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2003 DIGILAW 603 (JHR)

Niranjan Mahli v. State Of Bihar

2003-05-12

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. In the instant writ application, the petitioner prays for quashing the order dated 31.3.1990 (Annexure-4) passed by the respondent No. 4 in S.A.R. Appeal No. 2G-R 15/77-78 whereby and whereunder he held that although from the papers and records it appeared that the lands had been transferred to the petitioners after taking permission under Section 49 of the CNT Act, yet it was not clear as to whether such a permission could have been granted to a private individual in relation to a "Bhuinhari" land which could be transferred only for charitable and religious purposes. He accordingly remanded the matter to the respondent No. 3 for purposes of making a fresh enquiry and disposal in accordance with law. The petitioner is further aggrieved and prays for quashing the subsequent order dated 11.9.1995 (Annexure-5) passed by the respondent No. 3 in SAR case No. 69/76-77 whereby and whereunder on the basis of a report of the Circle Officer, Lohardaga made over to him on 13.11.1992, directed restoration of land in favour of the respondent No. 6. The petitioner further prays for quashing of the order dated 9.7.1996 (Annexure-6) passed by the respondent No. 4 in SAR Appeal No. 17 K 15/95-96 rejecting the appeal filed by the petitioners thereby confirming the order dated 11.9.1995. 2. According to the petitioners Plot No. 1739 and 1744 are recorded in Khata No. 408 at Lohardaga as the "Bakasht Bhuinhari lands of one Phagua Pahan and others. The petitioners have stated that in the year 1946, the CNT Act provided that a Bhuinhari land holder will be required to obtain permission from the Deputy Commissioner before transferring the said land and, the Deputy Commissioner was given jurisdiction/discretion to grant permission for any "reasonable and sufficient cause". According to the petitioners, Section 49 of the Chhotanagpur Tenancy Act, 1908 (hereinafter referred to for the sake of brevity as the said Act), as is stood in the year 1946 was as follows :-- "49. Transfer of occupancy holding or Bhuinhari tenure for certain purposes.--(1) Notwithstanding anything contained in Sections 46, 47 and 48, any occupancy raiyat, or any member of a Bhuinhari family who is referred to in Section 48, may transfer his holding or tenure or any part thereof for any reasonable and sufficient purpose. Transfer of occupancy holding or Bhuinhari tenure for certain purposes.--(1) Notwithstanding anything contained in Sections 46, 47 and 48, any occupancy raiyat, or any member of a Bhuinhari family who is referred to in Section 48, may transfer his holding or tenure or any part thereof for any reasonable and sufficient purpose. (2) The expression "reasonable and sufficient purposes" as used in Sub- section (1), includes-- (a) In the case of a member of a Bhuinhari family, but not in the case of an occupancy raiyat, building purposes generally. (b) In any case, the use of the land for any charitable, religious or educational purposes, or for any other purpose which the State Government may, by general or special order, declare to be a public purpose or for the purposes of manufacture or irrigation, or as building ground for any such purposes, or for access to land used or required for any such purpose, and (c) In any case, the use of the land for the purpose of mining or for any other purpose of mining or for any other purpose which the State Government may by notification declare to be subsidiary thereto or for access to land used or required for any such purpose. (3) Every such transfer must be made by registered deed, and, before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained to the terms of the deed and to the transfer. (4) Before consenting to any such transfer, the Deputy Commissioner shall satisfy himself that adequate compensation is tendered to the landlord for the loss (if any) caused to him by the transfer, and, where only part of a holding or tenure is transferred, may, if he thinks fit, apportion between the transferee and the original tenant the rent payable for the holding or tenure. 3. Accordingly, the heirs of the recorded tenant Phagua Munda namely Lachchu Munda, Ram Munda. Pekka Munda and Nekal Munda negotiated the sale of 3.52 Acres falling on Plot No. 1739 for a sum of Rs. 4,200/- with the grandmother of the petitioners for purposes of enabling them to construct a water reservoir or a "Bandh" so that the same could irrigate not only their land but also the lands of other members of the public in the vicinity and provide water to cattle etc. 4,200/- with the grandmother of the petitioners for purposes of enabling them to construct a water reservoir or a "Bandh" so that the same could irrigate not only their land but also the lands of other members of the public in the vicinity and provide water to cattle etc. Consequently, they filed an application on 2.12.1946 under the aforementioned Section 49 of the said Act before the Deputy Commissioner and this was registered as Case No. 20. R. 8(ii) of 1946-47. Thereafter, the Deputy Commissioner directed the rent suit Deputy Collector to make an enquiry and the said Deputy Collector, after making such an enquiry, submitted a report on 7.12.1947 (vide Annexure 1/A) stating that the plot in question was situated three miles south east of Lohardaga where there was no tank, well or water reservoir and accordingly recommended that permission may be given for transfer of the said land to the grand mother of the petitioners. Upon receipt of the aforementioned report, the Deputy Commissioner accorded his approval under Section 49 of the said Act for the sale of the said land vide Annexure- 1. 