Patna High Court
Bhauri Lal Jain And Anr. vs Sub-Divisional Officer And Ors. on 24 April, 1972
Equivalent citations: AIR1973PAT1, AIR 1973 PATNA 1, 1972 BLJR 897, 1972 PATLJR 415, ILR (1972) 51 PAT 533
JUDGMENT Singh, J.
1. In these three applications under Articles 226 and 227 of the Constitution, the questions for determination arc almost similar, though not precisely the same. The question of vires of Sections 20 (1) and 42 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act XIV of 1949--hereinafter referred to as the Act), has been raised in the first two cases, while the question of vires of Sub-section (5) of Section 20 of the Act, as amended by the Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation I of 1969), has been raised in the third case. On account of the importance of the questions involved, the cases have been referred to a Full Bench, and, with the consent of the parties, these have been heard together and are being disposed of by this judgment.
2. In the first case (C. W. 3. C. No. 1573 of 1970), the order sought to be quashed is an order of the Sub-Divisional Officer, Jamtara, dated the 27th June, 1970 (contained in Annexure '6* to the writ application), holding that the petitioners had illegally and fraudulently occupied the lands belonging to respondent No. 2 and directing their ejectment under Section 42 of the Act. In the second case (C. W. J. C. No. 1793 of 1970), the order sought to be quashed is another order of the Sub-Divisional Officer, Jamtara, dated the 30th September, 1970 (contained in Annexure '3' to the said writ application), holding that certain lands belonging to respondents 2 to 5 have been unauthorisedly transferred, and directing eviction of the petitioners therefrom, under Section 42 of the Act. In the third case (C. W. J. C. No. 56 of 1971), the order sought to be quashed is also an order of the Sub-Divisional Officer, Jamtara, dated the 9th December, 1970 (contained in Annexure '3' to the said writ application), ordering eviction of the petitioner of that case from certain plots of land, under Section 20 (5) of the Act, as amended by Bihar Regulation T of 1969, holding that possession has been taken by the present petitioner in contravention of Section 20 (1) of the Act, and directing that the land be restored to the rightful owner, respondent No. 2.
3. Section 20 (1) of the Act prohibits transfer by a Raiyat of his holding, except in cases where the right to transfer was recorded in the record of rights and that also only to the extent it was so recorded. Section 20 (2) contained further restriction in case of aboriginal Raiyats, restricting their right of transfer in case of transferable holdings only to a bona fide cultivating aboriginal Raiyat of the Pargana or Taluk or Tappa, in which the land is situate. Section 42 and also Sub-section (5) of Section 20 (old) authorised the Deputy Commissioner to evict persons having acquired land in contravention of the above provisions. The scope of the amended subsection (5) of Section 20 is confined to cases of contravention of Sub-sections(1) and (2) of that section and fraudulent transfer by scheduled tribes only since the 8th February, 1969.
4. Shortly put, the defence of the petitioners in all the three cases before the Sub-Divisional Officer was that they have been in possession of the lands in question for more than 20 to 30 years, and, therefore, they acquired indefeasible title, by adverse possession. I have refrained from mentioning the cases of the parties in detail, as I shall have occasions to refer to them after deciding the question of vires of the statutes raised in these cases.
5. In these writ applications the petitioners, have challenged the vires of Sections 20 (1), 20 (5) and 42 of the Act, as being ultra vires Articles 14, 19 (1) (f) and 31 of the Constitution, on the allegation that these provisions are violative of the fundamental rights guaranteed to the citizens to acquire, hold and dispose of properties and are unreasonable restrictions on the rights of the citizens and no provision has been made for payment of compensation in respect of the lands from which the petitioners have been evicted. The provisions of the amended Sub-section (5) of Section 20 and Section 42 of the Act have been characterised as discriminatory, inasmuch as unfettered discretion has been given to the Deputy Commissioner to oust a person from his land in a summary manner.
6. A counter-affidavit has been filed on behalf of the Sub-Divisional Officer, Jamtara (respondent No. 1), in the first case and on behalf of respondents 2 to 5 (petitioners before the Sub-Divisional Officer) in the next case. In the other two cases, i.e., the first and the third, there is no appearance on behalf of the successful respondents.
7. When the cases came up to be heard by the Full Bench, it was noticed that in none of the cases the State of Bihar was made a party, although the vires of certain provisions of State laws were under challenge.. We permitted the learned counsel for the petitioners to add the State of Bihar as a respondent in these three applications. The learned Advocate-General took notice and filed a counter-affidavit in each case on behalf of the State of Bihar, sworn by Shree Phulchand Singh, Deputy Secretary to the Government of Bihar, in the Revenue Department, who had been earlier Sub-Divisional Magistrate at Saheb Ganj in the Santhal Parganas, in support of the vires of the statutes under challenge. In the counter-affidavit, facts have been alleged, asserting, that it can be taken as a established fact that the Santhals were not and are still not competent to stand on their feet and the operations of the general laws and regulations have always reacted very harshly on them. It is stated therein that between 1858 and 1871, when roads were laid and survey operations intensified, the effect was the opening up of the countrysides and there was a large influx of Bhojpuris from Bihar and Bengalis from Bengal and a large number of Mahajans and Banias throughout the district were ever ready to lend money to the spendthrift Santhals by keeping some sort of hold or the other on their lands. This losing of land by the Santhals caused grave unrest throughout the Santhal Parganas. In sub-paragraph (viii) of Paragraph 3 of the counter-affidavit, necessary details have been given on which it is asserted that a substantial portion of the population of the district depending on agriculture consists of Santhals, Paharias and some other Scheduled Tribes arid aboriginals, and in spite of provisions for advancing loan through Governmental agencies or registered money-lenders at controlled rate of interest, these Santhals and Paharias continued to remain under the clutches of unlicenced money lenders charging interests at the rates from 25 to 75 per cent.
The lands of the Raiyats being inalienable, dubious Mahajans adopted ingenious devices to grab their lands by getting various kinds of documents from them under influence of liquor and after filing suits by practising deception, got fraudulent compromise petitions filed by those Santhals and obtain compromise decrees in those suits. Under Regulation in of 1872, record of rights were prepared after giving notice to everybody concerned and existing features of holdings and prevalent customs were recorded. By and large, the holdings being completely untransferable, such of them, as were transferable by reason of custom were so recorded in the record of rights, which are conclusive and not liable to be challenged at all.
It is stated in Paragraph 6 of the counter-affidavit that it was apprehended that if the untransferable holdings were permitted to be acquired, by the growth of local usages as the characteristic of transferability, then, as a result of the backwardness and recklessness of the aboriginal, their lands would pass into the hands of the Mahajans, creating a social and economic problem of great magnitude. To meet this. Section 27 of Regulation HI of 1872 permanently imprinted on the holdings the characteristic of untransferability, preventing the future growth of any local usages to the contrary. This, however, afforded protection to such of the transferees as were in continuous cultivating possession for over twelve years, under the first proviso to subsection (3) of Section 27 of the Regulation. With regard to the Act, it is stated in the counter-affidavit that this was enacted with a view to amend the existing law and Section 27 of Regulation III of 1872 was replaced by Section 20 of the Act. The persons who had already gained protection under the provisions of Section 27 of the Regulation, were not affected, but similar future protections were withdrawn. It is also stated that Article 19 of the Constitution did not make untransferable holdings of the Santhal Parganas transferable, and, even if Article 19 of the Constitution is attracted, then having regard to the Special conditions of the Santhal Parganas, the restriction in respect of the transferability of the holdings is reasonable in the interest of the general public of the District, as also at least hi the interest of the Scheduled Tribes.
8. Mr. J.C. Sinha, appearing foe the petitioners in all these three cases, has urged that Section 42 of the Act is ultra vires Article 19 (1) (f) of the Constitution of India, because it imposes - unreasonable restrictions on the right of the petitioners to acquire and possess properties, in respect of which they have acquired title by adverse possession. He has submitted that the right of transfer by a Raiyat of an occupancy holding was a right in land in the districts of Bhagalpur and Birbhum, portions of which later came to be carved out as a separate district, called the District of Santhal Parganas, and that it was not a personal right. Therefore, he submitted that an occupancy Raiyat has a right to transfer his holding, the land being transferable, subject to the right of the landlord to take possession, if the transfer was of the whole holding. He urged that since the Raiyats in all the last two cases have transferred only a part of the holdings the landlord could not take possession of the holdings, and, although the landlord was not bound to recognise the transfers, but, vis-a-vis the Raiyats and the tranferees, the transfers are complete. According to Mr. Sinha, when the Santhal Parganas was constituted, there was no incidence of non-transferability of the occupancy holdings in the district, nor any law to that effect came on the statute book. Mr. Sinha has referred to a letter dated the 6th October, 1887, from the Secretary to the Government of Bengal, Revenue Department, addressed to the Commissioner of the Bhagalpur Division and the Santhal Parganas (printed at pages 239-43 of the Santhal Parganas Manual, 1911--Third Edition), in support of his submission that some forty thousand cases of transfer of land had been noticed, wherein a suggestion was made to restrict transfer by legislation. Thereafter, Section 27 was incorporated in Regulation III of 1872 by amendment. He submitted that Section 27 has been repealed and Section 20 of the Act has been enacted in its place in 1949, and that with the enforcement of the Constitution of India on the 26th January, 1950, such restriction on transfer would be hit by Article 19 (1) (f) of the Constitution and will get eclipsed. He has also urged that after enforcement of the Constitution, on the 26th January, 1950, the provisions of Section 42 of the Act, empowering the Collector of the District, at any time, in an arbitrary manner, to annul any transfer made in contravention of the Act, was hit by Articles 19 (1) (f), 14 and 31 of the Constitution.
