Sujit Narayan Prasad, J
Prayer:
1. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 23.02.2023 passed by the learned Single Judge in W.P.(C) No. 4727 of 2013, whereby and whereunder, the writ petition has been dismissed by declining to interfere with the order dated 10.06.2013 passed in SAR Revision No.07 of 2007.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:
The land of village Kalimati under khata no. 66 plot no. 1401 was recorded in the name of Sine Masi Reven s/o Paulush Reven one share and Anthony Sine Masi Marshel w/o Soman Aind one share who were the Uraon (Scheduled tribe) in the cadastral survey and settlement operation.
Sine Masih Reven died issueless, thereafter his nephew Masih Das Khakha inherited, succeeded / acquired the right, title & possession of above land of plot no. 1401 under khata no. 66 of village Parsudih.
One Marshel Aind fraudulently posted himself as successor of Sinee Masih Reven as his grand son (son of daughter of Sinee Maish) and proposed to transfer the above land of plot no. 1401 of village-Kalimatti to the petitioner and entered into an agreement for transfer of 10 Katha land of plot no. 1401 of village- kalimati and executed an agreement on 25.07.1982.
The petitioner after some times when the said Marshel Aind delay to execute sale deed enquired the matter and found that Marshel Aind was not the heirs or successor of Shine Masih Reven, he was fraudulently posted himself as successor of recorded tenant.
The writ petitioner let out the above premises of plot no. 1401 to Marshel Aind who was only the tenant of the petitioner Marshel Aind after few years fraudulently started to claim the above land of plot no. 1401 by claiming himself as legal heirs & successor of recorded tenant Sine Mahih Reven through his mother Agnesh Aind.
Smt. Agnesh Aind w/o Sugandh Das Aind and D/o Dumabi Ho @ Kili Sundi was not the heirs of recorded raiyat, recorded raiyat Shimne Masih reven was by caste "Uraon" and Agnesh Aind was previously by caste "Ho" and after marriage with "Munda" she become by caste "Munda".
Marshel Aind the original petitioner of restoration case claiming himself as heir of Smt. Gano Agnesh Aind @ Agnesh Aind and grandson/daughter of Sinee Masin Reven and claiming the land of above khata no. 66, plot no. 1401 of village recorded raiyat filed a case u/s 71A of the CNT Act.
The petitioner of aforesaid restoration case is not the heir or successor of recorded raiyat shine Masih Reven (Uraon) because he was belongs to caste "Ho" and subsequently married with "Munda".
On permission of the ancestor of respondent nos. 6 to 9 the petitioner after agreement constructed pucca boundary and four rooms thereon and used as residence of his family members.
Thereafter, the respondent filed the petition to Deputy Collector Land Reform, Jamshedpur for restoration of the above land under Section 71-A of the C.N.T Act in which he concealed the truth that he has no claim over the land in question and he fraudulently made agreement to transfer the said land in favor of the petitioner and there after the petitioner on consent of the respondent constructed the boundary & Pucca rooms thereon and since 1982 the petitioner is in occupation of the above premises.
Thereafter, the Circle Officer enquired the matter and submitted report to the D.C.L.R, Jamshedpur stating therein that the petitioner is in possession of the above land and the petitioner also has his houses thereon.
The petitioner had filed the rejoinder, claiming the land in question through Masih Das Khakha & also on basis of possession since long time. The petitioner also stated & proved by the evidences that the Marshel Aind is not the heirs or successor of recorded tenant Shine Masih Reven (Uraon) rather Marshel Aind is by caste "Munda" and his mother belongs to "Ho". The petitioner also stated that according to the "Uraon" customary Law the female heirs not entitled to inherit the property of her male heirs.
The court of D.C.L.R. passed order in Restoration Case no.1 of 2005-06 for restoration of land in favor of Marshel Aind who was not the heir of recorded tenant.
Thereafter, the petitioner filed the restoration Appeal before the Deputy Commissioner Singhbhum East vide Restoration Appeal no. 103 of 2006 against the order of the DCLR Dalbhum in Restoration Case no.1 of 2005-06. The Learned Appellate Court of Deputy Commissioner passed order dismissing the appeal without giving any reasoned findings.
