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2002 DIGILAW 849 (JHR)

Krishna Deo Narain Agrawal v. State Of Bihar

2002-08-12

TAPEN SEN

body2002
JUDGMENT Tapen Sen, J. 1. Heard Mr. Debt Prasad, learned counsel for the Petitioner assisted by Mr. L.K. Lal and Mr. Pradeep Modi learned Government Pleader-1 for the State No. body appears on behalf of Respondent No. 3. 2. The writ petition has been filed for quashing the order dated 29.11.1994 passed in SAR Case No. 116/83-84 by the Special Officer, Schedule Area Regulation, whereby and whereunder 4 decimals of land of Khata No. 13, Plot No. 1151 and 10 decimals of land on the same Khata, i.e., Khata No. 13 of Plot No. 1152 has been ordered to be restored in favour of the Respondent No. 3. The Petitioner, however, is concerned with 0.10 decimal of land falling on Plot No. 1152 only. The Petitioner is also aggrieved with the consequential order dated 30.09.1995 by reason whereof the Special Officer, Scheduled Area Regulation has passed an order relating to delivery of possession. 3. A preliminary objection with regard to the maintainability of the writ petition raised on behalf of the Respondents is rejected and it is held that notwithstanding the availability of alternative forums, i.e., appeal, revision and petition before the Member, Board of Revenue, this writ petition is nonetheless maintainable inasmuch as, apart from the fact that this is a writ of certiorari, it seeks to challenge the orders passed under Section 71-A of the Chhotanagpur Tenancy Act, which admittedly in the facts and circumstances of the case was not maintainable. The orders were wholly without jurisdiction and therefore, the bar of alternative remedy shall not apply. Therefore, this Court proceeds to entertain the application under Article 226 of the Constitution of India, notwithstanding the availability of alternative remedies as stated hereinabove. 4. The facts of this case which are necessary to be looked into are as follows : 5. Lands measuring 0.63 acres out of Plot No. 1152 at Khata No. 13 situated in Village-Hatma, P.S.-Lalpur, District-Ranchi, were previously recorded in the names of Chhotka Boka Oraon, the father of the vendor of the Petitioner and others in the revisional survey record of rights. On the basis of amicable settlement/partition, the lands on plot No. 1152 was allotted to the share of Chhotka Boka Oraon, who came in exclusive possession of the same and his separate possession was recorded in the record of rights. 6. On the basis of amicable settlement/partition, the lands on plot No. 1152 was allotted to the share of Chhotka Boka Oraon, who came in exclusive possession of the same and his separate possession was recorded in the record of rights. 6. Pursuant to the death of Chhotka Boka Oraon, the land was inherited by Nanka Oraon being only legal heir of Chhotka Boka Oraon and he came in exclusive possession of the land in question. This Nanka Oraon, applied for permission to sell the lands in question in favour of this Petitioner under the provisions of Section 49 of the Chhotanagpur Tenancy Act, before the deputy Commissioner, Ranchi and this was registered as Misc. Case No. 116-R-8-II of 1960/61. 7. It appears that by an order dated 5.5.1961 the Deputy Commissioner Ranchi passed an order as contained at Annexure 1/A and it reads as follows : 8. "In exercise of the powers conferred on me under Section 49 of the Chhotanagpur Tenancy Act, (Amended Act XXV of 1947). I hereby sanction the transfer of the following plots by the applicant to Dr. Krishna Deo Narain Agrawal S/o Shri Kharag Narain Agrawal of Barki Sarai, Dis-trict-Munger by way of sale for a sum of Rs. 7,500/- only." 9. The aforementioned sanction relates to Hatma P.S. Ranchi Thana No. 200, District-Ranchi, Khewat No. 2, Plot No. 1152, Area-0.36 acres. 10. After the aforementioned permission was accorded by the Deputy Commissioner in favour of Nanka Oraon, the entire 0.36 acres of land were purchased by the Petitioner by a registered deed of sale dated 20.05.1961. A photocopy thereof has been marked as Annexure 2 to the writ application. As expected, immediately upon execution of the aforementioned sale deed, the land was mutated and the Petitioner started regularly making payment of rent and came in actual physical possession thereof. 