon'ble Court in W.P.(C) No. 4475 of 2005 held that the permission by the Deputy Commissioner under Section 49 of the Chotanagpur Tenancy Act, 1908 can only be annulled and set-aside by the Deputy Commissioner under Section 49(5) of the Chotanagpur Tenancy Act, 1908.
h) He submits that the Deputy Commissioner while passing the impugned order has also invoked Section 14 of the Limitation Act, 1963 and had entertained the application. He submits that under Section 49(5) of Chotanagpur Tenancy Act, the period of limitation prescribed is only 12 (twelve) years. In the instant case, the petition for cancellation was filed on 13.09.2012 whereas, permission for transfer was granted on 05.02.1992. He submits that the provisions of the Limitation Act, 1963 are not applicable to the provisions of the Chotanagpur Tenancy Act, 1908 and accordingly, neither Section 5 of the Limitation Act, 1963 can be invoked nor Section 14 of the Limitation Act, 1963 can be invoked.
i) He submits that the order of the Deputy Commissioner, Ranchi is wholly without jurisdiction and now the matter cannot be taken up by the State Government as the application for cancellation has become time-barred upon 6 expiry of 12 years from the date of grant of permission as back as on 05.02.1992.
7. Counsel for the private respondent, on the other hand, submits that the permission to transfer was granted on 05.02.1992 and immediately thereafter, an application under Section 71A of Chotanagpur Tenancy Act, 1908 was filed which was numbered as S.A.R. Case No. 135 of 1995 wherein, a prayer was made to annul the registered sale-deed of the year, 1993. The application for restoration was allowed by S.A.R. Court and the appeal as well as the revision against the said order was dismissed by the appellate authority and the revisional authority respectively. Ultimately, in W.P.(C) No. 4475 of 2005 it was held that an application under Section 71A of the Chotanagpur Tenancy Act, 1908 was not maintainable and the proper remedy is under Section 49(5) of Chotanagpur Tenancy Act, 1908. Accordingly, the order of the High Court was passed on 22.12.2008 and thereafter, the private respondent filed his application before the authorized officer of the State Government-cum-Deputy Commissioner which was numbered as Miscellaneous Case No. 57 R 15 of 2012-13, which was allowed by the impugned order.
8. Counsel for the private respondent submits that he had addressed the petition to the authorized officer of the State Government and the specific provision of Section 49(5) of Chotanagpur Tenancy Act, 1908 was also mentioned in the petition and the Deputy Commissioner had also entertained the said petition and had decided the matter vide order dated 26.06.2014 under a misconception of law that he is empowered to do so and ultimately, the impugned order was passed.
9. He submits that even if the impugned order passed by the Deputy Commissioner, Ranchi is held to be without jurisdiction, the right of the private respondent to proper adjudication of his 7 application under Section 49(5) of the Chotanagpur Tenancy Act, 1908 cannot be said to have extinguished in view of the specific provisions of Section 14 and Section 5 of the Limitation Act, 1963.
10. Counsel for the private respondent also submits that as per Section 230 of the Chotanagpur Tenancy Act, 1908, the applicability of the Limitation Act, 1963 is not barred. He submits that the petition which was filed and addressed to the authorized officer of the State Government ought to have been sent by the Deputy Commissioner to the State Government who is represented through Secretary, Revenue, Registration and Land Reforms Department, State of Jharkhand, Ranchi for proper adjudication but the same having been entertained and adjudicated by the Deputy Commissioner, the private respondent herein is not at fault.
11. He further submits that even the counsel appearing on behalf of the petitioner did not point it out before the Deputy Commissioner that he had no jurisdiction to pass order under Section 49(5) of the Chotanagpur Tenancy Act, 1908.
12. Counsel appearing for the respondent-State, on the other hand, submits that as per the provisions of Section 49(5) of the Act, the competent authority is the State Government and the State Government will be represented by the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, Ranchi. He submits that apparently the power has been exercised by the Deputy Commissioner under some misconception of law that he is empowered to exercise powers under Section 49(5) of the Chotanagpur Tenancy Act, 1908. He further submits that the matter may be remitted to the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, Ranchi and the Deputy Commissioner may be directed to remit the entire records of Miscellaneous Case No. 57 R 15 of 2012-13 to the aforesaid 8 Secretary so that appropriate order under Section 49(5) may be passed by the competent authority.
13. Counsel for the respondent-State also submits that so far as point of law regarding applicability of Limitation Act, 1963 is concerned, Section 230 of the Chotanagpur Tenancy Act, 1908 is very clear and accordingly, it cannot be said that the provisions of Section 5 and Section 14 of the Limitation Act, 1963 are not applicable and accordingly, he submits that the contention of the petitioner that the matter cannot be taken up by the State Government as the period of 12 years has already expired is devoid of on merit.
14. After hearing the counsel for the parties and after going through the materials on record, this Court finds that the permission for transfer was granted on 05.02.1992 and the S.A.R. case under section 71A of Chotanagpur Tenancy Act, 1908 for restoration of land was filed on 21.10.1995 which was allowed in favour of the private respondent herein. Against the said order passed in the S.A.R. case, the appeal and the revision was dismissed and thereafter, the writ petition was filed which was numbered as W.P.(C) No. 4475 of 2005 and the writ petition was ultimately decided on 22.12.2008 holding that the petition under Section 71A of the Chotanagpur Tenancy Act, 1908 for restoration of land which was filed by the private respondent herein, was itself not maintainable.