The petitioner thereafter preferred SAR Revision no. 07 of 2007 before the Commissioner Singhbhum (Kolhan) against the order of SAR Appeal no. 103 of 2006, but the learned Commissioner also dismissed the SAR Revision case no. 07 of 2007 against which the writ petition being W.P.(C) No. 4727 of 2013 had been filed before this Court which has also been dismissed by the learned Single Judge of this Court by declining to interfere with the order dated 10.06.2013 passed in SAR Revision No.07 of 2007 against which the instant letters patent appeal has been filed.
3. It is evident from the factual aspect based upon the pleading made as referred hereinabove that an application was filed on behalf of the private respondents under Section 71-A of the Chhotanagpur Tenancy Act for restoration of land as under plot no. 1410 and 1411 under khata no.66 measuring area 0.10.0 kattha. An order was passed by the Deputy Collector Land Reforms against which an appeal was filed being SAR Appeal No.103 of 2006-07 which was dismissed vide order dated 18.12.2006. The writ petitioner being aggrieved with the said order, challenged the same by filing revision being SAR Revision No. 07 of 2007 which has also been dismissed against which the writ petition was filed being W.P.(C) No. 4727 of 20103 which has also been dismissed, therefore, the present appeal.
Argument on behalf of the learned counsel for the appellants:
4. Mr. Manoj Kr. Choubey, learned counsel for the appellant has taken the following grounds in assailing the impugned order passed by the learned Single Judge as also the administrative authorities:
(i) The application has been filed under Section 71-A of the Chhotanagpur Tenancy act for restoration of the land. The Deputy Collector Land Reforms in the capacity of original authority has called for a report from the Circle Officer wherein the report was submitted that the appellant was not having with the possession over the plot nos.1410 and 1411 rather it has been found to be in possession of the plot no.1401.
Submission has been made that when as per the report of the Circle Officer, the appellant has not been found to be in possession of the plot no.1410 and 1411 under khata no.66, as such, the order passing restoration under Section 71-A of the Act for eviction from plot no.1401 is unjustified.
(ii) The ground has been taken that the original authority has exceeded its jurisdiction by taking decision for restoration of the land contrary to the application made for the aforesaid purpose by the contesting respondents.
The argument on the basis of the aforesaid ground has been made that the order passed by the appellate and revisional authority who have not considered the aforesaid aspect of the matter, therefore, it is not sustainable as also the order passed by the learned Single Judge wherein also this aspect of the matter has not been considered, hence, the present appeal.
5. Learned counsel for the appellant, on the basis of the aforesaid, has submitted that the impugned order needs to be interfered with.
Argument on behalf of the learned counsel for the respondents/writ petitioner:
6. Mrs. Darshanna Poddar Mishra, learned AAG-I for the respondent-State has contended that even accepting the contention made on behalf of the writ petitioner that he was not in possession over the plot nos.1410 and 1411 but as per the report of the Circle Officer, the appellant has been found in possession of plot no.1401, as such, the Collector as per the definition under CNT Act, after coming to the conclusion that such possession is not with the consent of the Deputy Commissioner as required under Section 46 of the Chhotanagpur Tenancy Act and if in that pretext, the order of restoration of the possession of the land has been passed, the same cannot be said to suffer from error.
Response by the learned counsel for the Pvt. Respondents:
7. Mr. Amit Kumar, learned counsel for the private respondents has adopted the submission/ground made on behalf of the learned counsel for the respondent-State.
Analysis:
8. This Court has heard the learned counsel for the parties, gone across the material available on record as also the finding recorded by the original, appellate and revisional authority as also the finding recorded by the learned Single Judge in the impugned order.
9. The undisputed fact in this case is that the contesting respondent has made an application under Section 71-A of the CNT Act for restoration of land said to be plot nos.1410 and 1411 over khata no.66. The same was entertained and the notice was issued upon the appellant. The appellant filed show cause and has taken the ground that he is not in possession with the plot nos.1410 and 1411. A report was called for from the concerned Circle Officer wherein the report was submitted that the appellant is not in possession over the plot nos.1410 and 1411 of khata no.66 rather he is in possession of plot no.1401.
The Deputy Collector Land Reforms, based upon the said report, has passed an order for restoration. The said order was challenged before the appellate forum which also got dismissed against which revision was preferred, which also got dismissed declining to interfere with the order passed by the original authority.