4. The petitioners have stated that after the said permission was granted by the Deputy Commissioner, Lohardaga, the grand mother of the petitioners purchased the said 3.52 Acres of land and paid the consideration amount of Rs. 4,200/- to the recorded tenants whereafter, the lands were duly mutated in the name of the said grand mother. After her death, the name of the father of the petitioners was duly recorded as a tenant and he paid rent to the State of Bihar. After his death, the petitioner themselves have been paying rent. The photocopy of the sale deed along with photocopy of one such rent receipt are annexed as Annexure-2 and 2-A appended to the writ application. From a perusal of the photocopy of the sale deed, it is apparent that case No. 20 R. (ii) of 1946-47 is specifically mentioned therein which goes to show that the parties to the sale deed had duly incorporated the fact relating to the filing of the application for permission, which as per Annexure-1, was granted on 17.12.1947 as stated at paragraph 4(c) of the writ application, 5. It is the further case of the petitioners as argued by Mr, Kameshwar Prasad, learned senior advocate, that almost 28 years after the aforementioned one Sita Ram Pahan (respondent No. 6) claiming himself to be the son of Late Phagua Pahan, filed an application under Section 71-A of the said Act in of about June 1976. In the said application he prayed for cancellation of the sale deed executed by his predecessors in interest. That application was registered as SAR No. 69/76-77 in the Court of the SDO Lohardaga (respondent No. 2). Upon receipt of notice, the petitioners appeared and filed their cause explaining and stating that the purchase of the land had been made only after the Deputy Commissioner had given his lawful sanction. From that day onwards, they have been remaining in continuous possession of the lands on the basis of the sale deed validly executed on 2.1./1948. Accordingly, they prayed that the application under Section 71 -A should be dismissed in limine. 6. Considering the cause filed by the petitioners, the respondent No. 2 dismissed the application by his order dated 24.9.1976 as contained at Annexure~3 wherein he held that the land in question was a Bhuinhari land and that the Deputy Commissioner had given permission for sale thereof and only thereafter a registered deed of sale was executed and therefore, the land could not possibly be restored in favour of the respondent No. 6 because they are coming in continuous possession since the time of the purchase i.e. since 2.1.1948. 7. Being aggrieved with the dismissal of his application for restoration by An-nexure-3, the respondent No. 6 filed an appeal before the respondent No. 4 and the same was registered as SAR Appeal No. 26 R 15/1977-78. By order dated 31.3.1990 (impugned Annexure-4) the respondent No. 4 held that from a perusal of the papers, it was apparent that the land in question had been transferred under the provisions of Section 49 after obtaining the permission of the Deputy Commissioner. However, he further observed that the land was "Bhuinhari" and under the provisions 49 of the said Act, permission for transfer could be given only for charitable/religious and other public purposes. Section 49, according to him, was not clear as to whether permission for transfer thereunder could be given to a private individual. However, he further observed that the land was "Bhuinhari" and under the provisions 49 of the said Act, permission for transfer could be given only for charitable/religious and other public purposes. Section 49, according to him, was not clear as to whether permission for transfer thereunder could be given to a private individual. Accordingly, he remanded the matter to the Deputy Collector, Land Reforms, Lohardaga and directed him to dispose off the matter after making a fresh enquiry. 