@JUDGMENTTAG-ORDER
Ajit Kumar Sinha, J.@mdashIn the instant writ petition the petitioner prays for issuance of a writ in the nature of certiorari or any other writ, order or direction for quashing the order dated 18.5.1999 passed by respondent No. 2, Commissioner, South Chhota Nagpur Division, in S.A.R. Revision No. 120/1991, allowing the said revision and setting aside the orders of land restoration passed by the respondent Nos.3 and 4 respectively in favour of the petitioner in the purported exercise of his revisional powers unde'' Section 217 of the Chhota Nagpur Tenancy Act as the Respondent No. 2 has completely misdirected himself in law by misconstruing the limitation period as provided u/s 48 (4) of the Chhota Nagpur Tenancy Act and in not applying the limitation of 30 years as applicable in cases of land restoration u/s 71A of the Chhota Nagpur Tenancy Act.
2. The facts, In brief, are set out as under:
The petitioner had preferred an application u/s 71A of the C.N.T. Act for restoration of land of 45 decimals under R.S. Plot No. 319, Khata No. 179 at village Madhukam, P.S. Sukhdeo Nagar, district Ranchi and the same was registered as S.A.R. Case No. 169 of 1993-94. The learned Special Officer, Ranchi, respondent No. 4 herein, allowed the petition for restoration vide its order dated 13.12.1996 and S.A.R. appeal No. 570 R 15/97 was preferred under the provisions of Section 48(4) of C.N.T. Act. It was also dismissed on 15.7.1998. Thereafter S.A.R. Revision No. 120 of 1998 was filed before the Commissioner who Is respondent No. 2 herein, and vide Its Impugned order dated 18.5.1999 he was pleased to allow the revision reversing the order of the authorities below and the same is sought to be challenged by the petitioner in the present writ petition.
3. The main contention raised by the learned Counsel for the petitioner is that respondent No. 2 revisional authority has clearly erred and misdirected itself while interpreting the provisions of Section 48(4) of the C.N.T. Act in passing the impugned order which relates to restriction on the transfer of Bhuinhari land. The second contention raised by the learned Counsel for the petitioner is that the exercise of jurisdiction by respondent No. 2 without applying the dead line of 30 years of amended rule of limitation as provided by the Amending Act No. l of 1986, which came in to effect from 01.9.1986 by terms whereof Bhuinanhari lands were also brought within the sweep of Section 71A of the C.N.T. Act was illegal. In the instant case the restoration application was filed in the year 1993 i.e. much before 30 years. It has also been contended that respondent No. 2, revisional authority himself after holding that the Sada Humumnama had been concocted in the year 1974 by Abdul Rahman for transferring the land in question to one Ram Ranam Sharma, the vendor of private respondent No. 5 to 14 in the year 1974-75-76 and 1991 ought to have further held that the transfer in favour of Ram Ranam Sharma as also in favour of private respondent was of no consequence and it has net conferred any title on the private respondent Nos. 5 to 14. The learned Counsel for the petitioner further submits that transfer in favour of private respondent Nos.5 to 14 was not made by any member of Bhuinanhari family but admittedly by Abdul Rahman and Ram Ranam Sharma who were not member of the Bhuinanhari family and Sub Section 3 of Section 48 clearly provides that such a transfer shall not be valid. It has also been submitted that the petitioner being Oraon is a member of scheduled tribe and is entitled to the protection and enforcement of its right relating to the property as secured u/s 300-A of the Constitution of India and though being agnate relation of the recorded tenant had accordingly filed the application u/s 71A of the C.N.T. Act claiming restoration of the land in question.
4. The learned Counsel for the respondents in reply submits that the land being Bakast Bhuinharl no petition for restoration would lie after the expiry of 12 years from the date of transfer or dispossession and thus the claim of the petitioner had already extinguished by limitation and lapse of time. It has also been contended that the land In question was settled in Chhaparbandi right in the year 1948 by the recorded tenants Chotka Mahadeo Oraon in favour of one Abdul Rahman and said Abdul Rahman subsequently transferred the land in question by registered document to Ram Raham Sharma on 3.4.1974 and said Ram Ranam Sharma in his turn has transferred portions of the land in question to the present respondents by means of registered document. It has also been submitted that building has been constructed long before the enforcement of Scheduled Area Regulation Act, 1969 and the limitation up to 12 years, as provided in Section 48(4) of the C.N.T. Act prior to coming into force of Amending Act, 1986 was applicable in the present case. It has also been contended that respondent No. 5 to 14 along with their vendor have remained In possession for a period of more than 12 years when the Amending Act, 1986 came into force and therefore they have acquired title by adverse possession.
