Manbodh Mahto v. State Of Bihar — 1989 DIGILAW 328 (PAT)

Judgment S.B.Sinha, J. 1. This Letters Patent Appeal is directed against a judgment dated 3rd March, 1986 passed by a learned single Bench of this Court in CWJC No. 399 of 1981 in terms whereof the writ application filed on behalf of the appellant for quashing the orders dated 19.11.1975 passed by the Deputy Collector, khunti, Ranchi, (respondent No. 2), the order No. 3 and the order dated 23.6.1978, passed by the Additional District Magistrate (respondent No. 3) and the order dated 13.3.1981 passed by the Commissioner, South Chhotanagpur Division, Ranchi (responded No. 4) copies whereof were marked as Annexures 2, 3 and 4 to the writ application respectively was dismessed. 2. The proceedings in which the aforementioned orders were passed arose by reason of filing of an application by respondent No. 6 purported to be in terms of Sec. 71A of the Chotanagpur Tenancy Act (hereinafter referred to as the Act), for restoration of the land situate in village Mankidih, P.S. Tamar in the district of Ranchi, in respect of revisional survey settlement plot No. 254 measuring an area of 0.09 acres, plot No. 255 measuring an area of 0.32 acres, plot No. 258 measuring an area of 0.52 acres, plot No. 265 measuring an area of 0.41 acres and plot No. 268 measuring an area of 1.10 i.e. covering a total area of 2.44 acres. 3. In the aforementioned case which was registered as case No. 13 of 1970-71, the petitioner having been noticed appeared and filed a show cause inter alia on the ground that the said application was not maintainable as no transfer of any land in his favour by a raiyat who is a member of Schedule Tribe is involved. It was further alleged that respondent No. 6 was by caste a Lohar and not Lohara. It was further alleged that the appellants 15.11.43, when Loharas were not the members of the Schedule Tribe. According to the appellants the Loharas were declared to be the members of Schedule Tribe in the Year 1950 in terms of the provisions of constitution (Schedule Tribes) Order, 1950 4. It was further alleged that the appellants 15.11.43, when Loharas were not the members of the Schedule Tribe. According to the appellants the Loharas were declared to be the members of Schedule Tribe in the Year 1950 in terms of the provisions of constitution (Schedule Tribes) Order, 1950 4. According to the appellants in terms of Second Proviso appended to Sec. 46 of the Act, 1908 as amended by C.N.T. Amendment Act, 1938 (Bihar Act 1938) the prohibition of transfer was In respect of agricultural holding by an aboriginal within the meaning of Sec. 46(9) of the said Act as it then stood including a person declared by the Governor, by notification, to be an aboriginal for the purpose of the said Section. 5. It appears that the question raised in the aforementioned writ application, namely, that the Loharas were declared to be the members of Schedule Tribe for the first time by reason of S.R.O. No. 510 dated 6th of September, 1950 in terms of Constitution (Schedule Tribes) Order, 1950 made under Clause (1) of Article 342 of the Constitution of India, was not raised before the Respondent Nos. 2, 3 and 4. 6. As noticed hereinbefore, the only contention which was raised on behalf of the appellant before the concerned respondent was that respondent No. 6 was Lohar by caste and not Lohara by caste. 7. Unfortunately, the learned single Judge also did not consider this aspect of the matter in Iris judgment. Sec. 46(9) of the Act as amended by C.N.T. Amendment Act, 1938 reads as follows: In this section the expression aboriginal includes any person declared by the Governor, by notification, to be an aboriginal for the purposes of this section, and the expression Scheduled Caste means any caste declared by the Governor, by notification, to be a Scheduled Caste. The Governor of Bihar in purported exercise of his power under the aforementioned provisions issued a notification on the 7th of October, 1938 whereby the persons and castes named therein were declared to be aboriginal for the purpose of G.N.T. Act. In the said notification Loharas were not mentioned as members of aboriginals. After coming into force of the Constitution of India, the President of India in exercise of his power conferred upon him under Clause (1) of Article 342 thereof made an order known as Constitution (Schedule Tribes) Order, 1950. In the said notification Loharas were not mentioned as members of aboriginals. After coming into force of the Constitution of India, the President of India in exercise of his power conferred upon him under Clause (1) of Article 342 thereof made an order known as Constitution (Schedule Tribes) Order, 1950. In the said order Item No. 20 of the Schedule appended thereto refers to Lohara. 