Ishwar Prasad Agrawalla v. State Of Bihar — 1996 DIGILAW 743 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. In this writ application, the petitioner has impugned the orders passed by. different authorities under the Chotanagpur Tenancy Act, by reason of which, on an application made by Bhuswa Munda, respondent No. 5 under Sec. 46 (4-A) of the Act, the concerned authority restored the possession of the disputed land in his favour. 2. Before averting to the respective submissions advanced at the bar, it would be appropriate to portray the factual background. 3. Bhuswa Munda filed an application for restoration of lands of plot Nos. 1053, 2187 and 2820, all of Khata No. 121 of village Rambagh, on the ground that since about 5 years he was dispossessed from the aforesaid lands on the basis of forged documents. On such application being filed by the respondent No. 5, a Land Restoration Case No. 25/85-86 was registered and being noticed, the petitioner filed his show cause contending, inter alia, that plot Nos. 2817, 2819 and 2820 of the said khata were surrendered by the recorded tenant in favour of the landlord, who came in khas possession over the same the landlord settled those lands in favour of one Bichha Ram Agrawalla as well as the petitioner under a deed (Hukumnama) dated 31.3.1948 on payment of consideration and thereupon said Bichha Ram as well as the petitioner came in khas possession over the same. Their names were mutated and rents were paid and thereafter, after vesting of the land under the Bihar Land Reforms Act, their names were entered in the Government register and rents were being paid regularly to the Government on grant of receipt since 1954. After death of said Bichha Ram, on or about in 1976 his son Bajrang Lai Agrawalla and four daughters inherited the lands belonged to Bichha Ram and they are still in khas possession over the same without any obstruction or protest from any corner. Similarly the petitioner is in continuous possession of the lands of his share and he constructed a house and a well in portion thereof. Further case of the petitioner is that the deceased father, Kundan Lai Agrawalla purchased plot No. 1053 measuring an area of 1.25 acre of khata No. 121 of the said village from one Ram Niwas Agrawalla by a registered sale deed dated 19.7.1966 on payment of cash consideration and since then he came in possession over the same. Further case of the petitioner is that the deceased father, Kundan Lai Agrawalla purchased plot No. 1053 measuring an area of 1.25 acre of khata No. 121 of the said village from one Ram Niwas Agrawalla by a registered sale deed dated 19.7.1966 on payment of cash consideration and since then he came in possession over the same. Name of his father was also mutated in the office of the Anchal Adhikari and rent was regularly paid en and grant of receipt. According to the petitioner, plot No. 1053 having an area of 2.61 acres, which were surrendered by the recorded raiyat to the ex-landlord, who took possession of the entire area and out of this total area of 2.61 acres, 1.25 acre was settled with Ram Niwas Agrawalla by the ex-landlord and Ram Niwas subsequently sold the said area of land to the father of the petitioner, Kundan Lal. After death of father of the petitioner in 1972-73 petitioner came in possession over the same and still continuing by making payment of rent. On the aforesaid background the petitioner submitted before the Land Reforms Deputy Collector, Hazaribagh, respondent No. 4 that he has perfected his title being in possession of the said land for more than 12 years. 4. It is an admitted fact of the parties that respondent No. 4, on such dispute being raised by the parties, called for a report from the Anchal Adhikari, who after making spot inspection and holding local enquiry, submitted his report dated 25.7.1985. The respondent No. 4 while accepting the said report, however, rejected the claim of the petitioner and ordered for restoration of the land to the respondent No. 5 only on the ground that the petitioner could not file any document regarding settlement of land by the recorded tenant or their heirs to the ex-landlord. In his opinion, as the petitioner could not file the copy of return filed by ex-landlord in favour of the petitioner after vesting, the petitioners case was doubtful. Being aggrieved, the petitioner filed an appeal being numbered as R.A.N. 54/85 and his appeal was also dismissed by the respondent No. 3 holding that the story of surrender is a concocted one which has been put forward by the petitioner to grab the lands of an aboriginal. Being aggrieved, the petitioner filed an appeal being numbered as R.A.N. 54/85 and his appeal was also dismissed by the respondent No. 3 holding that the story of surrender is a concocted one which has been put forward by the petitioner to grab the lands of an aboriginal. According to him, had there being a surrender in 1948, the same should have been done only after following the procedure laid down under Secs. 72 and 73 of the Act. The Revisional Court, respondent No. 2, without going into the merit of the case, refused to admit the revision application being Land Restoration Revision No. 38/88. Aggrieved by the aforesaid orders of respondent Nos. 2, 3 and 4 respectively, the present application has been preferred seeking the quashing of those orders. 