15. Thereafter, the private respondent filed application addressed to the authorized officer of the State Government- cum- Deputy Commissioner which was numbered as Miscellaneous Case No. 57 R 15 of 2012-13 invoking the provisions of Section 49(5) of the Chotanagpur Tenancy Act, 1908. It appears that before the Deputy Commissioner, none of the parties pointed out that the power under Section 49(5) of the Chotanagpur Tenancy Act, 1908 has to be exercised by the State Government. Under such circumstances, the Deputy 9 Commissioner, after hearing the parties, passed an order of annulment of the permission which is the impugned order in this writ petition and now the petitioner has taken a plea that the order passed by the Deputy Commissioner in purported exercise of power under Section 49(5) of the Chotanagpur Tenancy Act, 1908 is also without jurisdiction.
16. Section 49(5) of the Chotanagpur Tenancy Act, 1908 reads as follows:
"(5) The State Government may, at any time within a period of twelve years from the date on which written consent is given by the Deputy Commissioner in regard to the transfer of any holding or part thereof belonging to an occupancy-raiyat, who is a member of the Scheduled Tribes either on its own motion or on an application made to it in this behalf set aside such written consent and annul the transfer, if after holding an inquiry in the prescribed manner and after giving reasonable opportunity to the parties concerned to be heard it finds that the consent had been obtained in contravention of the provisions of sub-sections (1) and (2) by misrepresentation or fraud, and in case any holding or part thereof has been transferred on the basis of such written consent direct the Deputy Commissioner to take further necessary action under clause
(c) of sub-section 4-A of Section 46."
This Court finds that upon bare reading of Section 49(5) of the Chotanagpur Tenancy Act, 1908, it is clear that the power under Section 49(5) of Chotanagpur Tenancy Act, 1908 has to be exercised by the State Government and the consequential follow- up action has to be taken by the Deputy Commissioner.
17. Accordingly, this Court holds that the impugned order dated 26.06.2014 passed by the Deputy Commissioner in purported exercise of powers under Section 49(5) of the Chotanagpur Tenancy Act, 1908 is wholly without jurisdiction.
18. Further the other point regarding limitation and the contention of the petitioner that the matter cannot be taken up now by the State Government as 12 years have already elapsed from the date of permission, has to be decided by this Court. This 10 Court is not inclined to accept the contention raised by the petitioner particularly in view of provisions of Section 230 of the Chotanagpur Tenancy Act, 1908 which does not bar the applicability of provisions of Section 14 of the Limitation Act.
19. Section 230 of Chotanagpur Tenancy Act, 1908 reads as under:-
"230. Application of the Indian Limitation Act, 1908. - The provisions of the Indian Limitation Act [1908], (9 of 1908) shall, so far as they are not inconsistent with this Act, apply to all suits, appeals and applications under this Act."
20. This Court further finds that sufficient time has elapsed on account of the matter being taken up under different provisions of Chotanagpur Tenancy Act, 1908 by the authorities who had no jurisdiction to exercise the power and orders were passed on merits which have been ultimately found to be without jurisdiction. In such circumstances it cannot be said that the right of the private party has extinguished upon expiry of 12 years from the date of permission of transfer. In such circumstances this Court is of the considered view that the private respondent is entitled to have benefit of Section 14 of the Limitation Act, 1963 which reads as follows:
"14. Exclusion of time of proceeding bona fide in Court without jurisdiction-
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of 11 first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature."
21. This Court further finds that the application being Miscellaneous Case No. 57 R 15 of 2012-13 was addressed to the Authorized Officer of the State Government-cum-Deputy Commissioner, Ranchi and the Deputy Commissioner instead of entertaining the matter himself ought to have remitted the matter to the State Government for appropriate decision, but it seems that the Deputy Commissioner was himself under the misconception of law that he has got powers to exercise powers under Section 49(5) of the Chotanagpur Tenancy Act, 1908. In such circumstances there is neither any fault of the private respondent herein nor there is any lack of bonafides on the part of the private respondent herein while prosecuting his case before the Deputy Commissioner. Accordingly, order dated 26.06.2014 passed by the Deputy Commissioner in purported exercise of powers under Section 49(5) of Chotanagpur Tenancy Act, 1908 is hereby set-aside being wholly without jurisdiction and the matter under section 49(5) of Chotanagpur Tenancy Act, 1908 has to be taken up by the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, Ranchi. Accordingly, the Deputy Commissioner, Ranchi is directed to remit the case record of Miscellaneous Case No. 57 R 15 of 2012-13 ( numbered as Miscellaneous appeal No. 57 R 15 of 12 2012-13) to the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, Ranchi who, in turn, is directed to take appropriate decision in the matter after hearing the parties within a period of six months from the date of receipt of a copy of this order alongwith the case records of Miscellaneous Case No. 57 R 15 of 2012-13 ( numbered as Miscellaneous appeal No. 57 R 15 of 2012-13) .
22. This writ petition is hereby allowed with the aforesaid observations and directions.
(Anubha Rawat Choudhary, J.) Pankaj/-
A.F.R.