8. The petitioners have stated that after the aforesaid remand, the matter remained pending before the respondent No. 8 who directed the Circle Officer, Lohardaga to make an enquiry and submit a report. On 30.11.1992, the Circle Officer, Lohardaga submitted his report before the respondent No. 3 whereafter, on 11.9.1995 the said Deputy Collector, Land Reforms, Lohardaga, by his impugned order dated 11.9.1995 held that under Section 49 of the said Act, there was a provision for transfer of "Bhuinhari" land but such transfer could be made only for charitable, public purposes and also for use of the land for purposes of mining etc. He further observed that in the facts of this case the petitioners had pleaded that transfer had been made pursuant to the sanction/approval of the Deputy Commissioner but it was not clear as to for what purpose the land was being transferred. He also observed that from the Revenue Records it was clear that the land in question was recorded as "Bhuinhari Pahnai" and that the applicant, namely the respondent No. 6, was a Khatiani Raiyat The respondent No. 3, therefore, directed that the land in question should be restored to the respondent No. 6 under Section 71-A of the said Act. 9. Being aggrieved by the aforementioned order, the petitioners filed an appeal before the respondent No. 4 vide SAR Appeal No. 17 R. 15/1995-96. However, by the third impugned order dated 9.7.1996 (An-nexure-6), the respondent No. 4 rejected the appeal and confirmed the order dated 11.9.1995 passed by the respondent No. 3. He also directed the Circle Officer to deliver possession of the land to the respondent No. 6 within a period of one month. 10. Mr. However, by the third impugned order dated 9.7.1996 (An-nexure-6), the respondent No. 4 rejected the appeal and confirmed the order dated 11.9.1995 passed by the respondent No. 3. He also directed the Circle Officer to deliver possession of the land to the respondent No. 6 within a period of one month. 10. Mr. S.N. Rajgarhia, learned counsel appearing on behalf of the respondent No. 6 submitted that under the provisions of Section 46 of the said Act there is a complete restriction on the right to transfer of a "Raiyati" holding even by way of mortgage, lease, sale or gift. Section 48, on the other hand, according to him also creates embargo and imposes restrictions similar in nature to Section 46. His further argument is that so far as Section 49 is concerned, the same initially contained the word "and" after Sub-clause 2(a) but by the amendment Act of 1927, that word was deleted. In other words, what Mr. Rajgarhia contends is that under Section 49 any "Bhuinhari" family as referred to Section 48 could transfer his holding for building purposes generally and for charitable, religious and other public purposes but by reason of the deletion of the word "and", the nature of Section 49 totally changed and therefore, the words "building purposes generally" has to be interpreted in relation to public purpose and not otherwise. This deletion, according to him having been made in the year 1929, therefore on the date when the permission was granted, the Deputy Commissioner could not have granted approval except in matters pertaining to public purpose. He further submits that Section 71-A is very clear and it applies to "Bhuinhari" land also. He further submits that the order in whose favour approval was granted were not the legal heirs of Phagua Munda and that he alone is the only legal heir. He further submits that in any event the permission that was granted was in relation to transfer and not sale. According to him, as per Rule 4 of the Chhotanagpur Tenancy Rules, 1959, the word "transfer" means a transfer in contravention of Section 46(1) of the said Act and the permission having been granted not for a public purpose was clearly in violation of the provisions of Section 46 read with Section 49 of the said Act. According to him, as per Rule 4 of the Chhotanagpur Tenancy Rules, 1959, the word "transfer" means a transfer in contravention of Section 46(1) of the said Act and the permission having been granted not for a public purpose was clearly in violation of the provisions of Section 46 read with Section 49 of the said Act. He has further submitted that the very fact that the application for permission was not for a public purpose would be evident from paragraph 6 of the writ application itself wherein the petitioner have stated that the land in question has been in the possession since the last 47 years and that it is their only source of livelihood. Thus, according to Mr. Rajgarhia, the pleadings themselves point out to the fact that the land is being treated to be a commercial source of income of the petitioners which has got nothing to do with any religious, charitable, educational or public purpose. 11. He further submits that at paragraph 6 of the counter affidavit the respondents has clearly stated that neither was there any "bandh" or water reservoir nor is such a reservoir in existence till date. Moreover, according to him. The petitioners played fraud on the Deputy Commissioner and created a ground which was never acted upon. 12. From a perusal of the provisions of the said Act, it is evident that the sections in relation to restriction of transfer etc. are to be found in Sections 46, 47, 48, 48-A and 240 of the said Act. Section 49, inter alia, provides that notwithstanding anything containing in Sections 46, 47 and 48 a member of a "Bhuinhari" family referred to in Section 48 may transfer his holding or tenure or any part thereof for any reasonable and sufficient purpose. The words "reasonable and sufficient purpose prior to 1929 included building purposes