5. Mr. N.K. Prasad, learned Sr. Counsel appearing on behalf of the petitioner, has raised the following points in support of his argument: (i) The application under Sec. 46 (4-A) being filed by the respondent No. 5 after statutory period of 12 years, the same could not have been entertained by the authorities as the same was barred by limitation ; (ii) In terms of Sec. 46 (4-A) of the Act, there must be a finding that there is a transfer by an occupancy raiyat; (iii) There being no allegation much less any finding that any of the conditions as laid down in Clause (a) of second proviso to Sub-sec. (1) of Sec. 46 having been contravened, the order of the authorities directing the petitioner to give possession of the land is illegal and must be set aside; (iv) The authorities, under the Act, without discussing the documentary evidence filed by the petitioner, could not have come to a conclusion that the story of surrender and settlement was a concocted one. 6. Mr. S.N. Das, learned Counsel appearing on behalf of the respondent No. 5, on the other hand, strongly contended that the provisions of Chotanagpur Tenancy Act, as far as it relates to restoration of land to the members of Scheduled Tribes, should be construed liberally and when all the three authorities have come to a finding that the story of transfer and re-settlement was a concocted one, this Court exercising its writ jurisdiction, should not interfere with the said finding. Continuing argument, Mr. Continuing argument, Mr. Das submits that respondent No. 5 was dispossesd from the land since 5 years from the date of filling of the application and as such, he was entitled to get back the possession of the land. Lastly be urged that admittedly the petitioner is the grandson of his grand-father, the recorded tenant and even if the name of the petitioner has not been recorded in the records of right, it would be deemed that he is entitled to get back the possession of the land. 7. Mr. V. Shivnath, learned G.P. I, -appearing on behalf of the State, has fairly contented that before invoking the jurisdiction under Sec. 46 (4-A) of the Act, the authorities are required to determine that the applicant was an occupancy raiyat and the dispossession was within 12 years. He submits that without coming to a positive finding of these two issues, the authorities, under the Act, cannot order for restoration in any case. 8. I shall now consider the weight of the contentions advanced by the counsel for the parties and for that it would be useful to state briefly the mandatory provisions upon the subject. 9. Sec. 46, which is in Chapter VIII, deals with Leases and Transfers of Holdings and Transfers. 10. Sec. 46 (1) reads as follows:. 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 mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceeds 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 mortgages 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. Second proviso to that Section contemplates thus: (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 be 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. 11. It is clear that the aforesaid proviso enables a member of the Scheduled Tribes, who is an occupancy raiyat to transfer his right in his holding or portion thereof by sale, exchange, gift or will to another member of the Scheduled Tribes, who is a resident within the local limits of the area of the police station within which the holding is situated only, however, after previous sanction of the Deputy Commissioner. It this mandate of legislature is contravened then the Deputy Commissioner either sno motii or on an application filed by an occupancy raiyat who is a member of the Scheduled Tribes, can the transfer on the ground that the transfer was made in violation of the mandatory provisions as contemplated under Clause (a) of the second proviso to Sub-sec. (1) of Sec. 46. 12. Sub-sec. (4-A)(a) of Sec. 46 reads as follows:- (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-sec. (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-sec. (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 sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter. 13. 13. In the instant case, we are mainly concerned with the first proviso which debars the Deputy Commissioner to entertain any such application filed by the occupancy raiyat for annulling the transfer, if the same is not filed within a period of 12 years from the date of transfer of his holding or any portion thereof. Second proviso also directs the Deputy Commissioner to give the parties concerned a reasonable opportunity to be heard in the matter before passing any other either under Clause (b) or Clause (c) of Sub-sec. (4-A)(a) of Section 46. 