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2008 DIGILAW 604 (JHR)

Bingul Sawaiyan Ho v. State of Jharkhand

2008-06-17

N.N.TIWARI

body2008
Order Narendra Nath Tiwari, J.-The petitioner, Bingul Sawaiyan Ho, wanted to lease out his land belonging to Khata No. 187, Plot No. 414, measuring an area 33 decimals of Mauja Gitilpi, Thana No. 580, District West Singhbhum In favour of Indian Oil Corporation, for a period of five years, for running a Petrol Pump (Fuel Retail Outlet). 2. The petitioner and the Indian Oil Corporation (for short 'lOC') entered into the agreement and settled with the terms. Accordingly, the lease deed was prepared. They wanted the lease deed to be registered and for that purpose; they presented the same before the District Sub-Registrar, West Singhbhum, Chaibasa on 21st November, 2006. By Letter No. 177 dated 24th November, 2006, the parties were informed that as the land belongs to a member of Scheduled Tribes, the same can be registered only after previous sanction of the Deputy Commissioner. 3. The petitioner, at the advice of lOC, had applied for grant of permission on 29th December, 2006 before the Deputy Commissioner, West Singhbhum, Chaibasa. 4. The Deputy Commissioner did not dispose of the petition dated 29th December, 2006. The petitioner claimed that the objection raised by the District Sub-Registrar by letter dated 24th November, 2006 is contrary to law and the same is liable to be quashed. 5. It has been contended that the lease agreement is only for five years and no sanction of the Deputy Commissioner is required. The objection raised by the respondents is wholly frivolous and illegal. 6. Mr. Manjul Prasad, learned S.C. (L&C), appearing on behalf of the respondents contested the petitioner's claim and supported the order passed by the District Sub-Registrar, Chaibasa dated 24th November, 2006. Learned counsel submitted that Chotanagpur Tenancy Act (for short 'CNT Act') is a beneficial legislation and its object is to protect the rights of the members of Scheduled Tribes and Scheduled Castes against the acquisition of the land from the hands of unscrupulous persons. Section 46(1) of the CNT Act read with its proviso prohibits any transfer of right in land belonging to a member of the Scheduled Tribes and Scheduled Castes without previous sanction of the Deputy Commissioner. It has been contended that by way of lease, there is transfer of right in land, which is not permissible without permission of the Deputy Commissioner. 7. I have heard learned counsel for the parties. 8. Mr. It has been contended that by way of lease, there is transfer of right in land, which is not permissible without permission of the Deputy Commissioner. 7. I have heard learned counsel for the parties. 8. Mr. Srijit Choudhary, learned counsel, appearing on behalf of the petitioner, submitted that the order of the District Sub-Registrar, directing the petitioner to obtain sanction of the Deputy Commissioner for the purpose of registration of lease for five years is wholly arbitrary and illegal. No permission for registration of lease for a period of five years even in respect of the land belonging to the members of Scheduled Tribes is required. Learned counsel referred to sub-section (1) of Section 4.6 of the CNT Act in support of his contention. He has further submitted that the lease is not transfer of right within the meaning of proviso to subsection (1) of Section 46. Section 46(1) does not provide for any permission for the lease up to five years of any raiyat belonging to the members of Scheduled Tribes. He interpreted the terms 'transfer'. He submitted that for the purpose of these provisions of the Chotanagpur Tenancy Act, 'transfer' has different meanings, as has been held in the different decisions of the Hon'ble Supreme Court and this Court. 9. Learned counsel firstly referred the decision of the Hon'ble Supreme Court in the case of Pandey Orson vs. Ram Chander Sahu & Ors.[ AIR 1992 SC 195 ]. Learned counsel contended that the Apex Court held that it also contemplates a situation where possession has passed from one to another. He further relied on the decision of the Full Bench of the Patna High Court in Smt. Bina Rani Ghosh vs. Commissioner, South Chotanagpur Division & Ors. [1985 BL T (Rep.) 279(FB)) and submitted that the word "transfer" used in Section 71 (A) is neither defined in the said section nor anywhere else in the Act. In the context this word laid in Section 71 (A) would leave little manner of doubt that it was intended to cover all transfers actual or implied. Learned counsel also placed reliance on the decision of the Supreme Court in Fulchand Munda vs. State of Bihar & Ors. In the context this word laid in Section 71 (A) would leave little manner of doubt that it was intended to cover all transfers actual or implied. Learned counsel also placed reliance on the decision of the Supreme Court in Fulchand Munda vs. State of Bihar & Ors. [ 2008(2) JCR 1 (SC)] [ : 2008(1) JLJR (SC)309] and submitted that though the transfer by "a raiyat of his right in his holding or any portion thereof by mortgage or lease for the period exceeding five years IS not permissible, there is no such bar inentering into a lease agreement for a period less than five years. The impugned order of the District Sub-Registrar, refusing to register the lease deed of a period of five years to the land belonging to the petitioner without sanction of the Deputy Commissioner, is arbitrary and illegal. 10. In order to appreciate the rival contentions of the parties, it is necessary to see the relevant provisions of the CNT Act. Section 46 of the CNT Act runs as follows:-- "46. 