Jharkhand High Court
Elizabeth Horo vs State Of Jharkhand & Ors. on 19 May, 2016
Author: Virender Singh
Bench: Virender Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 739 of 2004
Elizabeth Horo, daughter of Late John Horo, resident of village
Kumardungi, P.O. Kumardungi, P.S. Kumardungi, DistrictWest
Singhbhum ... ... Appellant
Versus
1. The state of Jharkhand
2. The Commissioner (Kolhan Division), Chaibasa, P.O. Chaibasa,
P.S. Chaibasa, District Singhbhum West
3. The Deputy Commissioner, Singhbhum West, Chaibasa, P.O.
Chaibasa, P.S. Chaibasa, District Singhbhum West
4. The Land Reforms Deputy Collector, Sadar, Chaibasa, P.O.
Chaibasa, P.S. Chaibasa, DistrictSinghbhum West
5. Purno Gagrai, son of Late Manchuria Gagrai, resident of village
Kumardungi, P.O. Kumardungi, P.S. Kumardungi, District
Singhbhum West
6. Laldeo Giri, son of Late Khijan Giri, resident of village
Kumardungi, P.O. Kumardungi, P.S. Kumardungi, District
Singhbhum West ... ... Respondents
For the Appellant : Mrs. Ritu Kumar, Advocate
Mr. Samavesh Bhanj Deo, Advocate
For the State : Mr. Vineet Prakash, JC to SC (L&C)
CORAM: HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
14/Dated: 19 th May, 2016
Per Virender Singh, C.J.
Challenging maintainability of the application for
restoration under Section 71A of the Chotanagpur Tenancy Act,
1908, the appellantwrit petitioner (hereinafter to be referred as
"petitioner") approached the Writ Court in W.P.(C) No. 5494 of
2004 which stands dismissed vide impugned order dated
13.10.2004. Aggrieved thereof, the petitioner has filed the present Letters Patent Appeal.
2. Heard the learned counsel for the parties and perused the documents on record.
23. The learned counsel for the petitioner submits that the order of restoration of possession to respondent no. 5 was a serious mistake committed by the SAR Court inasmuch as, the restoration application under Section 71A of the Chotanagpur Tenancy Act was filed on the ground of default of payment of rent against the husband of the petitioner. However, the aforesaid error was ignored by the Appellate as well as the Revisional Authority and the learned Writ Court summarily dismissed the writ petition. Contending that the petitioner had constructed house over the land in question and developed an orchard about 40 years prior to initiation of SAR Case No. 199091, it is contended that ignoring the fact that the application under Section 71A was filed much beyond the period of limitation, order of restoration has been passed which warrants interference by this Court.
4. Respondent No. 5 has chosen not to appear in the present proceeding.
5. The learned State counsel submits that the possession of the petitioner and/or her husband was in contravention of the provisions under the Chotanagpur Tenancy Act and the plea taken by the petitioner that she came in possession over the suit land by virtue of an agreement to sale executed in her favour would not validate the possession of the petitioner or her husband.
6. Before adverting to the rival contentions, it needs to be recorded that in the proceeding of SAR Case No. 8 of 199091 which was initiated for restoration of possession from the husband of the petitioner, the petitioner did not get herself impleaded. It further appears that the petitioner's husband never produced the alleged sale agreement in the proceeding of SAR Case No. 8 of 199091 and only after the order passed in SAR Case No. 8 of 199091 was setaside and the matter was remitted to the SAR Court, the petitioner took a plea that she came in possession over the land in question by virtue of a sale agreement.
37. Now, adverting to the plea that the proceeding, which was initiated on the ground of alleged default in payment of rent, could not have been under Section 71A of the Chotanagpur Tenancy Act, the object behind Section 71A needs to be noticed. Section 71A is extracted below:
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 KhuntKattidar 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 or 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 as 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 Commissioner for rehabilitation of the transferor:
Provided also that if after an inquiry the 4 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 the 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.
8. A reading of Section 71A of the Chotanagpur Tenancy Act makes it clear that any transfer in contravention of Section 46 or Section 48 or Section 240 or by any fraudulent method would be invalid and the possession over the land so transferred would be unlawful. May be, the initial possession of the husband of the petitioner was lawful however, after he stopped payment of rent, the same must be held in contravention of the provisions under the Chotanagpur Tenancy Act, 1908.
9. In so far as contention of the petitioner that she came in possession over the land in question by virtue of an agreement to sale is concerned, the SAR Court, after remand, in its order dated 09.11.2001 has held that certain documents were created after illegal possession over the suit land. The revenue records disclosed that the land comprised under Khata No. 299, Plot No. 1756 admeasuring about 0.40 acres is the Khatiyani land of Late Manchuria Gagrai Ho who was the father of respondent no. 5. The husband of the petitioner was employed in the Health Department and he became a tenant. The courts below found that neither permission under Section 46 of the Chotanagpur Tenancy Act was taken nor any registered saledeed was produced by the petitioner to claim possession over the suit land. In so far as possession of the petitioner and her husband is concerned, the courts below have recorded a finding that they came over the suit land on or after 1975. We find that the application under 5 Section 71A was filed in the year, 1990 and thus, the same was within the period of limitation.
10. Considering the object and purpose behind Section 46 and Section 71A of the Chotanagpur Tenancy Act, 1908 and the fact that the issue is concluded by the concurrent findings of fact recorded by the courts constituted under the CNT Act, we find no merit in the instant Letters Patent Appeal which warrants dismissal. Ordered accordingly.
(Virender Singh, C.J.) (Shree Chandrashekhar, J.) Manish