All the three orders were challenged by filing writ petition W.P.(C) No. 4727 of 2013 but the same has also been dismissed against which the present appeal has been filed.
10. The ground has been taken on behalf of the appellant that the Collector deviating from the prayer made in the restoration application with respect to the possession of the land has committed gross illegality. Therefore, the questions which require consideration in the present case are:
(i) Whether the application so filed by the applicant under Section 71-A of the Act, if made wrong reference of the plot number making prayer for restoration of the same, in that circumstances the entire proceeding will be vitiated ?
(ii) Whether if on the wrong pretext, an application has been filed for restoration of the land but subsequent thereto, when the report has been submitted by the revenue authorities having possession over the land in question without permission of the Deputy Commissioner as required under the CNT Act, can it be said that the entire proceeding will be vitiated ?
Both the issues since are interlinked, as such, are being discussed hereinafter.
11. It needs to refer herein the very object of the Chhotanagpur Tenancy Act. The Chotanagpur Tenancy Act, 1908, is a land rights legislation that was created to protect the land rights of the tribal population of the Jharkhand instituted by the British. Major feature of the C.N.T. Act is that it prohibits the transfer of land to non-tribals to ensure community ownership. The areas of North Chotanagpur, South Chotanagpur and Palamau Division are included in the jurisdiction of C.N.T. Act. The Act is listed in the 9th Schedule of the Constitution.
12. The position of law is that if any beneficial piece of legislation has been made to protect the interest/right of a particular community, the same is to be taken note by following liberal approach and not on the basis of technicality.
13. The CNT Act has been enacted by keeping the principle that the tribal people are novice and as such, in each and every proceeding, the Deputy Commissioner has been made to be a necessary party so that they may not be subjected to any exploitation. The CNT Act has got mandatory provision as under Section 46 wherein the land can be transferred in between tribal to tribal but with prior sanction of the Deputy Commissioner if the land falls within the same police station. For ready reference, the provision of Section 46 is being referred as under:
“[46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof,-
(a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:]
Provided further that,- (a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled Tribes and], who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate;
[(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the 'Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.]
(2) A transfer by a Raiyat of his right in his holding or any portion thereof under subsection (1) shall be binding on the landlords.
(3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction.
[(3-A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.]
(4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the Raiyat into possession of such holding or portion in the prescribed manner.
[(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof:
Provided further that before passing any order under clause (b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit.
(c) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, 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 the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, 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.
(5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. [(6) In this Section [and in Section 47],-
(a) "Scheduled Casted" means such castes, races or tribes as are specified in Part II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950;
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and
(c) "Backward classed" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.]”
14. The aforesaid provision also provides by putting embargo of transfer of land from tribal to non-tribal but herein, we are dealing with the case of transfer of land from tribal to tribal and even for such transfer, the permission of the Deputy Commissioner is required as per the provision of Section 46(1). At the time when the CNT Act was enacted there was no provision for restoration of land save and except the provision as under Section 46(4-A), therefore, an act has come known as Scheduled Area Regulation Act, 1969 by virtue of the same, Section 71-A has been inserted conferring power upon the Deputy Commissioner that if at any time it comes to the notice to the Deputy Commissioner or any application is being made before the Deputy Commissioner, motion can be made for restoration of the land. For ready reference, Sectio 71-A is being referred as under:
"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. - If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat or a Mundari Khunt-Kattidaror a Bhuinhari who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or Section 48 or Section 240 or any other provisions of this Act or by any fraudulent method, including decrees obtained in suit by fraud and collusion he may, after giving reasonable opportunity to the transfer, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, 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 :
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor:
Provided also that if after an inquiry 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 the market value of the land, as the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."
15. The question that at any time was the subject matter of interpretation by the Hon'ble Apex Court in the case of Jai Mangal Oraon vs. Mira Nayak (Smt) and Ors., reported in (2000) 5 SCC 141 and Situ Sahu and Ors. vs. State of Jharkhand and Ors., reported in (2004) 4 JLJR (SC) 109 wherein it has been held that at any time does not mean that it is beyond reasonable time rather by taking into consideration the provision of Article 65 of the Limitation Act, the period of limitation has been prescribed to be raised within 30 years, however, the same is not the subject matter herein but for making reference, the same has been referred herein.