9. Mr. Sinha also urged that although the Scheduled Tribes are a protected clan under the Constitution Section 42 of the Act not only protects the Scheduled Tribes, but has been made lex loci of Santhal Parganas, applicable even to the persons who are not members of the Scheduled Tribes. He emphasised in this connection that persons who are not members of the Scheduled Tribes and who do not belong to the district, have also acquired lands as already mentioned, and, in their cases also if Section 42 is allowed to stand, it will make their lands non-transferable, when there is nothing in common between these purchasers of land in Santhal Parganas, who are commonly known as Dikus (outsiders), vis-a-vis the original inhabitants in those areas, and that Section 42 was ex-propriatory, inasmuch as it took away property of A, after he has acquired valid title and gave it to B, without payment of any compensation and was clearly an ex-propriatory legislation and hit by Article 31 of the Constitution.
10. It is true that the District of Santhal Parganas was carved out of certain areas of the Districts of Bhagalpur and Birbhum by the Santhal Parganas Act, 1855 (Act XXXVH of 1855), and, even if the occupancy lands of the Raiyats were transferable in the Districts of Bhagalpur and Birbhum prior to 1855, as urged by Mr. Sinha, for which reliance is placed on a Full Bench decision of this Court in the case of Sundar Mohan Panigrahi v. Ghana Raut, 3 Pat LT 205 = (AIR 1922 Pat 114), that will not be decisive on the point of the land being ipso facto transferable in the District of Santhal Parganas. We have to examine the law, which applied to the Santhal Parganas, after its creation a 1855. Mr. Sinha's submission overlooks the basic fact that the area called Damin-i-koh and other areas of the Districts of Bhagalpur and Birbhum, principally inhabited by Santhals, were carved out as a separate district of Santhal Parganas by the Santhal Parganas Act, 1855, principally for the reason that the general Regulations and Acts in force in the Presidency of Bengal were not adapted to the "uncivilized race of the people called the Santhals", as the Preamble of the Act will itself show. The above Act of 1855 placed the new district under the superintendence and jurisdiction of an officer or officers to be appointed by the Provincial Government (as it was then called), who had to work under the directions and control of the Provincial Government, and the administration of civil and criminal justice and collection of revenue vested in such officer or officers appointed by the Government. The old laws and Regulations were, however, allowed to continue in those areas only in respect of trial of certain civil suits valued above Rs. 500/- and collection of permanently settled revenue.
11. The next legislation of importance in this regard is the Santhal Parganas Settlement Regulation, 1872 (Regulation III of 1872), which came in force on the 1st May, 1872, in the District of Santhal Parganas. This Regulation originally consisted of 26 sections. Under Section 3 of this Regulation, certain Regulations and Acts were made applicable in the District and those were mentioned in the Schedule of the Regulation. No other enactment, either passed before or after the coming into force of the Regulation was to apply to the Santhal Parganas, unless expressly made applicable to this district. It may be mentioned that the Limitation Act and the Code of Civil Procedure are amongst the enactments mentioned in the Schedule, on which basis Mr. Sinha urged that the Limitation Act was applicable to the district and title by adverse possession could be acquired. Section 9 authorised the State Government to order for survey to be made of the whole or any part of the Santhal Parganas, for the purpose of ascertaining and recording various interests and rights in land. Section 10 empowers the Government to appoint officers by whom settlement should be made and to appoint officers to hear appeals and revisions from the orders of the Settlement Officers and to make rules and prescribe procedure for such officers to investigate into the rights in lands and hearing of suits. Section 11 bars the jurisdiction of the Civil Courts regarding any matter decided by the Settlement Officer under those rules, except those of the Zamindars and proprietors inter se (as provided in Section 25-A), and the decisions and orders of the settlement officers regarding interests and rights in such matters had the force of decree of court. Section 12 deals with inquiries into the landed rights and the Settlement Officer is required to inquire into and to decide and record "the rights of the Zamindars and other proprietors, the rights of the tenants or Raiyats, the rights of the Manjhls or other headmen as against both the proprietors and the tenants, and also any other landed rights to which by the law or custom of the country or, of any tribe, any person may have legal or equitable claim."
Section 13 deals with the form of record of rights, and Section 14 requires notice to be given about the preparation of the record of rights, calling upon the persons to put forth their claims, either in writing or by verbal application, and the Settlement Officer is required to inquire into, settle and record all rights in, or claims to, the lands of a village even though such claims or rights may not be urged by the parties interested. Section 24 deals with the publication of the record of rights, inviting objections within a period of six months from the date of such publication against any entry made therein. Under Section 25, the record of rights is finally published after the expiry of the period of six months and such record shall be conclusive proof of the rights and customs therein recorded, barring those cases where objections had been raised and were pending, either before the original or the appellate authorities. Under the original Section 26 of the Regulation, as enforced in 1872, the District Officers were authorised to take up land cases and pass provisional orders. The said section, which has been deleted by Amending Regulation III of 1908, may be usefully quoted:--
"26. Pending the completion of a settlement under this Regulation, the Officers of the Santhal Parganas appointed under Section 2, Act 37 of 1855, may, if the Lieutenant-Govern or shall so direct, take up and decide under this Regulation either on their own motion or at the request of the parties, any suit for rent or arrears of rent, or any claim for enhancement or abatement of rent, or any complaint of exaction or improper ouster from land or offices.
Decisions regarding rates of rent or the possession of land or offices passed by these officers under this section shall remain in force until such time as the record-of-rights for the village or villages to which such decision may refer shall be prepared. The said officers shall also have power to pass such provisional orders as they may deem required for the maintenance of peace and order in the Santhal Parganas on all matters referred to in Sections 5, 9, 10 and 12 to 24 of this Regulation; all such provisional orders shall have the force of a decision of Settlement Officers under these Regulations, until such time as the record-of-rights shall have been prepared or the matter shall have been decided by a Settlement Court."
12. After the preparation of the record of rights was completed in the District of Santhal Parganas, by the Santhal Parganas Settlement (Amendment) Regulation, 1908 (Regulation III of 1908), Section 27 was incorporated in Regulation III of 1872, prohibiting transfers by the Raiyats of their Raiyati holdings. Section 27 of Regulation III of 1872 may usefully be quoted:--
"27 (1). No transfer by a Raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded.
(2) No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.
(3) If at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of Sub-section (1) has taken place; he may, in his discretion, evict the transferee and cither restore the transferred land to the Raiyat or any heirs of the Raiyat who has transferred it, or resettle the land with another Raiyat according to the village custom for the disposal of an abandoned holding;
Provided--
(a) that the transferee whom it Is proposed to evict has not been in continuous cultivating possession for twelve years;
(b) that he is given an opportunity of showing cause against the order of eviction; and,
(c) that all proceedings of the Deputy Commissioner under this section shall be subject to control and revision by the Commissioner."
13. Then comes the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, which came in force on the 1st of November, 1949. This Act is supplemental to Regulation III of 1872 and has repealed some of its provisions and certain other Regulations with which we are not concerned. It has repealed Section 27 of the Regulation (already quoted above) and in lieu thereof enacted Section 20, which reads thus:--
"20. Transfer of Raiyat's rights--
(1) No transfer by a Raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, shall be valid, unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded:
Provided that a lease of Raiyati land in any sub-division for the purpose of the establishment or continuance of an excise shop thereon may be validly granted or renewed by a Raiyat, for a period not exceeding one year, with the previous written permission of the Deputy Commissioner:
Provided further that where gifts by a recorded Santhal Raiyat to a sister and daughter are permissible under the Santhal law, such Raiyat may, with the previous written permission of the Deputy Commissioner, validly make such a gift;
Provided also that an aboriginal Raiyat may, with the previous written permission of the Deputy Commissioner, make a grant in respect of his lands not exceeding one half of the area of his holding to his widowed mother or to his wife for her maintenance after his death.
(2) Notithstanding anything to the contrary contained in the record of rights no right of an aboriginal Raiyat in his holding or any portion thereof which is transferable shall be transferred in any manner to any one but a bona fide cultivating aboriginal Raiyat of the Pargana op Taluk or Tappa in which the holding is situated;
Provided that nothing in this sub-section shall apply to a transfer made by an aboriginal Raiyat of his right in his holding or portion thereof in favour of his Gardi Jamai or Ghar Jamaj.
(3) No transfer in contravention of Sub-section (1) or (2) shall be registered or shall be in any way recognised as valid by any Court, whether in exercise of Civil, criminal or revenue jurisdiction.
(4) No decree or order shall be passed by any Court or officer for the sale of the right of a Raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order, unless the right of the Raiyat to transfer has been recorded in the record of rights or provided in this Act and then only to the extent to which such right is so recorded or provided.
(5) If at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of Sub-section (1) or (2) has taken place he may in his discretion evict the transferee and either restore the transferred land to the Raiyat or any heirs of the Raiyat who has transferred it, or re-settle the land with another Raiyat according to the village custom for the disposal of an abandoned holding:
Provided that the transferee whom it is proposed to evict shall be given an opportunity of showing cause against the order of eviction."
Sub-section (5) of this section has been substituted by the Bihar Scheduled Area* Regulations, 1969 (Bihar Regulation I of 1969), by a new Sub-section (5), and the scope of the new sub-section is confined to cases of transfer in contravention of subsections (1) and (2) of Section 20 by members of the Scheduled Tribes only, as specified in Part III of the Constitution, and, not to Raiyats generally, and the new subsection will be referred to while considering the question whether title by adverse possession could be acquired under the Act.
14. A review of the aforesaid enactments will show that there was no general incidence of transferability of Raiyati holdings in the District of Santhal Pargahas. The Santhal Parganas Act, 1855, which constituted the district, made the old laws and regulations applicable to a limited extent, none of which made Raiyati holdings transferable. In Regulation III of 1872 original, Section 26 made provisions for dealing with "improper ouster from land," pending completion of survey operations. In course of survey, such of the lands which were specifically transferable by custom were recorded as such, from which also it is clear that there was no general custom of transferability of holdings. After survey operations were completed, Section 26, which outlived its utility, was substituted by Section 27, which prohibited transfer by legislation, that is to say, it put an end to any further growth of custom of transferability in case of non-transferable holdings, than those recorded as transferable by custom during the last survey. Even if a large number of invalid transfers were not disturbed, as relied upon by Mr. Sinha, that would not be a ground for holding that the lands were transferable in Santhal Parganas. It is, therefore, not necessary to refer to the decision in the case of 3 Pat LT 205 = (AIR 1922 Pat 114) (supra). So far as the prohibition against transfers after incorporation of Section 27 in Regulation III of 1872, in 1908, the matter stands concluded by the decision of the Supreme Court hi the case of Ram Kristo Mandal v. Dhan-kisto Mandal, AIR 1969 SC 204 that no incidence of transferability attached to lands of the Raiyats in Santhal Parganas and the lands were inalienable. The relevant portion from the said decision may usefully be quoted:--
"The language of Section 27 is clear and unambiguous. It prohibits any transfer of a holding by a Raiyat either by sale, gift, mortgage or lease or by any other-contract or agreement ............ Sub-section (2) of Section 27 in clear terms enjoins upon the courts not to recognise any transfer of such lands by sale, mortgage, lease, etc. or by or under any other agreement on contract, whatsoever.
