Jharkhand High Court
The State Of Jharkhand vs Hansraj Ram on 26 February, 2020
Equivalent citations: AIRONLINE 2020 JHA 1283
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 68 of 2019
1.The State of Jharkhand.
2.The Deputy Commissioner, Ranchi Collectorate, P.O. Ranchi, P.S.
Kotwali, District Ranchi.
3.The Special Officer, Schedule Area Regulation, Ranchi Collectorate, P.O.
Ranchi, P.S. Kotwali, District Ranchi. ...... Appellants /Respondents
Versus
1.Hansraj Ram
2.Deoraj Ram
Both sons of Shiv Lochan Ram, Resident of Village Hehal, P.O. & P.S.
Sukhdeonagar, District-Ranchi ....... Respondents/writ petitioners
3.Benedik Tirkey Son of Late Benjamin Tirkey of Village Hehal, P.O. &
P.S. Sukhdeonagar, District-Ranchi.
...... Performa Respondents/ Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Atanu Banerjee, Advocate
For the Respondents :
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Oral Judgment:
Order No.6/Dated: 26th February, 2020
I.A. No.3761 of 2019
This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 48 days in preferring this Letters Patent Appeal.
2. Heard.
3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellants were prevented by sufficient cause in preferring the appeal within the period of limitation.
4. Accordingly, I.A. No.3761 of 2019 is allowed and delay of 48 days in preferring the appeal is condoned.
L.P.A. No.68 of 2019
5. This instant intra court appeal is directed against the order/judgment dated 19.09.2018 passed by the learned Single Judge of this Court in 2 W.P.(C) No.4938 of 2016, whereby and whereunder the order dated 13.04.2016 passed by the Deputy Commissioner, Ranchi, appellant no.2/respondent no.2, reversing the order dated 22.08.2013 passed by the Special Officer, Schedule Area Regulation, Ranchi, appellant no.3/respondent no.3 and directing for restoration of the land in favour of the respondent no.4, has been held not sustainable and, accordingly stood quashed and set aside.
6. The brief facts of the case, which require to be enumerated for proper consideration of the lis, read hereunder as:
The respondent no.3 filed a petition under section 71A of the Chotanagpur Tenancy Act, 1908 (hereinafter in short 'C.N.T Act') before the appellant no.3/respondent no.3 for restoration of the land pertaining to Plot no.1564, Khata no.94, Thana no.203, Mouja Hehal, District Ranchi, measuring an area of 5.5 Kathas, alleging therein that the same has been occupied by the writ petitioners/respondent nos.1 and 2 by playing fraud.
The appellant no.3/respondent no.3 vide order 22.08.2013 revalidated the land in question in favour of the respondent nos.1 and 2/ writ petitioners, on payment of Rs.1,77,000/- per decimal in favour of the respondent no.3 under the provision of Section 71A of the C.N.T. Act. The respondent nos.1 and 2/writ petitioners paid an amount of Rs.16,10,000/- through demand draft in favour of the respondent no.3 which was duly received by him.
Subsequently, the appellant no.3/respondent no.3 on the direction of appellant no.2/respondent no.2 preferred an appeal being S.A.R. Appeal No.53 R 15 of 2014-15 after lapse of about one year. The appellant no.2/respondent no.2 vide order dated 13.04.2016, has set aside the order dated 22.08.2013 passed by the appellant no.3/respondent no.3, restored the land in question in favour of the respondent no.4 to the writ petition. The 3 respondent nos.1 and 2/writ petitioners approached to this Court, inter alia, on the ground that once the property has been revalidated as directed by the appellant no.3/respondent no.3 and compensation amount has already been paid to the heirs to the respondent no.4 to the writ petition, there was no occasion for the appellant no.3/respondent no.3 to prefer an appeal against his own order, therefore, the action of the appellant no.3/respondent no.3 is not proper. Further, ground has been agitated that the appellant no.3/respondent no.3 had filed appeal before the appellant no.2/respondent no.2 on the direction of the appellant no.2/respondent no.2 itself and hence the appellant no.2/respondent no.2 being an appellate authority, passed the order dated 13.04.2016 relying upon the report submitted by the team of experts, is in gross illegality as because respondent no.2 has become a judge of his own cause and hence the order passed by the appellant no.2/respondent no.2, reversing the order passed by the appellant no.3/respondent no.3 is absolutely illegal and not sustainable in the eye of law.
The learned Single Judge of this Court considering the submission/grounds agitated by the writ petitioners, allowed the writ petition by setting aside the orders dated 13.04.2016 passed by the appellant no.2/respondent no.2, restoring the order dated 22.08.2013 passed by the appellant no.3/respondent no.3.
7. Mr. Atanu Banerjee, Sr. S.C-III for the appellant/State has assailed the order passed by the learned Single Jude, inter alia, on the ground that the Deputy Commissioner being an appellate authority can also look into in the administrative side by taking decision, as to whether an appeal is to be filed against the order passed by the Special Officer, Schedule Area Regulation, Ranchi, in exercise of power conferred under section 71A of the C.N.T Act 4 since it is beneficial legislation, therefore, appellant no.2/respondent no.2 has got enough power even in the administrative side to direct the Special Officer, Schedule Area Regulation to prefer an appeal even if the private respondent, the tribal, is not coming forward to prefer an appeal.