14. On this legal backdrop, let me considered the merit of the case. The petition filed by respondent No. 5 as contained Annexure 1 is admittedly in a proforma form. This application shows that respondent No. 5 Bhuswa Muda is the son of Bhalu Munda and his claim is that he was dispossessed since about 5 years by virtue of forged documents. However, the assertion of respondent No. 5 that he was dispossessed since about 5 years is against the findings of the Halka Karmchari as well as Circle Officer which reveals that the respondent No. 5 was out of possession since 30-32 years. The Circle Officer also found that he was out of possession for more than 15-20 years. This enquiry report (Annexure 3) showed that the petitioner is in possession of the said land from a considerable period and receipts also fortifies his claim. Receipt No. 702836 dated 12.8.1954 and 833247 dated 9.2.1985 alongwith 18 other receipts were looked into during inspection and Enquiry Officer found that the petitioner is in continuous possession over the land by constructing a substantial structure. On the contrary, order of respondent No. 4 dated 14.10.1985 (Annexure 4) clearly indicates that applicant-respondent No. 5 did not file any paper to substantiate his claim over the Lands. He also found that in the restoration petition no mention of area of any existing building is there. He has also catalogued the documents filed by the petitioner before him and has given a finding on the basis of report (Annexure 3) that the respondent No. 5 was out of possession since more than 15-20 years. He found that the respondent No. 5 is the grandson of recorded tenant and rent receipts filed by the petitioner cannot be ignored as they are said to be evidence of presumptions of possession of the petitioner. He found that the respondent No. 5 is the grandson of recorded tenant and rent receipts filed by the petitioner cannot be ignored as they are said to be evidence of presumptions of possession of the petitioner. He also came to a conclusion that the applicant has never challenged the genuineness or veracity of those Government rent receipts or the sale deed of the petitioner in any court of law and got it cancelled as yet. The respondent No. 5 also found that the report of Anchal Adhikari suggests that recorded tenant surrendered the land in question to the ex-land lord. However, whether procedure under Sec. 72 and 73 of the Chotonagpur Tenancy Act was adopted or not is not mentioned in the report. Giving this finding in favour of the petitioner, the respondent No. 4, however, allowed the petition filed by the respondent No. 5 only on the ground that the petitioner did not produce documents regarding surrender of the land to the ex-landlord. In my opinion, the respondent No. 4 has utterly failed in exercising his jurisdiction. 15. I have already noticed above that in view of first proviso to Sub-sec. (4-A)(a) of Sec. 46, no such application for restoration could be entertained if the said is not filed within the period of 12 years from the date of transfer. Having come to a clear finding on the basis of the report of the Anchal Adhikari that applicant was out of possession for more than it least 15-20 years, in my view, the respondent No. 4 has completely erred in his jurisdiction by entertaining the petition filed by the respondent No. 5. 16. In the instant case dates of transfer are 31.3.1948 and 19.7.1966 respectively and the application for restoration having been filed in the year 1985 i.e. much after lapsed of period of 12 years, in my view, the same was apparently barred under the law of limitation as contemplated in first proviso to Sub-sec. (4-A)(a) of Sec. 46. On this -score alone the respondent No. 4 ought to have dismissed the application filed by the respondent No. 5. My aforesaid view finds support from a decision of this Court in the case of Malo Devi V/s. State of Bihar, reported in 1992 (2) PLJR 343. 17. (4-A)(a) of Sec. 46. On this -score alone the respondent No. 4 ought to have dismissed the application filed by the respondent No. 5. My aforesaid view finds support from a decision of this Court in the case of Malo Devi V/s. State of Bihar, reported in 1992 (2) PLJR 343. 17. I may, however, at this juncture, refer to a decision of the Supreme Court in the case of Birsa Munda V/s. Chando Kutnari @ Mst, Dumari and Ors. reported in 1996 (1) BLJR 1, which has been strongly relied by Mr. Das for his contention that expression transfer in Chotanagpur Tenancy Act must be liberally constructed and the surrender made by a tribal should be construed a$ a transfer under the said Act. There cannot be any two opinions, that the provisions of the Chotanagpur Tenancy Act as far as it relates to restoration of land to the members of Scheduled Tribes should be construed liberally but by giving a liberal interpretation of such provision, one should not forget that this country is governed by rule of law and court should interfere only where there is any infraction of the provisions of the law and transfer was actually fraudulent just to deprive a member of the Scheduled Tribes from his rightful ownership and occupation. The provisions as laid down either in Sec. 46 or Sec. 71-A for annulling the transfer and restoration of possession of land to the members of Scheduled Tribes, in my opinion, must be strictly construed and followed by the courts of law and merely on filing such petition by members of the Scheduled Tribes, the Courts without even assigning any reason to discard the documentary evidences filed by the transferee, cannot pass any order mechanically. 