Section 27 of Regulation III of 1872 was deleted by the Act of 1949, and, in its place Section 20 has been incorporated in the Act, as already stated, maintaining the provisions against transferability of Raiyati lands. It is thus apparent that there is no substance in the submission of Mr. Sinha that the Raiyati holdings were transferable in the District of Santhal Parganas, and as the restriction of transfcrability incorporated in the Act came in 1949, it became inoperative after the commencement of the Constitution of India. There was no incidence of transfcrability of the Raiyati holdings in Santhal Parganas on the date of the commencement of the Constitution, either because there was no right of transferability at any point of time in Santhal Parganas or even alternatively because Section 27 of the Regulation had made them non-transferable which section was replaced by Section 20 of the Act, in 1949, so as to offend against Article 19 (1) (f) of the Constitution, with effect from the 26th January, 1950. The relevant portion of the said Article reads thus:--
"(1) All citizens shall have the right-
xx xx
(f) to acquire, hold and dispose of property;"
Whether the right which has been extinguished was the right to hold the property or to dispose of the property, either under Section 27 of the Regulation or under Section 20 of the Act, the position is the same and Article 19 (1) (f) of the Constitution has not the effect of creating a right which was non-exislcnt on the date of the commencement of the Constitution, as laid down in the case of Director of Endowments, Hyderabad v. Akram Ali, AIR 1956 SC 60. A relevant portion from the said decision may usefully be quoted:--
"It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent 'in toto and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them: all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But, if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part."
15. It is not the contention of Mr. Sinha that the Act was not good when passed in 1949, but, according to the learned counsel, the invalidity arises after the commencement of the Constitution of India. He has relied on Article 13 (1) in aid of his submission that any law putting prohibition on right "to acquire, hold and dispose of property' guaranteed under Article 19 (1) (f) of the Constitution will be invalid and get eclipsed. Under Article 13 of the Constitution, pre-constitutional laws which were inconsistent with the fundamental rights enumerated in Part III of the Constitution have been rendered void to that extent. Article 13 (1) of the Constitution reads thus:--
"(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."
The Constitution having no retrospective effect, with respect to the point under consideration, it does not make a non-transferable right transferable. Therefore the restriction on transfer contained in Section 20, Sub-sections(1) and (2), of the Act is not ultra vires Article 19 (1) (f) of the Constitution. It may be stated that none of the applications before us' is by intending transferrors, that is to say by persons who wanted to transfer certain lands and felt handicapped because of the provisions contained in the Act. The grievance is by transferees or settlees. Ownership of property is a bundle of rights and transferability is one of such rights and it will be fallacious to confuse absence of one of the rights with the 'property' itself. If one of the rights is non est (sic) on the date of the commencement of the Constitution, that cannot be revived. It is only when the right was continuing and the prohibition was wrong that Article 19 (1) (f) of the Constitution will come in, as observed by the Supreme Court in the case of Gurudatta Sharma v. The State of Bihar, AIR 1961 SC 1684 at page 1697.
16. It will be convenient at this stage to dispose of another argument of Mr. Sinha that Section 20 (1) of the Act was in general terms and it prohibited transfer by all kinds of Raiyats. He conceded that the restriction may be reasonable within the meaning of Article 19 (5) of the Constitution in cases of Scheduled Tribes, but submitted that it could not be so in case of Raiyats in general and that the law in so far as it has been made lex loci in the District of Santhal Parganas prohibiting transfer in all cases is an unreasonable restriction and could not be justified under the said Article. He submitted that a large number of outsiders have somehow come to acquire lands in Santhal Parganas, which transfers have been recognised. To apply the law of non-transferability in those cases also could not be justified and those non-Scheduled Tribe Raiyats of Santhal Parganas could not be allowed to remain in the same state as they were in the last century. This argument of Mr. Sinha, though attractive, is without any substance and has got to be rejected in view of the decision of the Supreme Court reported in AIR 1969 SC 204 (supra), which has also referred to an earlier decision of the Supreme Court in the case of Jyotish Thakur v. Tarakant Jha, AIR 1963 SC 605. A relevant portion from the said decision reads thus:--
"The prohibition against transfer of Raiyati lands situate in Santhal Parganas has its roots in the peculiar way of life of Santhal Villages, which favour the emergence of a powerful village community with its special rights over all the lands of the village. This community of village Raiyata bas preferential and reversionary rights over, all lands in the village, whether cultivated or un-cultivated. There is also in the majority of the village of this district a Headman, who, in addition to performing certain village duties, collects rent from the Raiyats and pays it to the proprietor. One of his duties in his capacity as the Headman is to arrange for settlement of lands in his village, which may fall vacant and be available for settlement. All the Raiyats in the village are included in the Jama-bandi prepared for the village and it is the Headman's duty to settle the available land to one of the Jamabandi Raiyats. It is manifest that the interest of the village community as also of the Headman would suffer if the land, which as Raiyati land would be included in the Jamabandi, is allowed to be taken out of the total quantity of the Raiyati lands. If once these lands are allowed to lose their Raiyati character, it is certain, the village may find, in the course of a few years, the total stock of land available for settlement to resident Raiyats dwindling before their eyes. It was in this state of things that the alienation of a Raiyati holding in any form was interdicted by Government orders in 1887. These orders had the effect of checking the practice of open transfers. But transfers in disguised forms continued as is clear from a note of Mcpherson to the settlement report of the Santhal Parganas wherein he Warned against such disguised transfers. His note was accepted by Government and the result was the amendment of the Regulation by which Section 27 was inducted therein:"
The above decisions of the Supreme Court substantially support the counter-affidavits Sled on behalf of the State, to which reference has already been made. Even if Article 19 (1) (f) of the Constitution was attracted in such cases, there cannot be any doubt, on the basis of the decision of their Lordships of the Supreme Court, that the restriction on transfer was reasonable one and fully justified in the interest of the village community of Santhal Parganas and for the protection of the Scheduled Tribes residing there, as it will be they who will have preferential right of getting those lands in the event of any Jamabandi Rai-
yat, aboriginal or non-aboriginal, becoming extinct or abandoning any holding. The argument of Mr. Sinha, therefore, that Section 20 (1) of the Act was violative of Article 19 (1) (f) of the Constitution, inasmuch as this was made lex loci of Santhal Parganas and applied to non-Santhals, is with out substance.
17. This takes us to the consideration of the next question urged by Mr. Sinha that Section 42 of the Act is ultra vires Article 19 (1) (f) of the Constitution, as it imposes an unreasonable restriction, on the right of the petitioners to acquire and hold properties, in respect of which they have acquired title by adverse possession. The main plank of this argument is that the law of limitation was made applicable to Santhal Pargnnas by Regulation III of 1872 and was in force in that district and, by virtue of Section 28, read with Articles 142 and 143 of the Limitation Act (corresponding to Section 27 of the new Act) the transferee or settlce of land in Santhal Parganas under a transfer which is invalid under the Regulation and the Act, after being in possession for twelve years, will acquire good title and could not be evicted by the Deputy Commissioner under Section 42 of the Act. The Act, in so far as it authorises the Deputy Commissioner, under Section 42, to evict a transferee or settlee, at any time, even after a period of twelve years, adverse possession was invalid, as being in conflict with the law of limitation, a Central statute, as assent of the Governor-General was not obtained under Section 107 of the Government of India Act, 1935, to save it from repugnancy.
18. The learned Advocate-General, on the other hand, submitted that proviso (a) of sub-section (3) of Section 27 of Regulation III of 1872 impliedly excluded the applicability of Section 28, read with Articles 142 and 144 of the Limitation Act; and, Section 20 and proviso to Section 64, read with Section 69 (a) of the Act also, by necessary implication, excluded the applicability of those provisions of the Limitation Act. He submitted that the right to acquire by adverse possession is not a fundamental right, but a statutory right, created by the provisions of the Limitation Act. If a trespasser fails to prescribe title before the commencement of the Act, then he cannot acquire title for the possession thereof. If he had already acquired title before. 1949 Act, then sub-title will not be affected by the provision of the Act. He also submitted that in pith and substance, the Act is a legislation with respect to "land............ right in or over land......... transfer, alienation and devolution of agricultural land;" Within Entry 21 of List II of the Provincial Legislative List of the Government of India Act, 1935, as it is ancillary to the main Act and in pith and substance is a legislation under that Entry and it cannot be said to be a law under Entry 4 of the Concurrent List, so as to make it ultra vires, and, therefore, the law was a good law when made in 1949, even if it laid down that a transfer in contravention of the Act could be annulled at any time. These respective contentions need now be considered.
19. As already pointed out, Section 3 of Regulation III of 1872 made enactments mentioned in the Schedule applicable to the Santhal Parganas, and the Limitation Act is one of such enactments. The decisions of this Court, relied upon by Mr. Sinha, such as in the cases of Kala Devi v. Khelu Rai, AIR 1949 Pat 124, Kishun Barai v. Huro Pandey, AIR 1949 Pat 408, Kheyali Bhaiya v. Bisan Mahto, 1957 BL JR 820, and Thakur Hansada v. Raju Mian, 1961 BLJR 714, support the contention that the Limitation Act applied to the Santhal Paraganas and title by adverse possession could be acquired under Regulation III of 1872. It will suffice to refer to a passage from the earlier decision, i.e., AIR 1949 Pat 124:--
"It does not follow, however, that defendants 7 to 9 are still in the position of trespassers, for, by this very Regulation, the whole of the Limitation Act was made applicable to the Santhal Parganas, including the provision regarding prescriptive title. It has accordingly been rightly held by the Subordinate Judge that the defendants, having entered on the land as trespassers and having held it for a period of twelve years in open assertion of permanent tenancy rights therein, have now acquired the right asserted by these and cannot be ejected............"