8. This Court having heard the learned counsel for the parties and on appreciation of the rival submissions, deem it fit and proper to refer some undisputed facts, which read hereunder as:
The land in question said to have been transferred sometimes in the year 1943-44 by tribal in favour of non-tribal. The restoration application has been filed under Section 71A of the C.N.T. Act in the year 2012-13 before the Special Officer, Schedule Area Regulation, Ranchi, for restoration of the land in question in favour of the respondent no.3. The Special Officer, Schedule Area Regulation, Ranchi, vide order dated 22.08.2013, revalidated the land in question in favour of the petitioners on payment of Rs.1,77,000/- per decimal in favour of the respondent no.3 under the provision of Section 71A of the C.N.T. Act. In pursuance of the aforesaid direction, the writ petitioners paid a total sum of Rs.16,10,000 /- through demand draft in favour of the respondent no.3 which was duly received by him.
Admittedly, herein the respondent no.3 has not approached the appellate authority, rather as would appear from the memorandum of appeal, the appeal has been preferred by the State of Jharkhand through the Special Officer, Schedule Area Regulation, Ranchi, against the order passed in S.A.R. Case No.403 of 2012-13 dated 22.08.2013 before the Deputy Commissioner, Ranchi, and the appellate authority has reversed the order passed by the appellant no.3/respondent no.3 in SAR Case No.403 of 2012- 13 against which the writ petition has been filed, the same has been allowed, which is the subject matter of present intra court appeal. 5
It is evident from the order passed by the learned Single Judge, which made him to reach to the conclusion by holding the order passed by the appellant no.2 as illegal, on the ground that the respondent no.3 had not approached to the appellate forum, rather on the basis of enquiry conducted by team of experts constituted under the instruction of the appellant no.2/respondent no.2, also having the power of statutory appeal in exercise of power conferred under section 215 of the C.N.T Act, 1908.
The appellant no.3/respondent no.3, accordingly, preferred appeal before the appellant no.2/respondent no.2, thereafter had decided the appeal against the writ petitioners.
It cannot be disputed about object and intent of the C.N.T Act, 1908, which is by way of beneficial legislation, to benefit the tribal/other category of people living in the area of the C.N.T region. The C.N.T. Act, 1908 has been carved out in order to protect the property of the tribal people or the other category in whose favour the act has been enacted.
The C.N.T. Act, 1908 has been amended in the year 1969 by bringing a legislation as under section 71A of the C.N.T. Act, meant for restoration of the land, if the land has been transferred from tribal to non-tribal in violation of the C.N.T. Act. For ready reference, section 71A of the C.N.T. Act is being reproduced hereunder as:
"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred.- 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 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 proposed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation and restore it 6 to the transferor or his heir, or in case the transferor or his heir is not available or is not willing to agree to such restoration, re- settle 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 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 such transfer 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 Deputy Commissioner for rehabilitation of the transferor:
Provided also that if after an enquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred 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 the 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."
It is evident from Section 71A of the C.N.T. Act, which stipulates therein that if at any time, it comes to the notice of the Deputy Commissioner that the land has been transferred in violation of the provisions of the C.N.T. Act, 1908, the land would be restored in favour of the original raiyat. The proviso has been made therein that if the substantial structure or construction would be found over the land in question prior to the Schedule Area Amendment Act, 1969, the recorded raiyat or the legal 7 heirs would be compensated equal to the value of the land, meaning thereby, under the second proviso to Section 71A of the C.N.T. Act, the requirement for compensating the recorded raiyat or the legal heirs is in a condition that a substantial structure is found to be there prior to the Schedule Area Amendment Act, 1969.
9. The provision of Section 71A has been considered by the Hon'ble Apex Court in a case, where issue fell for consideration pertaining to limitation in filing the application for restoration under section 71A of the C.N.T. Act, 1908, interpreting the same the Hon'ble Apex Court has been pleased to hold that at any time as contained under section 71A of the C.N.T. Act, 1908, does not mean that the application for restoration can be filed at any time, rather the application is to be filed within a reasonable period.
The case in hand herein is, an application for restoration under section 71A has been filed by the respondent no.3 before the Special Officer, Schedule Area Regulation, Ranchi being S.A.R. Case No.403 of 2012-13. The Special Officer, Schedule Area Regulation, has come to a finding about availability of substantial structure erected prior to the Amendment Act, 1969, which led the Special Officer to come to a finding about compensating the respondent no.3 in exercise of power conferred under second proviso to Section 71A of the C.N.T. Act, 1908. On the basis of such order, the value of the land has been assessed to the tune of Rs.1,77,000/- per decimal which has been directed to be paid by the writ petitioners-respondent nos.1 and 2 in favour of the respondent no.3. On calculation, the total amount of Rs.16,10,000/- has been paid by the writ petitioners in favour of the respondent no.3 through demand draft which has been accepted by the respondent no.3.