5. In the instant case the Revisional Authority vide its order dated 18.5.99 which is sought to be challenged set aside the order passed by the learned authority below and allowed the revision. There is no dispute about the (act that the restoration application was filed as S.A.R. case No. 169 of 1993-94 in the land being Bakast Bhuinhari. The land which was owned and possessed by one Chotka Mahadeo Oraon was orally settled in favour of Abdul Rahman coupled with grant of rent receipt and delivery of possession followed by customary Hukumnama dated 3.2.1948 and he had constructed boundary wall after taking settlement of land and a house in a portion of the land and later on sold a portion of the land to Ram Ranam Sharma through Registered Sale Deed in the year 1974 in which son of Chotka Mahadeo Oraon namely Mangru Oraon figured as a witness. The said Ramjanam Sharma sold the land acquired by him through registered deed of sale in the year 1974-75 to the petitioner and other respective purchaser who came into possession of the respective land along with house standing thereon. They have also got their name mutated in the Ranchi Municipal Corporation and are paying taxes. The land is Chapparbandi and homestead and as such the provision of Section 71A of the C.N.T. Act are not attracted.
6. It will be relevant to quote Section 71A of the Chotanagpur Tenancy Act along with the first proviso In which there was an amendment by, way of Bihar Regulation No. 1 of 1986 extending the period of limitation of 30 years from the date of transfer with reference to Section 48(4) of the Act:
71-A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred: If at any time, it comes to the notice of the Deputy Commissioner, that transfer of land belonging to a raiyat for a Mundari Kunti-Kattidar or a Bhuinhari] who is a member of the Scheduled Tribes has taken place in contravention of Section 46 [or Section 48 or Section 240] or any other provision of this Act or by any fraudulent method, [including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the transfer, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has. within 30 years from the date of transfer. constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed:
7. In the Instant case there is no dispute about the fact that the land in question which was Bhuinhari land was transferred on 30.3.1974 and the petition for restoration was filed in the year 1993 and thus, in view of the amendment of the first proviso to Section 71A of the Act the limitation period to file the restoration petition u/s 71A is 30 years from the date of transfer. The fact remains that the limitation period prescribed u/s 48(4) of the Act was 12 years before amendment which stood amended by Amendment Act No. l of 1986 and the same was published in the Bihar Gazette on 1.9.1986 extending the limitation period to 30 years.
8. In 1992 (2) PUR 986 this Court, while considering a similar issue held that the Bhuinharl tenures came within the purview of Section 71A from 1986 alone and the period of limitation would be deemed to have been extended to 30 years.
9. In the aforesaid background, the revisional authority has clearly erred in allowing the revision petition and setting aside the order passed by the authority below solely on the ground that the petition for restoration was filed in the year 1993 and the limitation u/s 48(4) of the Chotanagpur Tenancy Act is 12 years. The revisional authority further erred in holding that the amended Act No. 1 of 1986 was published in the Bihar Gazette on 1.9.1986 and therefore, the petitioner along with their vendors have remained in possession for a period of more than 22 years when the amended act No. 1 of 1986 came into force and thus, they acquired title by adverse possession.
The fact remains that period of 30 years has to be counted from the date of transfer In view of the amendment brought about in the first proviso to Section 71A of the Act and thus, the interpretation given by the revisional authority is on the face of It erroneous and illegal. The language of the first proviso as well as Section 48(4) of the Act is that 30 years has to be computed from the date of transfer. It is well settled that transfer of land cannot be done by virtue of only a Sada Hukumnama and an unregistered Hukumnama is not admissible and cannot be considered as a deed of title more so, when the settlement was also oral.
10. Considering the aforesaid facts and circumstances of the case, this writ petition is allowed and the impugned order dated 18.5.1999 passed by revisions! authority i.e. Commissioner, South Chotanagpur Division is quashed.
11. There shall be no order as to costs.