The learned Advocate-General has challenged the correctness of the aforesaid decision and has placed reliance on proviso (a) to Sub-section (3) of Section 27 of the Regulation, for submitting that the application of Section 28, read with Articles 142 and 144 of the Limitation Act is excluded. Section 27 (3) of the Regulation, which has been quoted already, authorises the Deputy Commissioner to evict a transferee, who has come in possession in contravention of Sub-section (1) of that section, in his discretion. This power is subject to the exception provided in proviso (a) to that subsection, which reads thus:--
"Provided--
(a) that the transferee whom It is proposed to evict has not been in continuous cultivating possession for twelve years;" The argument of the learned Advocate-General is that if the Limitation Act were really to apply, then there was no necessity of incorporating this proviso, and this impliedly excludes the application of the Limitation Act. He has submitted that this proviso is really in the nature of an exception on the power of the Deputy Commissioner not to evict a particular class of transferee who has been in continuous cultivating possession for twelve years. It is difficult to accept this contention of the learned Advocate-General, inasmuch as under Section 3 of the Regulation the whole of the Limitation Act was made applicable to the Santhal Parganas and from proviso (a) to Sub-section (3) of Section 27, in such a situation, the exclusion of the applicability of Section 28, read with Articles 142 and 144 of the Limitation Act could not be inferred. No other provision of the Regulation has been relied upon by the learned Advocate-General, in support of his submission. The decisions of this Court, therefore, taking the view that the Limitation Act applied to the district and adverse title, under Regulation, could be acquired, have been correctly decided and those who had acquired good title under Regulation III of, 1872, could not be evicted.
20. Coming to the question whether title by adverse possession could be acquired after the 1949 Act came in, it will be useful to refer to the impugned provisions of the Act. Section 42 of the Act reads thus:--
"The Deputy Commissioner may, at any time, either of his own motion of on an application made to him, pass an order for ejectment of any person who has encroached upon, reclaimed, acquired or come into possession of agricultural land in contravention of the provisions of this Act or any law or anything having the force of law in the Santhal Parganas."
The other two sections, namely, Section 64 and 69, of the Act may also be quoted:--
"64. All applications made under this Act, for which no period of limitation is provided elsewhere in this Act, shall be made within one year from the date of the accruing of the cause of action.
Provided that there shall be no period of limitation for an application under Section 42."
"69. Notwithstanding anything contained in any law or anything having the force of law in the Santhal Parganas, no right shall accrue to any person in--
(a) land held or acquired in contravention of the provisions of Section 20, or,
(b) land acquired under the Land Acquisition Act, 1894, for the Government or for any local authority or for a railway company, while such land remains the property of the Government or of any local authority or of a railway company, or,
(c) land recorded or demarcated as belonging to the Government or to a local authority which is used for any public works, such as a road, canal or embankment, or is required for the repair or maintenance of the same while such land continues to be so used or required, or,
(d) a vacant holding retained by a village Headman, Mul Raiyat and members of their family, or a landlord, or,
(e) village Headman's official holding, grazing land, Jaherthan and burning and burial grounds."
Analysing the aforesaid provisions, it is manifest that Section 69 (a) has made it clear beyond doubt that notwithstanding anything contained in any law or anything having the force of law in the Santhal Parganas, no right shall accrue to any person in any land held or acquired in contravention of the provisions of Section 20 of the Act. Section 20 has already been quoted and it prohibits transfer, settlement or lease in any manner, unless the right to transfer is recorded in the record of rights, in respect of any Raiyati holding. Therefore, although the law of limitation has been made applicable by Section 3 of Regulation III of 1872, which provision has not been repealed by the Act, still Section 69 makes it clear beyond any shadow of doubt that no right will be acquired or accrued in contravention of Section 20 of the Act. The proviso in Section 64 that there will be no period of limitation for tiling an application under Section 42 of the Act also seems to achieve the same object. Therefore, the application of acquisition of title by adverse possession under Section 28, read with Articles 142 and 144, of the Limitation Act is explicitly excluded in the Act, as urged by the learned Advocate-General. Contravention of provisions of Sub-sections(1) and (2) of Section 20 will be a continuing wrong because of Section 69. Similar bar against accrual of any right in case of lands mentioned in Clauses (b), (c), (d) and (e) of Section 69, as quoted above, clearly points out that no right by adverse possession could be acquired by encroachment also on the lands mentioned. The bar contained in Section 69 (a) is comprehensive enough to include cases of encroachment as well, as a case of encroachment could not be put in higher pedestal than a case of an invalid transfer, the idea behind Section 69 being to prohibit accrual of adverse possession in those lands in Santhal Parganas. It may, however, be made clear that Sub-sections(1) and (2) of Section 20 of the Act are prospective, as conceded to by the Advocate-General and do not bar acquisition of title by adverse possession in respect of contravention of the Regulation, as distinct from the contravention of the Act.
21. The next question then arises, Whether these provisions are invalid, being in conflict with the law of limitation. Learned Advocate-General, however, urged that the scheme of the Act falls entirely under Item 21 of List II (Provincial List) of the Government of India Act, 1935, and, Section 42 of the Act is ancillary to the main provisions of the Act, and, therefore, in substance, the entire Act, in pith and substance, is a provision under List IT and cannot be said to be a law dealing with limitation under the concurrent list III of the Government of India Act. The relevant portion of Entry 21 of List II (Provincial List) of the Government of India Act, 1935, may usefully be quoted:--
"Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents, transfer, alienation and devolution of agricultural land; ..,......"
Law of Limitation and Civil Procedure Code are the enactments referred to in the Concurrent List III, besides others. These Lists, made in pursuance of Section 100 of the Government of India Act, which corresponds to Article 246 of the Constitution of India and Section 107, which corresponds to Article 254 of the Constitution, lay down that where a Provincial Law with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of any Federal or Indian Law, then assent of the Governor-General or His Majesty was essential for the law to prevail in the province. In the instant case, there is no dispute that the Act has not been assented to by the Governor-General or His Majesty, as required under Section 107 of the Government of India Act. 1935. A question arises, whether the Act is a legislation under Entry 21 of List II, in pith and substance, and, satisfies the pith and substance test, as laid down in the case of Prafulla Kumar Mukherjee v. Bank of Commerce, Ltd., Khulna, AIR 1947 PC 60 and in the case of Megh Raj v. Allah Rakhia, AIR 1947 PC 72, as urged by the learned Advocate-General.
22. Examining the Act from this point of view, it appears that the Act has been passed, as it has been considered expedient to amend and supplement certain laws relating to landlord and tenant in the Santal Parganas, as the preamble of the Act will show. This Act, undisputedly, is supplemental to Regulation 1IT of 1872, and has deleted Sections 27 and 28 of the Regulation, besides other laws, under Section 3, read with Schedule A of the Act. This Act consists of 9 Chapters. Chapter I deals with preliminaries and includes Section 3, mentioned above. Chapter II deals with Village Headmen, and Mul Raiyats and contains Sections 5 to 11. Chapter III deals with Raiyats, classes of Raiyats and their rights, and consists of Sections 12 to 26, and, includes Section 20, which has been quoted earlier, dealing with prohibition against transfer of Raiyati holdings and is one of the impugned provisions. Chapter IV deals with Settlement of waste lands and vacant holdings and consists of Sections 27 to 42, and the vires of the last Section of this Chapter, i.e., Section 42, has been challenged, which has already been quoted Chapter V deals with rent and ends with Section 52. Chapter VI has only one Section, i.e., Section 53, which deals with acquisition of land and has been held to be ultra vires by a Bench decision of this Court in the case Budhinath Mishra v. State of Bihar, AIR 1970 Pat 358, Chapter VII deals with judicial procedure and begins with Section 54. The last section of this Chapter, i.e., Section 63, deals with bar of suits and runs thus:--
"63. No suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, any order of the Deputy Commissioner in any application which is cognizable by the Deputy Commissioner under this Act and every such order shall, subject to the provisions of this Act relating to appeal and revision, be final:
Provided that nothing contained in this section shall bar the jurisdiction of a Civil Court in matters in which it had jurisdiction immediately before the commencement of this Act."
Chapter VITT deals with limitation and consists of Sections 64 to 66. Section 64, which provides that there shall be no period of limitation for an application under Section 42, has already been quoted. The last Chapter deals with miscellaneous provisions and consists of Sections 67 to 72. Sections 67 and 68 deal with penalties for contravention of the provisions of the Act, and service of notice on landlords, and Section 69, already quoted, bars acquisition of any right over lands acquired in contravention of Section 20, lands acquired under the Land Acquisition Act, Government or local authorities land, vacant lands of Headmen, Mul Raiyats or landlords and official holdings of the Village Headmen, grazing land, laherthan and burial or burning grounds. Section 70 deals with recovery of dues, Section 71 with power to make rules and Section 72 with savings of special enactments. A review of the provisions of the Act clearly shows that the Act completely falls within the above Entry 21 of List II and is a legislation with reference to that entry dealing with landlord tenant relations as well as the right of the tenant in land and prohibiting transfers, except as provided therein, and, further declaring that no right contrary to those provided in Section 69 of the Act will be allowed to accrue. Merely branching or trespassing in another field does not mean that it is a legislation on those topics. The power to legislate under Entry 21 of List II regarding land also includes all such powers as are ancillary to the main power, that is to say, barring accrual of any right therein. Therefore, the bar to acquisition of right over land, as laid down in Section 69, or the power to evict under Section 42, at any time, are ancillary to the main power of the provincial Legislature to legislate with regard to 'land' and 'rights in or over land', as laid down in Privy Council decisions relied upon by the learned Advocate-General. A similar question arose with regard to Bihar Land Reforms Act, 1950, with reference to vesting of Zamindari assets of incorporated Companies under the State of Bihar as offending against the provisions of the Companies Act, and statute under List I of the Constitution, which was rejected by this Court in the case of Janakinath Roy v. State of Bihar, AIR 1953 Pat 105, as that Act was held to be in pith and substance a legislation under the State List II. It is, therefore, manifest that Section 42 of the Act or its allied provisions cannot be said to be a legislation with regard to limitation, an item of the concurrent List, in the Government of India Act, 1935, so that it may be held to be bad in absence of assent of the Governor-General.