8
It is thus, evident that the order passed by the appellant no.3 has already been acted upon by the parties, since the amount has already been deposited and thereafter, the transfer has been revalidated in favour of the writ petitioners, the C.N.T. Act, 1908 contains a provision to prefer appeal under section 215 of the C.N.T. Act, conferring power of appeal to the Deputy Commissioner of the concerned district, herein the Deputy Commissioner, Ranchi (Jharkhand). As would appear from the material available on record, it is not in dispute that after the order having been passed by the appellant no.3, the Deputy Commissioner, Ranchi directed for conducting enquiry about illegal transfer of the land of the tribal in favour of the non-tribal and on the basis of enquiry report, the Deputy Commissioner has directed the appellant no.3/respondent no.3 to prefer appeal against his own order, accordingly, the appeal has been filed by the appellant no.3/respondent no.3, the Special Officer, Schedule Area Regulation, Ranchi.
Now the question is, if the Act has been enacted by way of beneficial legislation and when in lieu of the land, the amount has been paid in favour of the respondent no.3 herein on the basis of the adjudication of the rate of the land made by the Special Officer, Schedule Area Regulation, Ranchi which has been paid by the writ petitioners in favour of the respondent no.3, the moment it has been accepted by him, cannot be said to be aggrieved and, therefore, he has chosen not to prefer appeal against the order passed by the appellant no.3/respondent no.3 in S.A.R. Case No.403 of 2012-13, rather the appeal has been filed on the direction of the appellant no.2/respondent no.2 by the respondent no.3. The appeal has been filed by the appellant no.3/respondent no.3-Special Officer, Schedule Area Regulation, Ranchi which has been allowed by the appellant no.2/respondent no.2. 9
The learned Single Judge, has considered this aspect of the matter by considering the principle that a man cannot be a judge of his own cause and, therefore, has come to a definite finding about non-sustainability of the order passed by appellant no.2/respondent no.2.
10. It is settled position of law the principle of 'nemo judex in sua causa' as because in administrative law, the rules of natural justice have traditionally been regarded comprising the principles of audi alteram partem and nemo judex in causa sua. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased, reference may be made to the judgment of the Hon'ble Apex Court in the case of Mahipal Singh Tomar vs. State of U.P. and Others reported in (2013) 16 SCC 771 (para-
15).
11. The fact of the case in hand is that the private respondent has not chosen to file appeal against the order passed by the appellant no.3/respondent no.3. It is not in dispute that the appellant no.2/respondent no.2 is having the power of appeal as under section 215 of the C.N.T. Act, 1908, but the question is that when the appellate authority himself has taken decision, basis upon enquiry report, to file an appeal, upon which, direction has been issued to appellant no.3/respondent no.3 to file appeal, it cannot be said that the principle of 'nemo judex in sua causa' is not applicable since the appellant no.2/ respondent no.2 has shown its interest and it cannot be accepted from him having no biasness about the issue. 10
Learned Single Judge has taken into consideration this aspect of the matter, while quashing and setting aside the order passed by the appellant no.2/respondent no.2, which according to us, cannot be faulted with.
The second ground for quashing and setting aside the order passed by the appellant no.2/respondent no.2, the appellant no.3/respondent no.3 has acted upon the amount which has been assessed for revalidation of transfer to the tune of Rs.1,77,000/- per decimal, has been paid by the writ petitioners in favour of the respondent no.4 to the writ petition in entirety, and on a query made by the learned Single Judge to the respondent no.4 to the writ petition, as to whether he is ready to refund the amount which he has accepted, he has given answer in negative which also led the learned Single Judge in giving a finding about the illegality of the order passed by the appellant no.2/respondent no.2.
Further, however the said point has not been agitated by the parties but since this Court is sitting under intra court appeal, therefore, the issue of limitation which has been raised in course of argument, according to the writ petitioners, if there is stipulation made that at any time the application for restoration under section 71A of the C.N.T Act can be filed, but the Hon'ble Apex Court having decided the said issue in the case of Situ Sahu & Ors. vs. State of Jharkhand & Ors. reported in 2004 (4) JCR SC 211 wherein it has been laid down that under section 71A of the C.N.T. Act, it has been stipulated that an application for restoration of the land can be dealt with, if filed within reasonable time Admittedly, herein the transfer has been said to be made in the year 1943-44, while application for restoration has been filed in the year 2012-13 which is after lapse of about more than 75 years and, therefore, on this count also, according to us, the application filed under section 71A of the C.N.T. 11 Act ought not to have been entertained, there cannot be restoration of the land as has been directed by the appellant no.2/respondent no.2 while passing the order.
12. This Court in the entirety of the facts and taking into consideration the decision as has been taken by the learned Single Judge, has committed no error while passing the order.
13. Accordingly, the appeal fails and it is dismissed.
Consequently, I.A. No.1022 of 2019 also stands dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saket/-
A.F.R.