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2007 DIGILAW 517 (JHR)

Etwa Oraon v. Kusum Devi

2007-06-28

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2007
JUDGMENT 1. Heard learned Counsel for the parties. 2. The order dated 21.06.2004, passed in C.W.J.C. No. 2648 of 2000 with C.WJ.C. No. 1500 of 2000, by learned Single Judge is under challenge in this appeal. 3. The facts in brief are that Sanicharwa Oraon and Bhokre Oraon were the recorded Raiyats with regard to the land of Khata No. 135 situated in village Gari. In 1941 they applied to the Deputy Commissioner, seeking permission to transfer the said land in favour of one Bibi Taiba Khatoon as envisaged under Section 49 of the Chhotanagpur Tenancy Act which was accorded by the Deputy Commissioner under order dated 17.07.1941. The appeal filed against the said order of the Deputy Commissioner before the Commissioner was dismissed and thereafter, the draft agreement for transfer of the land was agreed on 18.02.1942. Subsequently, the sale deed was executed and registered on 17.03.1942 and the transferee came in possession thereof. 4. In 1949, the nature of the disputed land was changed and converted into Chapparbandi by virtue of the registered document and with permission of the competent authority. In 1975, Bibi Taiba Khatoon sold the land to one Madhusudan Choudhary who, in his turn, sold the same to the writ petitioner Smt. Kusum Devi. 5. The appellant Etwa Oraon filed an application under Section 71A of the Chhotanagpur Tenancy Act In the year 1990-91 for restoration of the land before the Special Officer, Scheduled Area Regulation, Ranchi which was contested by the writ petitioner but the Special Officer, allowed the restoration application in favour of the present appellant. Thereafter, the appeal preferred by the writ petitioner before the Deputy Commissioner and the revision before the Commissioner, South Chhotanagpur. Division were also dismissed. Thus, the three orders passed by the Special Officer, Scheduled Area Regulation, Deputy Commissioner and the Commissioner, South Chhotanagpur were challenged before this Court In C.W.J.C. No. 2648 of 2000 by Kusum Devi, the respondent No. 1 herein. 6. The learned Single Judge, by the impugned order, allowed the application and set aside the orders passed by the Special Officer, Scheduled Area Regulation, Deputy Commissioner and the Commissioner, South Chhotanagpur whereby, the land In question was restored In favour of the present appellant. 7. 6. The learned Single Judge, by the impugned order, allowed the application and set aside the orders passed by the Special Officer, Scheduled Area Regulation, Deputy Commissioner and the Commissioner, South Chhotanagpur whereby, the land In question was restored In favour of the present appellant. 7. Learned Single Judge, held that since the transfer of the land was made after due permission of the Deputy Commissioner under Section 49 of the Chhotanagpur Tenancy Act and thereafter, the nature of the land was converted Into Chapparbandi In 1975 and over which building were constructed, and therefore even If there was any violation of Section 49 of the Chhotanagpur Tenancy Act, the remedy does not lie Section 71A of CNT Act. It has further been held that in any view of the matter, the proceeding under Section 71A of CNT Act was hopelessly barred by limitation since it was filed after 50 years from the date of transfer. 8. Mr. Anoop Kumar Mehta, learned Counsel appearing for the appellant stressed on the points that no doubt the permission under Section 49 of the Chhotanagpur Tenancy Act was granted by the Deputy Commissioner for transfer of the land but it was with certain conditions such as (i) the area of land was to be converted into tank of the depth to which It will be dug; (ii) It was to be completed before rain breaks in 1943; (iii) penalty was to be paid in the event of breach of contract and It must be a substantial penalty; (iv) the draft was to be filed positively in the Court for his approval by 18.02.1942 failing which the appeal was to be allowed. These conditions were not fulfilled/compiled and therefore, the transfer of the land was not valid and therefore, the application under Section 71A of the Chhotanagpur Tenancy Act was maintainable. 9. Mr. Amar Kumar Sinha, learned Counsel appearing for the respondent No. 1 Smt. Kusum Devi has submitted that the learned Single Judge, relying on the decision of this Court In the case of Sri Rajendra Nath Kapoor v. The State of Bihar and Ors. reported in [1990 BLT (Rep. 9. Mr. Amar Kumar Sinha, learned Counsel appearing for the respondent No. 1 Smt. Kusum Devi has submitted that the learned Single Judge, relying on the decision of this Court In the case of Sri Rajendra Nath Kapoor v. The State of Bihar and Ors. reported in [1990 BLT (Rep. 352)] has rightly held that the application under Section 71A of the Chhotanagpur Tenancy Act was not maintainable in the facts and circumstances of this case since the land in question was transferred after taking permission of the learned Deputy Commissioner as envisaged under Section 49 of the Chhotanagpur Tenancy Act. 10. Mr. Amar Kumar Sinha, learned Counsel further submitted that In view of the Judgments of the Honble Supreme Court In the case of Jal Mangal Oraon v. Smt. Mira Nayak and Ors. with Jai Mangal Oraon v. Rita Sinha and Ors. , even if It Is held that the application under Section 71A of the Chhotanagpur Tenancy Act was maintainable, the same was hopelessly barred by limitation. 11. We find that the Division Bench of his Court In the case of Sri Rajendra Nath Kapoor (Supra) has held that the scope of Section 71A and Section 49 of the Chhotanagpur Tenancy Act are completely different. Section 71A is general provision whereas, Section 49 is specific provision and there Is specific provision for annulling transfer made with consent of the Deputy Commissioner, recourse must be had to that and an application under the general provision i.e. under Section 71A of the Act is barred. In view of the said decision, it appears that the arguments advanced by Mr. Anoop Kumar Mehta cannot be accepted and hence the same is rejected. Therefore, the learned Single Judge rightly held that application under Section 71A of the CNT Act was not maintainable. 12. In view of the decision of the Supreme Court In the case of Jai Mangal Oraon (Supra), the application for restoration filed by the applicant after about 50 years, is held to be hopelessly barred by limitation. 13. Consequently, we hold that the learned Single Judge has rightly allowed the writ application and set aside the orders passed by the concerned authorities whereby, the lands were ordered to be restored In favour of the present appellant. 14. Accordingly, having found no merit, this letters patent appeal is dismissed.