23. In support of his submission that the Limitation Act applies to the Santal Par-ganas, and its application was not excluded under the Act, Mr. Sinha relied upon the Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation I of 1969), which was assented to by the President on the 8th February, 1969, and which amended Article 65 of the Limitation Act by providing a longer period of 30 years' limitation in case of Scheduled Tribes instead of 12 years. The argument is that if title by adverse possession could not be acquired under the Limitation Act, in Santhal Parganas, which is a Scheduled Area, there was no meaning in providing, by amendment, a longer period of limitation for possessory suits by Santhals. He has also urged that this Regulation (I of 1969) has amended Section 20 (5) of the Act and from the third and the last proviso to the amended Sub-section (5), it will be apparent that adverse possession could be acquired in case of Scheduled Tribes after 30 years' possession and on parity after twelve years in case of non-Scheduled Tribes.
24. It will be relevant at this stage to refer to the Bihar Scheduled Areas Regulation, 1969 (Regulation I of 1969). Under Section 3 of this Regulation, the Court, in a suit or in a proceeding relating to transfer of land by members of a Scheduled Tribe, can ignore admissions made by the members of the Scheduled Tribe and the fact admitted has to be proved otherwise than by mere admission and the Deputy Commissioner, who is now impleaded as party in all suits for declaration of title or possession is also authorised to produce any evidence in rebuttal thereof. Section 4 deals with amendment of certain laws, in their application to the Scheduled Areas in the State of Bihar, and has appended a Schedule thereto amending different sections of Central and State Acts. Relevant for our consideration will be items 1, 2 and 6 of the Schedule appended to Section 4. Section 4, along with those relevant items of the Schedule thereof may usefully be quoted:--
"4. The enactments mentioned in the Schedule annexed hereto are amended in the manner and to the extent mentioned therein in their application to the Scheduled Areas of the State of Bihar.
SCHEDULE CENTRAL ACTS
1. Code of Civil Procedure (V of 1908).
Rule 3 of Order I. The following proviso shall be added, namely,--
'Provided that in suits for declaration of title or for possession relating to immovable properties of a member of the Scheduled Tribes as specified in Part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, the Deputy Commissioner concerned shall also be joined as a defendant.'
2. Limitation Act XXXVI of 1963--
Article 65 of the Schedule:
In the second column, the following words and figures shall be added at the end--
'but 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part JIT to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.' BENGAL ACT xx xx xx
6. The Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act XI of 1949): Section 20:
For Sub-section (6), the following subsection shall be substituted, namely--
'(5) If at any time it comes to the notice of the Deputy Commissioner that a transfer of land belonging to a Raiyat who is a member of the Scheduled Tribes, as specified in part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, has taken place hi contravention of Sub-section (1) or (2) or by any fraudulent method, 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 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 a 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 in 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 money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or 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 eqitable."
Some changes have also been made in Section 67 of the Act, which are not relevant for our purpose. Mr. Sinha has urged that if Limitation Act was not applicable, there was no necessity of providing for a larger period of limitation in cases of Scheduled Tribes. The above argument of Mr. Sinha overlooks the basic fact that the aforesaid Regulation I of 1969 was enacted to make provisions and to amend certain laws in their application to the Scheduled Areas in the State of Bihar, as the preamble shows. The effect of the amendment is that the limitation under Article 65 of the Limitation Act, where applicable, will be 30 years in case of Scheduled Tribes instead of 12 years, as in the case of others. From the above amendment no inference can be drawn that title by adverse possession could be acquired under the 1949 Act, in spite of the clear provisions of Section 69 of the said Act, which has already been held by me to be a valid piece of legislation.
25. Mr. Sinha has urged that under the third proviso to the amended Sub-section (5) of Section 20, acquisition of adverse title under the Act was clearly provided for in case of Scheduled Tribes, after adverse possession for 30 years, and it supported his argument that adverse title could be acquired in case of non-Scheduled Tribes also after the expiry of twelve years adverse possession. To understand the true import of the provisions of Sub-section (5) of Section 20, as amended, it would be relevant to analyse the scope thereof. It may be recalled that the unamendcd Sub-section (5) applied to cases of transfer in contravention of subsections (1) and (2) of Section 20, in all cases, that is to say, the Scheduled Tribes as well as the non-Scheduled Tribes. The amendment has confined its operation to cases of transfer by Scheduled Tribes only, in contravention of Sub-sections(1) and (2), also cover cases of transfer of land by Scheduled Tribes 'by any fraudulent method'. In that respect, it has enlarged the operative field of Sub-section (5) of Section 20, in respect of Scheduled Tribes. The first proviso, in nut shell, lays down that where a transferee has been in posses ion for less than 30 years and he has constructed structure on the land, it will be the option of the transferor to pay for the value of the structure in case of order of eviction, in the first instance, and, in default thereof, the transferee would be entitled to remove the structure. The second proviso, which deals with substantial structures, provides that the transfer will not be invalidated if the transferee makes available to the transferor an alternative holding in vicinity of transferred land or pays adequate compensation for rehabilitation of the transferor, as determined by the Deputy Commissioner. The third and the last proviso lays down that if the Deputy Commissioner is satisfied that the transferee has acquired title by adverse possession and that the transferor's land should be restored, the Deputy Commissioner will determine the amount and will order restoration on the transferor's depositing the amount for which the land was transferred or its market value, as the case may be, together with compensation for the value of the structure on the land, as deemed fair and equitable by the Deputy Commissioner. This proviso has to be understood in the context that power has been given under the amended Sub-section (5) to restore, possession not only in the case of contravention of Sub-sections(1) and (2), but in case of transfer by any fraudulent method also of the lands of the Scheduled Tribes. Since the scope of this provision has been widened, no argument can be sustained that acquisition of title by adverse possession was envisaged under the last proviso. This may very well relate to cases which are not covered by contravention of Sub-sections(1) and (2) of Section 20, and protected under Section 69 (a) of the Act. It will be relevant at this stage to mention that Mr. Sinha has also advanced a contradictory argument in relation to this last proviso that it is ultra Vires Articles 19 (1) (f) and 31 of the Constitution, which will be dealt with while considering the question of similar argument regarding Section 42 of the Act.
26. The right to acquire title by adverse possession is a creation of the Limitation Act. Section 28 of the old Limitation Act corresponds to Section 27 of the new Limitation Act and it read thus:--
"At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." Articles 142 and 144 of the old Limitation Act corresponded to Article 64 and 65 of the new Act and prescribed a period of limitation for suit for possession to be filed within 12 years of dispossession. Section 3 of the said Act lays down that a suit or appeal etc filed beyond the period of limitation shall be dismissed by the Court, even if no de-fence on account of limitation has been taken. It is thus apparent that the right to acquire title by adverse possession is a statutory right under the Limitation Act and not a common law right or a fundamental right guaranteed under Part III of the Constitution, for the contravention of which Article 19 (1) (f) could be attracted which would make the provisions of the Act invalid. This view finds support from the decision of the Supreme Court in the case of Jamuna Prasad Mukhariya v. Lachhi Ram 1955 SCR 608 = (AIR 1954 SC 686). In that case, the provisions of Sections 123 (5) and 124 (5) of the Representation of the People Act, 1951, under which the publication of false allegation at the election and appeal for votes on caste lines were declared to be major corrupt practices, invalidating an election. Those provisions were challenged as infringing the freedom of speech guaranteed by the Constitution under Article 19 (1) (a). This contention was repelled by the Supreme Court and a portion of the judgment may usefully be quoted:--
"The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statutes. The appellants have no fundamental right to be elected members of Parliament. Tf they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned Sections do not stop them. We hold that these sections are intra vires."
As already mentioned, the Limitation Act is operative in the Santal Parganas, but its application in so far as acquisition of title by adverse possession is concerned, has been abrogated to acquisition of title in regard to Raiyati lands and some other kinds of lands as mentioned in Section 69 of the impugned Act, which the Bihar Legislature was competent to enact under the Provincial List II, while making law in regard to 'Land' and 'right in or over land'.
27. Mr. Sinha has also urged that Section 42 of the Act is discriminatory, inasmuch as if action for election is taken before a Civil Court, there will be a defence that the suit is barred, if brought after twelve years, in case of non-Scheduled Tribe, or 30 years, in case of Scheduled Tribes, as under amended Article 65 of the Limitation Act, by Regulation I of 1969, but, there will be no defence, if action is taken before the Deputy Commissioner, under Section 42 of the Act, for eviction. The position, therefore, comes to this that whereas the suit will fail before the Civil Court, if such a defence is sustained, but if the plaintiff will go before the Revenue Court, i.e., the Deputy Commissioner, he will get the desired relief. Therefore, this was a harsher remedy and Section 42 was hit by Article 14 of the Constitution, as it was a denial of "equality before law or equal protection of laws." He also urged that under Section 42 of the Act, the Deputy Commissioner may choose to interfere in one case and may not choose to interfere in another. This is discriminatory between a citizen and citizen. He has also urged that the true scope of the power of the Deputy Commissioner under Section 42 is administrative as laid down in the case of 1957 BLJR 820. That is to say, he can exercise those powers where eviction is sought for within twelve years of wrongful possession and the question of title does not fall for consideration, which question can only be decided, in a suit, by a Civil Court.