8. Mr. Devi Prasad, learned Counsel appearing on behalf of the appellants, submitted that in this view of the matter as Loharas were declare to be the members of Scheduled Tribe by reason of S.R.O. No. 510 dated 6th of September, 1950, for the first time and further in view of the fact that they were not declared to be aboriginal in terms of Sec. 46(9) of the Act of 1908 as amended by Act No. II of 1938 by reason of the aforementioned Notification dated the 7th of October, 1938; the transfer allegedly made in the year, 1943 would not be hit by Sec. 46 of the said Act. 9. Mrs. Jaya Roy, learned Counsel appearing on behalf of respondent No. 6, on the other hand, submitted that Loharas were members of Scheduled Tribe at the relevant time as it is evident from the Census of the year 1941. It was further contended that Loharas are sub-caste of Mundes and thus were members of Scheduled Tribe even in the year 1943 so as to attract Sec. 46 of the Act. 10. The learned Counsel further submitted that this aspect of the matter has been dealt with by this Court in Chandra Mohan Mahato V/s. State of Bihar reported in 1988 B.L.T. Page 132. 11. the said Act from its inception provided for prohibition in transfer of agricultural holding by any raiyat. 12. The said Act was amended by C.N.T. (Amendment) Act, 1938 whereby and where under Sec. 46 was substituted by reason of Sec. 9 thereof, Sub-sections (1) and (2) of Sec. 46 of the said Act, as it then stood, read as follows: 1. No transfer by a raiyat of his right in his holding or any portion thereof shall be valid to any extent except as provided in this section. 2. No transfer by a raiyat of his right in his holding or any portion thereof shall be valid to any extent except as provided in this section. 2. An aboriginal raiyat or a raiyat who is a member of a Scheduled Caste may transfer his right in his holding or any portion thereof- (a) by bhugut bandha mortgage to a Society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935, B and O. Act VI of 1935 for a period not exceeding fifteen years, or to tiny other person for a period not exceeding seven years: (b) by lease, to any person for a period which does not and cannot in any possible event, by any agreement, express or implied, exceed five years. As noticed hereinbefore, Sub-sec. (9) of Sec. 46 of the said Act provided that in this section the expression aboriginal includes any person declared by the Governor, by notification, to be an aboriginal for the purpose thereof. 13. It was found in several cases that in a sale-deed or in a Records-of-right a person described himself or was described as a Lohar and not a Lohara. 14. In those cases a plea is taken as to whether description of such a person as a Lohar who is not a member of Scheduled Tribe, is correct 15. Such a contention was the subject-matter of various decisions of this Court, Reference in this connection may be made to Chandra Mohan Mahto V/s. State of Bihar and Ors. reported in 1987 BLT 261 : C.W.T.C. No. 370 of 1983 (R) Chand Mahto V/s. State of Bihar, Liloo Sahu and Ors. V/s. The State of Bihar reported in 1988 BLT 4 and Devi Narayan Singh V/s. The State of Bihar reported in 1988 B.L.T. 17 and Chand Mahto V/s. State Bihar reported in 1989 B.B.C.J. 296. 16. In Chand Mahto V/s. State of Bihar reported in 1988 B.L.T. 132 relying upon the Full Bench decisions of this Court in Amrendra Nath Dutta and Ors. V/s. The State of Bihar and Ors. 16. In Chand Mahto V/s. State of Bihar reported in 1988 B.L.T. 132 relying upon the Full Bench decisions of this Court in Amrendra Nath Dutta and Ors. V/s. The State of Bihar and Ors. reported in -- ; Bina Rani Ghosh V/s. Commissioner, South Chhotanagpur Division reported in 1985 B.L.T. 279 and Paritosh Maity V/s. Ghasi Ram Maity reported in 1987 B.L.T. (Rap) page 131) ; this Court held as follows: By reason of the provisions of the aforementioned Scheduled Areas Regulation, 1969, power has been conferred upon the Deputy Commissioner appointed under the Act to annul a transfer made by a member of the Scheduled Tribe in favour of a person if such transfer has been made in contravention of the provision of Sec. 46 or any other provision of Chhotanagpur Tenancy Act or such transfer has been obtained by fraudulent method. By reason of the provision of the said Act the Deputy Commissioner is even empowered to ignore an admission made by a person who is a member of the Scheduled Tribe. The aforementioned legislation even goes to the extent that even in a Civil Suit by and between a member of Scheduled Tribe and a person who is not a member of Scheduled Tribe, the Deputy Commissioner has to be impleaded as a party obviously for the purpose of safeguarding the interest of such Scheduled Tribe. The purpose for bringing the aforementioned legislation is obvious in the Scheduled Area by reason of the provision of Chhotanagpur Tenancy Act and other similar legislation, the raiyati interest of the member of the Scheduled Tribe were sought to be protected so that the raiyati holding cannot be transferred by a member of Scheduled Tribe in favour of any other person. 