16. It is, thus, evident that as per the provision of Section 71-A of the Act that the Deputy Commissioner on its own or any motion made by any application, the proceeding can be initiated.
17. The main ground taken on behalf of the appellant that he was not in possession of the plot nos.1410 and 1411 under khata no.66 rather his admitted case is that he is in possession of plot no.1401, therefore, whatever order has been passed by the authorities, cannot be said to be in consonance with the application so filed for restoration.
18. This Court has examined the aforesaid factual aspect in the light of the provision of Section 71-A of the Act. The said provision confers power upon the Deputy Commissioner by starting the word “If at any time, it comes to the notice of the Deputy Commissioner…”, the stipulation to the effect that if it comes to the notice of the Deputy Commissioner implies that the due proceeding can also be initiated by the Deputy Commissioner which is to safeguard the interest of one or the other tribal people as also to achieve the object of provision of Section 46(1) of the CNT Act in the facts of the case herein.
19. The admitted position herein is as per the restoration application for restoration of the plot nos.1410 and 1411 over khata no.66 has been sought for. A report which was submitted by the Circle Officer of the concerned circle has reported that the appellant was not found to be in possession of plot nos.1410 and 1411 rather has been found to be in possession of plot no.1401.
20. The fact of possession having not over the plot nos.1410 and 1411 has been discarded and accepting the fact that there was possession of the appellant over the plot no.1401 has been accepted as would be evident from the order passed by the Deputy Collector Land Reforms.
21. The question herein is that even accepting the possession over the land being plot nos.1410 and 1411 over khata no.66 but when the Deputy Collector Land Reforms has found that the appellant in possession of plot no. 1401 then would it be proper for the Deputy Collector Land Reforms to dismiss the restoration application, if yes, then what will happen to the provision of Section 71-A where the Deputy Commissioner has been conferred with the power to act the moment it comes to the notice that transfer is in the teeth of the provision of CNT Act.
22. The answer of this Court is that since the CNT Act is the welfare piece of legislation in which such technical issue is not to be taken into consideration and if in that premise, the Deputy Collector Land Reforms has accepted such report and considering the fact that the appellant was in possession of the plot no. 1401 and also considering the fact that giving over the possession of the said land, there was no permission of the Deputy Commissioner as mandatorily required under Section 46(1) of the CNT Act and in that view of the matter, the Deputy Collector Land Reforms has passed order for restoration.
23. This Court is of the view that if in such circumstances where the factual aspect of having no permission of the Deputy Commissioner as required under Section 46(1) of the Act was not there and merely on the ground that the application filed making wrong reference of the plot, the application if would have bee rejected, the same according to our considered view, would have been said to be improper and the Deputy Collector Land Reforms would have been set at fault in discharging its statutory duty so as to achieve the object and intent of the CNT Act..
Conclusion:
24. The argument which has been advanced, therefore, that merely because the appellant is not in possession of the plot nos.1410 and 1411 rather in possession of plot no.1401 which is not found mentioned in the restoration application, the entire proceeding will vitiate, is not acceptable to this Court.
25. The aforesaid aspect of the matter has been taken into consideration by the appellate and revisional authority.
26. This Court, after having discussed the aforesaid fact, has considered the impugned order passed by the learned Single Judge and has found that the learned Single Judge has taken into consideration as under paragraph-7 of the impugned judgment that there is no permission of the Deputy Commissioner as required under the provision of Section 46(1) of the Act.
27. It also needs to refer herein that the fact about wrong reference of the plot in the report appears to have been not agitated before the learned Single Judge but this Court under the letters patent appellate jurisdiction, which is furtherance of the writ proceeding, has considered the aforesaid aspect of the matter as per the discussion made hereinabove, coupled with the fact that the learned Single Judge has taken into consideration the mandatory requirement of the permission of the Deputy Commissioner, in that circumstances, the order impugned has been refused to be interfered with, the same according to our considered view, cannot be said to suffer from error.
28. Accordingly, the instant appeal fails and stands dismissed.
29. Pending interlocutory application(s), if any, also stands disposed of.