11. All of a sudden in the year 1976, it appears that Nanka Oraon filed an application under Section 71-A of the Chhotanagpur Tenancy Act, before the Special Officer, Schedule Area Regulation, Ranchi wherein he claimed restoration of entire 0.36 acres of land which he had sold to the Petitioner and this case was registered as Misc. Case No. 58/1976. The Petitioner appeared, the matter was enquired into by the Circle Officer. Case No. 58/1976. The Petitioner appeared, the matter was enquired into by the Circle Officer. Town Anchal and he submitted his report on 25.08.1976 vide Annexure 4 and thereafter the Special, Officer, Schedule Area Regulation, Ranchi rejected the claim of Nanka Oraon by order dated 28.06.1976 as contained at Annexure 5 to the writ application. Therefore, it appears that the claim for 0.36 acres of land (which had become a subject matter of challenge by Nanka Oraon, notwithstanding his himself having appeared before the Deputy Commissioner, seeking permission to sell the same) ended in rejection on 28.06.1976. No appeal nor any revision was preferred against the aforesaid order and therefore, this order became final in so far as Nanka Oraon was concerned. 12. After the aforementioned order had been passed and about seven years thereafter one Sanicharwa Oraon son of Langroo Oraon (Respondent No. 3) appears to have suddenly cropped up pressing that 0.30 acres of land on the same plot number and khata number be restored to him under Section 71-A of the Chhotanagpur Tenancy Act. This Sanicharwa Oraon is Respondent No. 3 in the instant case. His application was registered as SAR Case No. 120/83-84. 13. The Special Officer, Schedule Area Regulation, after finally looking into the papers and the show cause filed by the Petitioner and after having fully considered oral and documentary evidence, dropped this proceeding also by order dated 25.02.1986. A copy of the aforementioned annexure is Annexure 6 of the writ application. 14. Neither any appeal nor any revision was filed against the aforementioned order and, therefore, the order dated 25.02.1986 in so far as the Petitioner and Sanicharwa Oraon is concerned, also became final. 15. All of a sudden the same Sanicharwa Oraon once again appeared on the scene and filed SAR Case No. 116/83-84 (the subject matter of the instant writ application) and this time, he prayed for restoration of 0.10 acres of the same Plot No. 1152, Khata No. 13. 15. All of a sudden the same Sanicharwa Oraon once again appeared on the scene and filed SAR Case No. 116/83-84 (the subject matter of the instant writ application) and this time, he prayed for restoration of 0.10 acres of the same Plot No. 1152, Khata No. 13. This time a strange method was adopted by the Special Officer, Schedule Area Regulation, inasmuch as he neither gave any notice to the Petitioner, nor did he give any opportunity of hearing to the Petitioner and without following the aforesaid elementary principles of law/ natural justice, hestraight away passed the order dated 29.11.1994 by which he ordered restoration of 0.10 acres of land on Khata No. 13, Plot No. 1152 in favour of Respondent No. 3. 16. Despite serving of notice upon the Respondent No. 3. as is apparent from the order dated 24.11.1997, no counter affidavit has been filed in the instant case by him although vakalatnama on his behalf was filed on 29.9.1997. 17. Mr. Debi Prasad assisted by Mr. L.K. Lal, learned counsels for the Petitioner has argued that the proceeding under Section 71 -A of the Chhotanagpur Tenancy Act were not maintainable at all for the following two reasons : (A) Firstly the land having been pur-chased by the Petitioner under the provisions of Section 49, i.e. after obtaining permission of the Deputy Commissioner, the only remedy for annuling such a transfer was maintainable under the provisions of under Section 49 (5) of the Chhotanagpur Tenancy Act. The provisions of Section 71-A of the Chhotanagpur Tenancy Act, pertain to fraudulent transfers. In the instant, the facts show that the Deputy Commissioner, in exercise of powers conferred upon him under Section 49 of the Chhotanagpur Tenancy Act, had accorded necessary permission. In that view of the matter it is prima facie established that the proceeding under Section 71-A was not maintainable at all. (B) the second ground urged by the learned counsel for the Petitioner is that on two earlier occasions the proceeding under Section 71-A had been dropped and/or rejected, first of which being on the claim of Nanka Oraon and the same having been passed on 27.08.1976, the second being on the claim of Sanicharwa Oraon (Respondent No. 3) the order having been passed on 25.02.1996. 18. It is also apparent that neither any appeal nor any revision had been preferred against the aforementioned two orders, and. 18. It is also apparent that neither any appeal nor any revision had been preferred against the aforementioned two orders, and. therefore, the two orders had attained finality. It is, therefore, is held that the proceedings under Section 71-A of the Chhotanagpur Tenancy Act were not at all maintainable and they were also hit by the principles of res-judicata. 19. That being the position, the orders are wholly without jurisdiction and clearly nonest in the eyes of law. The impugned orders, therefore, cannot be sustained. They are, accordingly, set aside. 20. Writ petition is allowed. No order as to costs.