28. Learned Advocate-General, on the other hand, contended that where in a statute right and remedy both are mentioned, a suit is barred and the only remedy available under the Act was under Section 42 for ejectment of a person in unauthorised possession of agricultural land. He referred to Section 63 of the Act, in support of his submission that no suit shall be entertained in any court to vary, modify or set aside, either directly or indirectly, any order of the Deputy Commissioner in an application, which is cognizable by the Deputy Commissioner and any order on appeal or revision shall be final. Learned Advocate-General also relied upon certain decisions in support of his submission, which need not be referred to as he rightly, in view of the decision of the Supreme Court in the case of the Northern India Caterers (P) Ltd. v. The State of Punjab, AIR 1967 SC 1581 abandoned his submission that the jurisdiction of the Civil Court was barred under the Act and the only forum for ejectment of an unauthorised occupant was before the Deputy Commissioner under Section 42 of the Act. In the case of Joytish Thakur, AIR 1963 SC 605, already referred to, also an argument was advanced that under the Regulation, under Section 27 (3), the jurisdiction of the Civil Court was barred and the only remedy available was under Section 27 (3) of the Regulation, which was negatived by their Lordships of the Supreme Court. The following passage from the said decision may usefully be quoted:--
"As a last resort, Mr. Jha argued that in any case the Civil Court has no jurisdiction in the matter and the only relief that can be given when an invalid transfer of Raiyati interest takes place is under Section 27 (3) of the Regulation. This sub-section of Section 27 gives a Deputy Commissioner of the District the right to evict the transferee and either restore the transferred land to the Raiyat or any of his heirs or to re-settle the land with another Raiyat according to the village custom, if at any time it comes to his notice that a transfer in contravention of Sub-section (1) of Section 27 had taken place. We can find no reason to think, however, that the provision of this relief was intended to be exhaustive and to be a bar against any other reliefs in the courts. Indeed, the provisions of Sub-section (2) of Section 27 that no transfer in contravention of Sub-section (1) shall be in any way recognised as valid by any Court, make it obligatory for the Civil Court when a dispute arises as regards the title to lands to ignore transfers made in contravention of Section 27 (1). For the proper exercise of that obligation it is necessary for the Court to decide whether in fact the transfer on the basis of which one of the parties to the litigation based his claim was really made in contravention of Section 27 (1). If the Court is satisfied that there was such contravention, the Court must necessarily proceed to dispose of the case on the basis that no title accrued to the transferee by such transfer. The objection that Section 27 (3) stands in the way of the plaintiff's getting relief in the Civil Court cannot, therefore, succeed."
Section 20 (3) of the Act is also in identical terms as Sub-section (2) of Section 27 of Regulation III of 1872, on which due emphasis was given by their Lordships of the Supreme Court for holding that jurisdiction of the Civil Court was not barred. The Learned Advocate-General has also urged that the remedy under the Act was not harsher, inasmuch as, even if a party goes to a Civil Court, the law to be applied before the Civil Court will be the provisions of the Act itself, which, under Section 69 bars the acquisition of any right in all classes of lands, mentioned in that section, which has already been dealt with. There is substance in this submission of the learned Advocate-General, which gets some support from the decision of the Supreme Court, quoted above, that the Civil Court also is not to recognise transfers in contravention of Section 20 of the Act and also to take note of Section 69, which bars acquisition of all rights. There is no substance in the submission of the learned Counsel for the petitioners that the procedure to be followed before the Deputy Commissioner would be harsher. Under Section 54 of the Act the State Government is required to make rules, prescribing the procedure to be followed in proceedings before the Deputy Commissioner or before the appellate or revisional Court. There is no dispute that the Santhal Civil Rules are in force from January, 1946, and have been made applicable under this section to proceedings under the Act, and elaborate provisions are there in those rules for taking evidence, filing documents, hearing the parties and disposal of applications under the Act, almost on the same lines, as contained in the Code of Civil Procedure. Therefore, there is adequate provision for judicial determination of the questions before the Deputy Commissioner in proceedings be-fore him. Under Sections 57 to 60 of the Act, there is provision for appeal, second appeal, revision and review against the orders in proceedings before the Deputy Commissioner. Therefore, the proceedings under the Act cannot be said to be onerous or harsh to the litigants. On the other hand, the proceedings before the Deputy Commissioner may be quicker ones and thus eliminate the delay in dispensation of justice, which would be in conformity with the cardinal principle of justice that justice delayed is justice denied. There is no substance in the submission of Mr. Sinha also that the Deputy Commissioner may take action in one case and may not take action in similar other cases, under Section 42 of the Act, thus leading to discrimination between citizen and citizen in matters of equality before law. It is true that in Section 42 the language used is that the Deputy Commissioner 'may' eject any person in unlawful possession of land in contravention of the provisions of the Act or any law or anything having the force of law in the District of Santal Parganas. That the word 'may' might mean 'must' in the scheme and background of certain legislation has not been disputed by Mr. Sinha. The use of the expression 'may' or 'shall' in a statute is not decisive. In such a case the legislative intent has to be determined. These expressions, having regard to the context, have varying significance. Judged in the background and scheme of the various provisions of the Act, which prohibit transfer and completely bar acquisition of any right over land, the expression 'may' used in Section 42 means 'must' is clear beyond doubt. The Deputy Commissioner, whenever he comes across cases of wrongful possession of land held in contravention of the provisions of the Act or any other law or "anything having the force of law", is bound to order for eviction, as envisaged in the Act. Giving any other meaning will amount to giving power to the Deputy Commissioner to ignore the mandatory provisions of the Act, which must not have been the intention of the Legislature. The view I have taken gains support from the following passage from the Craies Statute Law, Sixth Edition at page 285:--
"It is, however, a well-recognised canon of construction, as Lord Cairns said in Julius v. Bishop of Oxford, (1880) 5 AC 214 that 'where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised.' And Lord Blakburn said: The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.'........."
The above view also gains support from the decision of the Supreme Court in the case of State of Uttar Pradesh v. Jogendra Singh, AIR 1963 SC 1618, a passage from which may usefully be reproduced:--
"The question for our decision is whether like the word 'may' in Rule 4 (1) which confers the discretion on the Governor, the word 'may in Sub-rule (2) confers the discretion on him, or does the word 'may' in Sub-rule (2) really mean 'shall' or 'must? There is no doubt that the word 'may' generally does not mean 'must or 'shall. But it is well-settled that the word 'may is capable of meaning 'must or 'shall in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word 'may* out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed." To the same effect is another decision of the Supreme Court in the case of Sardar Govind Rao v. State of Madhya Pradesh, AIR 1965 SC 1222, wherein their Lordships observed as follows:--
"The word 'may' is often read as 'shall' or 'must, when there is something in the nature of the thing to be done which makes it the duty of the person on whom the power is conferred to exercise the power."
29. It is, therefore, manifest that guidance is not lacking for the exercise of the powers under Section 42 of the Act, and, as a matter of fact, it is well provided by the very language of the section, in the background of the scheme and the purpose of the Act. It also cannot be disputed that] the Deputy Commissioner has to act judiciously by the very nature of the grant of power under Section 42, an elaborate provision for exercise thereof has been made in the Act and the Santal Civil Rules. A remedy for correcting the mistakes, if any, in exercise of the powers, is also provided by appeal, revision or review. The power being a quasi-judicial one, is to be exercised according to the rights of the parties, and, even if it has been wrongly exercised, Article 14 of the Constitution does not apply, as a right or wrong decision cannot be a ground of infringement of Article 14 of the Constitution. If a wrong decision is given by the Deputy Commissioner, the parties aggrieved have adequate remedy by getting it corrected by way of appeal, revision or review, as the decisions of the Supreme Court in the cases of S. S. M. Amirabbas v. The State of Madhya Bharat, AIR 1960 SC 768 and Parbhani Transport Co-operative Society Ltd. v. R. T. A., Aurangabad, AIR 1960 SC 801 have firmly laid down.
30. As for the decision in the case of 1957 BLJR 820, relied upon by Mr. Sinha, some suits were filed in the year 1952, challenging the order of eviction passed by the Deputy Commissioner against the plaintiff of those suits as null and void under Section 20 (5) of the Act. The plaintiffs' claim in those suits was that Kurfa settlement in their favour was invalid under Section 20 of the Act and their possession was adverse since the inception, and that they acquired title by adverse possession by remaining in possession for over twelve years. One of the defence taken in the suit was that the Civil Court had no jurisdiction to entertain a suit against an order of the Deputy Commissioner passed in exercise of powers under Section 27 (3) of Regulation III of 1872, or, under Section 20 (5) of the Act (unamended), and, ordering eviction. These provisions have already been quoted. Relying upon a Bench decision of this Court in the case of AIR 1949 Pat 124, Kanhaiya Singh, J., held that title by adverse possession could be acquired under the Regulation and that a suit for declaration that the order of the Deputy Commissioner under Section 27 (3) of the Regulation was maintainable on the ground of lack of jurisdiction. Allowing the appeal, his Lordship held as follows:--
"Now the material question for consideration is: has the Deputy Commissioner jurisdiction under Sub-section (5) of Section 20 of the Act to order eviction of a person who has (been) acquired perfected permanent tenancy right by prescription. The question admits of no doubt whatsoever. In my opinion, such cases do not fall under the provisions of Sub-section (3) of Section 27 of the Regulation or Sub-section (5) of Section 20 of the Act and the Deputy Commissioner has no jurisdiction to order eviction. On a proper construction of the aforesaid provisions, the position seems to be clear that the Deputy Commissioner has power to order eviction only when the possession continues to be unlawful and the title is inchoate. Where, however, the possession, though under an invalid title, has ripened into a perfected title by efflux of time, the powers of the Deputy Commissioner are at an end. His powers, under the aforesaid sections, are limited only to the consideration of possession and do not include powers to decide complicated questions of title. Where the possession is illegal because of the transfer being invalid and there is no question of acquisition of title by adverse possession, the Deputy Commissioner has power to order eviction, irrespective of the length of possession, even in the cases-where the transferee is in possession for more than twelve_ years under Section 20 of the Act,_ though under the Regulation he had no power to order eviction where the transferee_has been in continuous cultivating possession for twelve years or more. His powers are more or less administrative in nature intended to secure to the tenants of District of Santal Parganas their occupancy rights in the land and to regulate possession. He has no jurisdiction to decide the question of title by whatsoever means acquired. The orders of the Deputy Commissioner were, therefore, without jurisdiction and null and void. If the order is ultra vires of the Deputy Commissioner, Section 63 of the Act affords no protection. Where the order of eviction falls strictly under Sub-section (5) of Section 20 of the Act, then by virtue of the provisions of Section 63, this order cannot be questioned in a Civil Court. No suit lies purely for the avoidance of the said order. If, on the other hand, his order is in excess of his jurisdiction, it is indisputable that the Civil Court has jurisdiction to interfere."