10. In order to appreciate the rival contentions of the parties, it is necessary to see the relevant provisions of the CNT Act. Section 46 of the CNT Act runs 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 exceed 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 mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Cooperative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years: Provided further that,- (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 to 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; (b) an occupancy-Raiyat, who is a member of the Scheduled Castes or Backward Classes 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, will or lease to another person, who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the holding is situate; (c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government and partly by the Central Government and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward Classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person. (2) a transfer by a Raiyat of his right in his holding or any portion thereof under sub-section (1) shall be binding on the landlords. (3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognized as valid by any Court, whatever in exercise, or civil, criminal or revenue jurisdiction. (3-A) Notwithstanding anything con-tamed in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes. (4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the Raiyat into possession of such holding or portion in the prescribed manner. (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-section (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-section (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.(b) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case deem fit. (c) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof: Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the. transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor. Explanation.--1n this Section "substantial structure or building" means the structure or building of the value exceeding five thousand rupees on the date of holding inquiry, but it does not include such structure or building of any value the materials of which cannot be removed without incurring substantial depreciation in its value. (5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyaf's right in his holding or any portion thereof made bona fide before the first day of January 1908 ill the Chota Nagpur Division except the district of 'Manbhum', or before the first day of January 1909, in the district of 'Manbhum'. (5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyaf's right in his holding or any portion thereof made bona fide before the first day of January 1908 ill the Chota Nagpur Division except the district of 'Manbhum', or before the first day of January 1909, in the district of 'Manbhum'. (6) In this Section and in Section 47,- (a) "Scheduled Castes" means such castes, races or tribes as are specified in Part-II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950; (b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part-II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and (c) "Backward Classes" means such classes of citizens as may be declared by the State Government, by notification in the official Gazette, to be socially and educationally backward." 11. On reading of Section 46(1) with proviso (a), it is clear that an occupancy-Raiyat, who is a member of the Scheduled Tribes may transfer his right in his holding or a portion of his holding by sale, exchange, gift or will to another person, who is a member of Scheduled Tribes and, who is a resident within the local limits of the area of the police station within which the holding is situate. 12. Section 46(3) provides that no transfer in contravention of sub-section (1) shall be registered or shall be in any way recognized as valid by any Court, whatever, in exercise, of civil, criminal or revenue jurisdiction. Sub-section (3) of Section 46 of the CNT Act clearly provides that no transfer of land by a member of Scheduled Tribes in contravention of subsection (1) i.e. in favour of non-tribal shall be registered. 13. Mr. Choudhary, learned counsel, appearing on behalf of the petitioner, submitted that refusal of registration of the deed of lease of a land for a period of five years, even belonging to a member of the Scheduled Tribes is arbitrary and improper. No permission for such transfer by a member of Scheduled Tribes to even a non-tribal is required in view of the clear wordings of sub-section (1) Clauses (a) & (b) of Section 46. 14. In my view such interpretation cannot be accepted. No permission for such transfer by a member of Scheduled Tribes to even a non-tribal is required in view of the clear wordings of sub-section (1) Clauses (a) & (b) of Section 46. 14. In my view such interpretation cannot be accepted. The provision of Section 46 of the CNT Act cannot be read in piecemeal and in isolation. It has to be read as a whole for knowing the true spirit of the provision. 15. Section 46 read as a whole do not permit such interpretation. Section 46 read with proviso (1) unequivocally lays down the provision for sanction of any transfer of right by a member of Scheduled Tribes. No where in the Section, transfer of any right in land belonging to a member of the Scheduled Tribes is said to be permissible in favour of a non-tribal. It permits transfer of such rights only between the members of the Scheduled Tribes. Sub-section (3) of Section 46 clearly bars any registration of any transfer of the right in contravention of Section 46. 16. In view of the above, I see no arbitrariness or illegality in the impugned order of the District Sub-Registrar, Chaibasa refusing to register the said lease deed in favour of the Indian Oil Corporation. 17. The decisions relied upon by learned counsel for the petitioner in Pandey Ora on, Veena Rani Ghosh and Fulchand Munda (supra), interpreting the term 'transfer' in relation to and in the context of Section 71 (A) of the CNT Act. have no relevance to the facts and circumstances of the instant case. None of the decisions recognizes transfer of right in a land by any mode or means between a member of the Scheduled Tribes and a non-tribal. 18. I. therefore, find no merit in this writ petition, which is, accordingly, dismissed. 19. There is no order as to cost.