generally and in any case the usage of the land for any charitable, religious or educational purpose or for any other purpose which the State Government may declare or for manufacture or irrigation or as a building ground for any such purpose or for access to land etc. It also included usage of the land for purposes of mining etc. 13. By deletion of the word and in the year 1929 it cannot be said that even building purposes must pertain to public purposes. It also included usage of the land for purposes of mining etc. 13. By deletion of the word and in the year 1929 it cannot be said that even building purposes must pertain to public purposes. Sub-section (2) of Section 49 which has been in existence right from 1908, clearly makes a provision for transfer for "any reasonable and sufficient purpose". Consequently, the argument of Mr. Rajgarhia to the effect paragraph 6 of the writ application shows and establishes a purpose which was not "public" in nature and that the pleadings made therein accepting the position that the land is their only source of livelihood must be rejected as being misconceived. Nowhere does the provisions of Section 49 restricts transfer to the limited contingencies mentioned therein. Such transfer can be allowed under the provisions of Section 49(5) of the said Act alone. In the instant case the permission was granted way back in the year 1947 by the Deputy Commissioner. His granting permission so many years ago cannot be allowed to be doubted by his subordinate officer in the years 1990, 1995 and 1996. Moreover, Section 71 -A clearly lays down that if there is a contravention of Sections 46, 48 or Section 240 or any other provisions of the said Act then the question of applicability of Section 71 -A will be considered by the Deputy Commissioner. In the instant case, permission was sought for in a regular and lawful manner and thereafter, the Deputy Commissioner accorded his approval under Section 49 and, therefore, it cannot, by any stretch of imagination, be said that the transfer was in violation of any of the provisions of the Act referred to above. 14. Moreover, from a plain reading of Section 49, a "Bhuinhari" tenure can be transferred in three contingencies, namely (a) for a reasonable and sufficient purpose which could include building purposes generally or subject to the provisions of Sub-section (3) and (4). Sub-section (3) makes it obligatory for a transfer to obtain the written consent of the Deputy Commissioner whereafter a transfer could be effected by a registered deed. In the instant case, both these conditions are prevalent. Sub-section (4) makes it mandatory upon the Deputy Commissioner that before giving his consent to such a transfer, he must satisfy himself that adequate compensation is tendered to the landlord for the loss, if any, caused to him. In the instant case, both these conditions are prevalent. Sub-section (4) makes it mandatory upon the Deputy Commissioner that before giving his consent to such a transfer, he must satisfy himself that adequate compensation is tendered to the landlord for the loss, if any, caused to him. In the instant case, the Deputy Commissioner granted permission after satisfying himself on the basis of a report submitted and took care to see that the consideration at that time was sufficient and adequate being Rs. 4,200/- in the year 1947. Sub-section (4) of Section 49 therefore, in the facts and circumstances of this case will have no application firstly because the permission was granted in 1947 by the Deputy Commissioner, the sale deed was executed on 2.1.1948 and the application for restoration was filed in June 1976 i.e. after 26 years. Sub-section (5), therefore, could not have been made applicable in the facts and circumstances of this case. Moreover, a transfer made by a "Bhuinhari" tenure holder cannot be held to be a transfer by a "raiyat" so as to attract the provisions of Section 71-A of the Chhotanagpur Tenancy Act. In the case of Harakh Sao v. Dukhan Pahan and Ors. reported in 1981 BLT 253, it has been held by a Division Bench of the then Ranchi Bench of the Patna High Court that holders of "Bhuinhari" lands are tenure holders and their interest had not vested even under the provisions of the Bihar Land Reforms Act and that in respect of such tenures, powers under Section 71-A cannot be exercised. 