All that the aforesaid case laid down is that title by adverse possession could be acquired under Regulation III of 1872, and the Deputy Commissioner has power only to order eviction, where a trespasser has not perfected title by adverse possession. It was in those context that it has been laid down by the learned Single Judge that the power of the Deputy Commissioner is administrative in nature. On a review of the provisions mentioned above, it is apparent that the power under Section 27 (3) of Regulation III of 1872, or under the unamended Section 20 (5) of the Act, is quasi-judicial power and not administrative power. The Deputy Commissioner had to issue notice to the parties, then to take evidence and then judicially to determine the dispute between the parties. Such power cannot be said to be administrative power, it is quasi-judicial power, subject to appeal and revision. It also laid down that if the Deputy Commissioner ordered eviction of those who have acquired title by a adverse possession under the Regulation, he acted in excess of jurisdiction under Section 27 (3) of the Regulation, or, for the matter of that, under Section 20 (5) of the Act, after repeal of Section 27 (3) of the Regulation. It is not necessary here to decide upon the correctness of the above decision. Suffice it to say, as I have also come to the conclusion, that title by adverse possession would be acquired by trespassers during the period of Regulation III of 1872, and such persons are not liable to eviction. The portion of the observations in the above quoted passage, underlined by me, on the other hand, supports the view I have taken that no adverse possession can be acquired by being in possession for more than twelve years in contravention of Section 20 of the Act, which goes against the submissions of Mr. Sinha. It is, therefore, apparent that the above decision also does not support the contention that the power of the Deputy Commissioner under Section 42 of the Act is an administrative power.
31. Mr. Sinha has also urged that Section 42 of the Act was ex-propriatory, inasmuch as, it provided for taking away the property from a transferee and giving it to the transferor without payment of com pensation, and relied upon the decision in the case of K.K. Kochuni v. The States of Madras and Kerala, AIR I960 SC 1080. This submission of Mr. Sinha is based on the assumption that title by adverse possession would be acquired under the Act in case where transfer was in contravention of Section 20 (1) and (2) of the Act. I have already found that title by adverse possession could not be acquired under the Act by a transferee, in view of clear bar to acquisition of any such title under Section 69 of the Act. Therefore, restoring back the property from the unlawful possession of a transferee, who could not acquire any title from such invalid transfer, in spite of his long possession, to the transferor, whose title, at no point of time, was extinguished, will not come under the mischief of Article 31 of the Constitution. It only meant restoring possession of the property to the original and rightful owner. As to the decision relied upon by the learned Counsel, AIR 1960 SC 1030, it has no application in the instant case. In that case, in the guise of removing certain doubts in the Madras Marumakhathayam Act, 1932, in regard to Asthanam property, in the Madras Marumakhathayam (Removal of Doubts) Act, 1955, what was really done was to convert Asthanam properties, in which succession is to a single senior member, into tarwad properties, that is to say, joint family properties, with retrospective effect. It was in those contexts that the amending Act had been declared to be invalid. The following observations from the said decision may usefully be quoted:--
"Therefore, the three tests laid down by the impugned Act to enable the drawing of the statutory fiction are not only not germane but extraneous to the object sought to be achieved.
What is more, the impugned Act is made retrospective so as to make the Sthanee liable to arrears of maintenance and past profits. The contention that the impugned Act is nothing more than a re-adjustment of rights inter se between the members of the tarwad and the sthanee is without substance, for, before the Act, except ties of blood and a right to succeed in a particular contingency the members of the tarwad had no interest in praesenti in the sthanam property nor vice versa. The impugned Act is only a Legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with unreasonableness. In short, the impugned Act is expropriatory in character and is directly hit by Article 19 (1) (f) and is not saved by clause (5) of Article 19."
32. Mr. Sinha argued that the third proviso to the amended Sub-section (5) of Section 20 of the Act is ultra vires Articles 19 (1) (f) and 31 of the Constitution, as it does away with the right to hold and possess properties, in respect of which a person has acquired title by adverse possession; secondly, that no guideline has been given for determining the compensation payable to a transferee; and, thirdly, that the compensation payable according to the price mentioned in the deed of transfer, after thirty years, is unreasonable one. These are the three grounds on which he has attacked the vires of the third proviso.
33. As already mentioned, the proviso is only applicable to Scheduled Tribes, who are a well recognised section of the community, which need to be protected, as discussed already elsewhere in the judgment. The law cannot be said to be unreasonable, simply because it provides for re-transference of the properties also in cases where adverse possession has been acquired. It may be emphasised that the power is only exercisable where there is either contravention of Sub-sections(1) and (2) of Section 20 of the Act or the property has been obtained by "any fraudulent method." Unlike the Act, as already mentioned, Regulation I of 1969 has been assented to by the President. Therefore, the question of there being any repugnancy with the Limitation Act also does not arise. The argument of Mr. Sinha that the provision is arbitrary and there is no guideline for payment of compensation has no force, inasmuch as, in case of voluntary transfer, the amount for which the land has been transferred has been fixed to be the guideline and compensation for improvements effected on the land has been provided for. In other cases, the market value of the land has been taken to be the amount for which the land should be restored or re-settled. The submission of Mr. Sinha that the order for payment of money compensation as mentioned in the deed of transfer is unreasonable one, has also no substance, inasmuch as the amount for which the parties agreed for transfer of the land can by no means be said to be an unreasonable amount. Besides that, as already indicated, compensation has been provided for the improvements effected on the land after the date of the transfer. It may be incidentally mentioned that the amount mentioned in the transfer deed becomes a fair measure of compensation payable for the land, inasmuch as the transferee, apart from getting the price paid for the land, has enjoyed the usufructs or benefits out of the land for all the number of years he has been in possession, without being called upon to account for the same. There being no merit in any of the contentions of Mr. Sinha, on which the validity of the last proviso has been challenged, it is not necessary to consider the counter-arguments advanced by the learned Advocate-General that Regulation I of 1969 is a protected piece of legislation under Article 31-A of the Constitution and could not be held to be void on the ground that it takes away or abridges any of the fundamental rights guaranteed under the Constitution.
34. From the above discussions, it Is apparent that the impugned provisions of the Act are not ultra vires of the Constitution on the different grounds urged by Mr. Sinha. Under the Act, no title by adverse possession could be acquired, in those kinds of land as are enumerated in Section 69.
35. A review of these provisions Would show that Section 27 (1) of Regulation III of 1872 prohibited transfers, unless the right to transfer was recorded in the record of rights. Section 20 (1) of the Act, which replaces Section 27 of the Regulation, included within its fold the case of transfer by 'will' also. Section 27 (3) of the Regulation was substituted by Section 20 (5) (Old) of the Act, which empowered the Deputy Commissioner to evict a person who has come in possession of land in contravention of Sub-sections(1) and (2) of Section 20 of the Act, and Section 27 of the Regulation, when such invalid transfer came to his notice, Section 42 of the Act is more comprehensive and lays down that the Deputy Commissioner, cither on his own motion, or on an application made to him, can pass an order to evict any person who has, as already pointed out, "encroached upon, reclaimed acquired or come into possession of agricultural land in contravention of the provisions of this Act or any law or anything having the force of law in the Santal Parganas". It is thus obvious that it covers cases of encroachment also and provides for eviction at any time of those having come in possession in contravention of the provisions of the Act or any other law or any provision having the force of law in the Santal Parganas. As already pointed out, the learned Advocate-General has conceded that if any person has been in cultivating possession of land for more than twelve years, under Regulation III of 1872, he will not be liable to be evicted under Section 42 of the Act. He has, with his usual fairness, also rightly conceded that Sub-sections(1) and (2) of Section 20 of the Act have no retrospective operation and that the provisions for evicting a person who has come in possession of land in contravention of Section 27 (1) of Regulation III of 1872, after the repeal of that section, were Section 20 (5) (un-amended) and Section 42 of the Act, and that the bar to acquisition of any right contained in Section 69 of the Act is not available to cases of infraction of Section 27 (1) of the Regulation. The Act being supplemental to the Regulation, the infraction of the Regulation could be dealt with under the Act, if the transferee has not acquired title by adverse possession.
36. From the aforesaid discussions, [ have arrived at the following conclusions:--
(i) That there is no incidence of trans-ferability of Raiyati holdings in Santal Parganas.
(ii) That Section 20 of the Act is not (ultra vires on the ground of its being vio-lative of the fundamental rights guaranteed under the Constitution.
(iii) That Section 42 of the Act is a legislation in respect of Entry No. 21 of List II -- State List, of the Seventh Schedule to the Constitution, and is not violative of being repugnant to the provisions of the Limitation Act, Central Legislation, dealing with acquisition of right by adverse possession.
(iv) That the Limitation Act was applied to the District of Santal Parganas under Regulation III of 1872, and adverse possession could be acquired under an invalid transfer, in contravention of Section 27 (1) of the Regulation. Those, who did not acquire title by adverse possession under Regulation III of 1872, could be evicted under the old Section 20 (5) or Section 42 of the Act, even after the repeal of Section 27 (3) of the Regulation, as the Act Was supplemental to the Regulation.
(v) That Section 20 of the Act was prospective and that there could not be acquisition of title by adverse possession in case of transfer or settlement etc., in contravention of Section 20 (1) and (2) of the Act.
(vi) That Section 42 of the Act is a valid piece of legislation.
(vii) That Section 20 (5) of the Act, as amended, is a valid piece of legislation and is not ultra vires the Constitution on the grounds urged by Mr. Sinha.
37. Having disposed of the legal .questions, the merits of the writ applications now remain to be considered and I propose to consider them separately.