18. Under Sec. 264 of the Act, the State of Bihar is to frame rules in relation to the proceedings under the Act. Sec. 46 (4-A) was inserted by virtue of Chotanagpur Tenancy (Amendment) Act, 1969 and rule in relation to proceeding under this Section has been prescribed. 19. 18. Under Sec. 264 of the Act, the State of Bihar is to frame rules in relation to the proceedings under the Act. Sec. 46 (4-A) was inserted by virtue of Chotanagpur Tenancy (Amendment) Act, 1969 and rule in relation to proceeding under this Section has been prescribed. 19. Rule 4 of the Chotanagpur Tenancy Rules, 1959 is in Chapter II, Rule 4 (a) defines the word "transfer" which means a transfer in contravention of Sub-section (1) of Sec. 46 of the Chotanagpur Tenancy Act, 1908 and Rule 4 (b) defines the word "raiyat" means an occupancy faiyat or a raiyat having khuntkatti rights, but does not include a member of a Bhuinhari family referred to in Sec. 48 of the said Act or a tenant of a ghatwali holding. Rule 4 (6) contemplates as follows: (6) (i) The Deputy Commissioner receiving the application under Clause (a) of Sub-sec. (4-A) Sec. 46, after examining the documents if any, which may be produce by or on behalf of his claim over the land, shall serve a notice on the transferee concerned calling upon him to appear either in person or through an agent duly authorised by him in this behalf in his Court at a time and on a date to be specified in the notice and to file a written statement, if any, on the point or points arising in the matter. The Deputy Commissioner after giving a reasonable opportunity to the parties concerned of being heard and adducing evidence, if any, will determine whether the transfer was made in contravention of Clause (a) of the second provide to Sub-sec. (1) of Sec. 46 and these upon pass order under Clause (b) or Clause (c) of Sub-sec. (4-A) of Sec. 46, as the case may be (ii) If the transferee fails to appear either in person or through his duly authorized agent on the date and time specified in the notice, or extended date, the Deputy Commissioner may proceed to decide the dispute ex-parte. 20. It is well settled by now that an authority under any statute must exercise its authority within four comers of that statute and if it fails to follow the procedure as laid down under the law, such exercise of power will be a nullity and its order cannot be sustained in law. 21. The procedures to be followed under Sub-sec. It is well settled by now that an authority under any statute must exercise its authority within four comers of that statute and if it fails to follow the procedure as laid down under the law, such exercise of power will be a nullity and its order cannot be sustained in law. 21. The procedures to be followed under Sub-sec. (4-A)(a) of Sec. 4b read with Sub-rule (6) of Rule 4 mentioned above, mandates the authority not to entertain an application for restoration filed after 12 years of dispossession of a raiyat, but in the case in hand, the respondent No. 4, without averting to the law of limitation, has allowed the prayer of respondent No. 5 when the himself found that respondent No. 5 was out of possession for more than 15 to 20 years. Secondly, the respondent No. 4 without scrutinizing the documentary evidences filed by the petitioner, granted relief to the respondent No. 5 only on the application filed by him and without any iota of evidence Respondent No. 4 having found that the applicant did not produce any evidence to substantiate his claim, in my opinion has erroneously passed the order of restoration. 22. Similarly, both the appellate as well as revisional authorities have failed to exercise their jurisdiction in accordance with law, The mandate of legislature that before passing of an order of restoration the authorities must give reasonable opportunities to the parties has been completely ignored by the concerned authorities. 23. The decision of the Supreme Court, relied by Mr. Das, in my opinion, instead of helping, goes against the case of respondent No. 5 From paragraph 3 of the judgment it is clear that the authorities found that the appellant was a raiyat as his name was recorded in record of rights. On the contrary, in the instant case, none of the authorities has found that respondent No. 5 was an occupancy raiyat even when alleged dispossession took place. It is not in controversy that last record of rights in the District of Hazaribagh was prepared in the year 1917 and as such, even assuming that grand father of respondent No. 5 was recorded raiyat but there is no discussion by the authorities as to whether father of the petitioner also was a recorded tenant after death of his grand father. No chit of prayer was filed by the respondent No. 5 to show that he was a recorded raiyat. In my view, lack of any finding to this effect vitiates the orders passed by respondent Nos. 2, 3 and 4 and the same must be set aside. 24. In the result, this application is allowed and the impugned orders as contained in Annexures 4, 5 and 6 are quashed. There will be no order as to costs.