15. In yet another case of Shri Rajendra Nath Kapoor v. State of Bihar and Ors. reported in 1990 BLT 352, it has been held that the scopes of Sections 71-A and 49(5) are totally and completely different. While Section 71-A is the general provision. Section 49(5) is a special provision and under that special provision, a transfer may be annulled provided of course the ingredients laid down therein are fulfilled. One such ingredient is that the State Government may annul a written consent of the Deputy Commissioner if the matter is initiated within a period of 12 years from the date on which the written consent of the Deputy Commissioner is obtained. In the instant case, the application was filed after virtually 28 years. Moreover, while Section 71-A speaks of fraud having been played on the transferor. In the instant case, the application was filed after virtually 28 years. Moreover, while Section 71-A speaks of fraud having been played on the transferor. Section 49(5) on the other hand speaks of fraud played on the Deputy Commissioner by misrepresentation etc. In the instant case, the application for transfer was filed on 2.2.1946. One year and ten months thereafter i.e. on 7.12.1947 the rent suit Deputy Collector submitted his report after holding an enquiry and thereafter, on 17.12.1947 the Deputy Commissioner gave his sanction. If there was any fraud or misrepresentation played upon the Deputy Commissioner, the same should have been filed within twelve years as per Section 49(5) but the same having been done sometime in June 1976, i.e. after almost 28 years from the date of execution of the sale deed, the application was clearly barred. Moreover, even otherwise the application filed by the respondent No. 6 was not maintainable, the same having been filed under Section 71-A of the said Act as would be apparent from the order dated 11.9.1995 itself. 16. Similar view has been taken by a learned Single Judge of this Court in the case of Jiwan Lal, Hemant Kumar and Ors. v. Sate of Bihar and Ors. reported in 2001 (2) JCR 127 : 2001 (1) JLJR 225 . At paragraph 12 of the said judgment M.Y. Eqbal, J. of this Court has observed as follows :-- "12. Now on reading the entire provisions of Section 49 of the said Act it is clear that notwithstanding the provisions of Sections 16, 17 and 48, an occupancy raiyat or a member of Bhuinhari family may transfer their holding for any reasonable and sufficient purposes but such transfer must be made by registered deed and before deed is registered and the land is transferred, written consent of the Deputy Commissioner must be obtained to the terms of the deed and transfer. Sub-section (5) of Section 49 empowers the State Government to annul such transfer at any time within 12 years if the State Government finds that the consent of the Deputy Commissioner was obtained in contravention of the provisions of Sub-sections (1) and (2) by misrepresentation, or by fraud. Sub-section (5) of Section 49 empowers the State Government to annul such transfer at any time within 12 years if the State Government finds that the consent of the Deputy Commissioner was obtained in contravention of the provisions of Sub-sections (1) and (2) by misrepresentation, or by fraud. In other words, if transfer has been effected after obtaining permission of the Deputy Commissioner under Section 49 of the said Act then such transfer can be annulled by the State Government in the manner provided under Sub-section (5) of Section 49 of the said Act." 17. In the same judgment, the learned Judge at paragraph 14 has held that "such transfer can be annulled only by the State Government under Sub-section (5) of Section 49 of the said Act if an application to that effect is made within 12 years, from the date of such transfer and if the State Government finds that consent of the Deputy Commissioner was obtained in contravention of Sub-sections (1) and (2) by misrepresentation or fraud." [emphasis by this Court] 18. This Court respectfully agrees with the findings and observations of M.Y. Eqbal, J., and similarly holds that in the instant case none of the ingredients, which are sine qua non for attracting the provisions of Section 49(5), were prevalent and, therefore, the entire proceeding was hopelessly misconceived. Moreover, and at the risk of repetition, the pleadings and documents contained in this case show that the application for transfer ended in a valid sanction given by the Deputy Commissioner and there is nothing on record to show that fraud was practiced upon him. Moreover, the sum of Rs. 4,200/- in the year 1947 was a huge sum of money which was absolutely adequate and reasonable for transfer of 3.25 Acres of land and that too in a suburb, like Lohardaga. 19. For the same reason therefore, the arguments of Mr. Pradip Modi, learned G.P. I to the effect that "Bhuinhari" land can also be subject-matter of Section 71-A is hopelessly misconceived. 20. Finally, neither a Land Reform Deputy Collector nor an Additional Collector could have ordered restoration of land in the proceedings-the said power being an exclusive prerogative of the State Government under Section 49(5) of the said Act which is also subject to limitation of 12 years. 21. 20. Finally, neither a Land Reform Deputy Collector nor an Additional Collector could have ordered restoration of land in the proceedings-the said power being an exclusive prerogative of the State Government under Section 49(5) of the said Act which is also subject to limitation of 12 years. 21. For all the reasons stated above, therefore, it is held that the impugned orders suffer from want of jurisdiction, are wholly misconceived, illegal, irrational and arbitrary. The impugned orders are accordingly quashed. In that view of the matter the writ application must succeed and it is accordingly allowed to do so. The writ petition is allowed. No order as to costs.