C. W. J. G No. 1573 of 197038. The petitioners, who are father and son, have challenged in this writ application, an order of the Sub-divisional Officer, Jamtara, dated the 27th June, 1970 Can-ncxure '6'), ordering eviction of the petitioners from portions of Plots Nos. 2572 and 2579, measuring 0.01 and 0.03 acre, respectively appertaining to AKJ No. 54 of Mouza Mihijam. It appears that on the 18th July, 1969, Respondent No. 2, Badri Mistri, filed an application before the Sub-Divisional Officer, Jamtara, for eviction of Petitioner No. 1 from the aforesaid two plots. It is admitted position in the case that in Land Acquisition Case No. 72 of 1963-64, disposed of on the 3rd January, 1964, Petitioner No. 1 acquired 0.10 acre of land out of four plots, including plots Nos. 2572, 2579 and 2573 and 2578. We are not concerned with the last two plots in this case. It was alleged in that application by Badri Mistri that Petitioner No. 1 illegally occupied 0.05 acre more than the lands acquired by him in the aforesaid land acquisition proceedings, out of the first two plots, namely, plots Nos. 2572 and 2579, and, was, therefore, liable to be evicted. Petitioner No. 1 filed a show-cause and challenged the measurement of the Amin, who found the petitioner to be- in possession over 0.01 acre in excess of what he had acquired in the land acquisition proceeding out of Plot No. 2572 and 0.03 acre in excess of what he had acquired in the land acquisition proceeding out of Plot No. 2579. His case was that 0.03 acre of Plot No. 2579 was coming in possession of Petitioner No. 2 (son of Petitioner No. 1) for the last over 20 years and he had constructed a house over the same, and the authorities finding his possession, in P. T. Case No. 15 of 1964-65, settled the same with Petitioner No. 2, by their order dated the 24th June, 1965, who has been mutated and granted receipts. He filed those documents in support of his claim.
39. Mr. J.C. Sinha, on behalf of the petitioners, has urged that the question of possession has not been investigated in this case and on an erroneous view, eviction has been ordered by the learned Sub-divisional Officer. He, however, did not press the case of the petitioners' against eviction from 0.01 acre of Plot No. 2572, as his clients do not claim to have come in possession of the said area earlier than the period when they acquired the land in land acquisition case No. 72 of 1963-64. We are, therefore, left with the question of eviction from 0.03 acre of Plot No. 2579 only. In the show-cause filed by Petitioner No. 1 it is alleged that Petitioner No. 2, his son, was in possession for over twenty years. In view of the fact that the legal position was not settled in this regard, necessary facts have not been properly investigated, as to since when the petitioners or petitioner No. 2 came in possession of the disputed area of Plot No. 2579, that is to say, whether they came in possession during the period of Regulation III of 1872, or during the period when the Act was in force. Although there is no clear averment on behalf of the petitioners, either in the show cause filed before the learned Sub-divisional Officer, or in the writ application, that they came in possession before the Act came in operation. If the learned Sub-divisional Officer comes to the conclusion that the petitioners or any of them did not come in possession of the encroached portion prior to the enforcement of the Act, then, as laid down, above, no adverse possession could be acquired by them. The order of the learned Sub-divisional Officer, in respect of eviction from 0.03 acre of Plot No. 2579 is, therefore, quashed and he is directed to reconsider the question with regard to the aforesaid plot, in presence of Petitioner No. 2, who was not made a party in the eviction proceeding. It is, however, made clear that his order with regard to the other plots is not touched and will stand.
C. W. I. C. No. 1793 of 197040. The three petitioners in this writ application have prayed for quashing the order of the Sub-divisional Officer, Jamtara, dated the 30th September, 1970 (Annexure 3'), by which he has ordered their eviction from certain plots of land appertaining to AKJ Nos. 7 and 8 situated in village Sawal-pur, which was recorded in the name of Thakur Mahuli. The said order was passed on an application filed by Respondents 2 to 5, claiming to be grand-sons and great-grand son of the recorded tenant.
41. It is averred in the writ application that Plot No. 125 was taken by Petitioner No. 1 in Kurfa Settlement in 1938 from the recorded tenant. He reclaimed the plot, made it a Dhani land, and since then he is in possession thereof. It has further been averred that Respondents 2 to 5 and father of Respondent No. 5, instituted Title Suit No. 9 of 1968 in respect of this land before the Sub-Deputy Collector, which was compromised and the title of the PetitioneiJ No. 1 with regard to this land was accepted. Plot Nos. 269 and 307 are being claimed by Petitioner No. 2 on the basis of a settlement made in 1355 BS (1948-49 A. D.) from Jugal, father of Respondent No. 5, Hemlal, father of Respondents ,Nos. 2 and 3, and Shyamlal, Respondent No. 4. It is averred that these three persons instituted a title suit against Petitioner No. 2 before the Subordinate Judge, which was compromised and the title of the said petitioner was recognised and accepted. Petition No. 3 claimed Plot Nos. 283 and 284, on the basis of settlement about 20 years back and a title suit filed by the heirs of the recorded tenant, including Respondents Nos. 2 to 5 was compromised and the petitioner's title was accepted. On the above basis, it is averred that the petitioners had acquired title by adverse possession and were not liable to be ejected.
42. A counter-affidavit has been filed on behalf of Respondents 2 to 5, alleging that they are simple, illiterate aboriginals and the petitioners who are Mahajans, used to advance loans to the family of the respondents and used to get their thumb marks on Sada papers, which they might have converted into documents. They denied any settlement or transfer in favour of the petitioners or having filed any suit or having compromised the same.
43. On a perusal of the order of the learned Sub-divisional Officer it appears that the question whether the story set up by these petitioners of their having taken settlement and their having come in possession of the lands in question prior to the coming into force of the Act, that is to say, when Section 27 (1) of Regulation III of 1872 was in force, and, thereafter their having been adversely in possession for more than twelve years has not been property gone into, which becomes necessary, in view of the fact that I have held that adverse possession could be acquired in case of invalid transfer or settlement during the period of Regulation III of 1872, and that prior to the enforcement of the Act, a person having come in possession in contravention of Section 27 (1) of the Regulation could acquire title by adverse possession. If the learned Sub-Divisional Officer comes to the conclusion that these petitioners did not take settlement or did not come in possession prior to the enforcement of the Act, then, as laid down above, no adverse possession could be acquired by these settlees, as accrual of such right was barred under the Act. Moreover, the learned Sub-Divisional Officer has not considered the question whether the petitioners are members of a Scheduled Tribe, as claimed by them. In case they are, the question of applicability of Section 20 (2) of the Act will also have to be considered. The order contained in Annexure '3' therefore, is quashed and the case is remanded to the learned Sub-Divisional Officer for disposal in accordance with law and in the light of the above observations.
C. W. J. C. No. 56 of 197144. in this case, the petitioner claimed to have taken Kurfa settlement in 1937 of Plot No. 12 of AKJ No. 35 of village Deolbari from the recorded tenant, whose son is Respondent No. 2, in this application, and, claims to have come in possession. The petitioner's case further is that Title Suit No. 61 of 1963 was filed by the recorded tenant in respect of the aforesaid Plot No. 12, in the Court of the Subordinate Judge of Jam-tara, and a compromise decree was passed on the 9th November, 1963, in which the petitioner's right, title and interest in respect of Plot No. 12, having an area of 1 Bigha 15 Kathas, were recognised. It is urged on behalf of the petitioner that he acquired adverse title on this plot. It appears that Respondent No. 2, on the 8th February, 1967, filed an application under the Bihar Scheduled Areas Regulation, 1969, that Plot Nos. 12, 13, 14, and 20 of the above Jama-bandi No. AKJ 35, having an area of 12.39 acres had been forcibly and illegally occupied by the petitioner about 3 or 4 years ago. A copy of the said application has been filed as Annexure T to the writ application. The learned Sub-divisional Officer, without deciding the question, since when the petitioner came in possession of the suit land, passed the following orders:--
"From the facts placed before me, I am satisfied that this is a clear case where the lands of Dasrath Murmu has been illegally alienated and in order to give it a legal shape the parties entered into collusive title suit which was ultimately compromised and the O. P. got the land which they wanted to keep in their possession. This is a clear case where the provisions of Section 20 (1) of S. P. T. Act have been contravened I, therefore, evict the O. P. S. from the lands ...... under the amended Section 20 (5) of the S. P. T. Act, 1969, read with Section 6 of the Bihar Scheduled Areas Regulation Act, 1969."
It is thus apparent that necessary facts have not been investigated and there is no clear finding as to whether the petitioner really came in possession, as alleged by them, by virtue of the Kurfa settlement in the year 1937, during the period when Section 27 of Regulation III of 1872 was in force, or came in possession when the Act was in force, as alleged by Respondent No. 2. If the petitioner came in possession of the Plot in question in 1937 under an invalid transfer and remained in possession for twelve years, he could acquire title by adverse possession, otherwise not, as no title by adverse possession could be acquired, if the petitioner came in possession after 1949, when the Act was in force. It should be made clear that if the case of the petitioner that he came in possession of the plots in question in 1937 and continued to be in possession throughout is correct, then restoration could only be ordered under the provisions of Sub-section (5) of Section 20 of the Act on deposit of money as envisaged under the third proviso to that sub-section. The order of the learned Sub-divisional Officer, in so far as Plot No. 12 is concerned, therefore, has got to be quashed, as that is the only plot claimed by the petitioner, and the case remanded to the learned Sub-divisional officer for decision in accordance with law. The order of the learned Sub-divisional Officer, in respect of other plots, which are not claimed by the petitioner is not disturbed. This application is, therefore, allowed, the impugned order dated the^ 9th December, 1970, of the learned Sub-divisional Officer, Jamtara, contained in Annexure '3' is quashed to the extent, as indicated above, and the case is remanded to him for disposal in accordance with law and in the light of the observations mada above.
45. In the result, all the three applications are allowed and the orders impugned therein are quashed to the extent as indicated above. In the circumstances of the case, there will be no order as to costs in any of these cases.
U.N. Sinha, C.J.
46. I agree.
Sarwar Ali, J. 47. I agree.