17. In view of the decisions as referred to hereinbefore, it is clear that whereas Lohars are not the members of Scheduled Tribe, Lohra or Loharas are the members of Scheduled Tribe. The question, however, as to whether the Loharas were members of Scheduled Tribe or not in the year, 1943 would be a question of fact. After the coming into force of the Constitution (Scheduled Tribes) Order, 1950 there cannot be any boubt that they Sheen declared to be the members of the Scheduled Tribe. However, The phraseologies used in Article 342 of the Constitution of India and Sec. 46(9) of the C.N.T. Act are different. 18. After the coming into force of the Constitution (Scheduled Tribes) Order, 1950 there cannot be any boubt that they Sheen declared to be the members of the Scheduled Tribe. However, The phraseologies used in Article 342 of the Constitution of India and Sec. 46(9) of the C.N.T. Act are different. 18. Whereas in Article 342 of the Constitution of India the President may specify the Tribe or Tribal Communities or parts or Groups within Tribe or Tribal Community which shall for the purpose of the Constitution be deemed to be the Scheduled Tribes in relation to that State or Union Territory as the case may be; in terms of Sec. 46(9) of the C.N.T. Act the expression aboriginal is inclusive of a person who may be declared to be an aboriginal for the purpose of the said Section. 19. Sub-sec. (9) of Sec. 46 of the Act is, therefore, not exhaustive but gives an extended meaning to the word Aboriginal. 20. In my opinion, therefore, despite the notification dated the 7th of October, 1938, it is permissible for the respondent No. 6 to show that the Communities of Loharas were aboriginals or members of a Scheduled Tribe. It may however, be profitable to note the origin of then Loharas as contained in Ranchi District Gazetteer at page 126 which is in the following terms: The Loharas consist partly of imigrants from Bihar who are known as Kanaujia Loharas and partly of indigenous blacksmiths who are known as Kol Loharas or Nagpuria Loharas or Loharas. The Nagpuria Loharas are divided into two sub-cates, viz., Sad Kumar and Lohara proper. The Sad Kamars have abandoned their caste-occupation and are engaged in agriculture. They still speak Mandari and in some villages follow the Munda custom of burial in a sasandiri. They do not take meat other than of fowls or goats, do not drink pachwai, do not take cooked food from Mundas and will take water only from those who observe the same distinctions in the matter of food as themselves. They still speak Mandari and in some villages follow the Munda custom of burial in a sasandiri. They do not take meat other than of fowls or goats, do not drink pachwai, do not take cooked food from Mundas and will take water only from those who observe the same distinctions in the matter of food as themselves. On the other hand, they admit into caste the children of Munda women, thoough the women herself may be regarded as a concubine The Loharas are much lower in the social scale than the Sad Kamars, they observe very few restrictions about food and drink, for they take cooked food both from Mundas and Craons, and even eat the carcases of dead animals. Intermarriage between Sad Kamars and Loharas is unknown. 21. As this aspect of the matter was not at all considered but the learned Single Judge in the impugned order passed in C.W.J.C. No. 399 of 1981 (R), the same cannot be sustained. 22. It is also necessary in the interest of justice that the parties should be given an opportunity to adduce evidence to show that respondent No. 6 and his predecessors were aboriginals Scheduled Tribes or were treated to be such for the purpose of Sec. 46 of the C.N.T. Act even in the year 1948. 23. In the result, this writ application is allowed. The impugned order dated 3.3.1986 passed in C.W.J.C. No. 399 of 1981 is set aside and consequently the orders dated 19.11.75 passed by the Deputy Collector, Khunti, Ranchi (respondent No. 2), the order dated 23.5.78 passed by the Additional District Magistrate (respondent No. 3) and the order dated (13.3.81 passed by the Commissioner, South Chotanagpur, Division, Ranchi respondent No. 4), as contained in Annexures 2, 3 and 4 to the writ application respectively are hereby quashed, and the matter is remitted to the Land Reforms Deputy Collector, Khunti, District Kanchi, the Collector under the Scheduled Area Regulations, 1969 to decide the case afresh after giving an opportunity to both the parties to adduce evidence on the aforementioned issues. 24. With these observations this Letters Patent Appeal is allowed. But in the facts and circumstances, there will be no order as to costs. B.P.Singh, J. 25 I agree.