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2009 DIGILAW 382 (JHR)

Rajiv Kumar Tulsyan v. State of Jharkhand

2009-03-18

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for issuance of an appropriate writ/order/direction in the nature of certiorari for quashing the order dated 10.10.2007 passed by the Commissioner North Chotanagpur Division, Hazaribagh in Land Restoration Appeal No. 132/2006 (as contained in Annexure-9) and order dated 27.7.2006 passed by the learned Additional Collector, Dhanbad i.e. Respondent NO.3 in Land Restoration Case No. 1/0607 (as contained Annexure-8). 2. The facts, in brief, are set out as under:- On 30.12.1984 permission was granted by Dy. Commissioner vide memo no. 105 of 1984 to the vendors to transfer the said land to the petitioners firm. Thereafter, a registered sale deed was executed in favour of the petitioner on 21.1.1985 followed by mutation in favour of the petitioner on 15.1.1990 and the petitioner is paying rent regularly and the rent receipts are being issued in .the name of the petitioner. 3. Respondent Nos. 4 to 6 filed an application on 3/4.5.2006 before the Additional Collector, Dhanbad for restoration of land on the ground that the petitioner has not complied with the terms and conditions. The Additional Collector, Dhanbad vide its order dated 27.7.2006 directed to restore the land in favour of the respondent nos. 4 to 6 on the ground that it was lying vacant. The petitioner preferred an appeal before the Revisional Authority i.e. the Commissioner, North Chotanagpur Division, Hazaribagh who was also pleased to dismiss the appeal. 4. The main contention raised by Sri Anil Kumar Sinha, learned Senior Counsel for the petitioner is as to whether the authority who passed the order was competent or they lacked jurisdiction to pass the order for restoration of land. The second contention raised is as to whether there is a clear cut violation of Section 49(5) of the Chotanagpur Tenancy Act and it is mandatory that the State Govt. can restore it if the application has been moved within a period of 12 years. The learned Senior Counsel further submits that there is no allegation of misrepresentation or fraud on which the land can be restored. 5. The counsel for the respondents submits that if there is violation of any terms and conditions it will automatically be restored. It is further contended that the land in question was lying vacant which will mean violation of the terms and conditions and thus, the same could be restored validly. 5. The counsel for the respondents submits that if there is violation of any terms and conditions it will automatically be restored. It is further contended that the land in question was lying vacant which will mean violation of the terms and conditions and thus, the same could be restored validly. He also refers to Section 49(3) of the Chotanagpur Tenancy Act to support his contention. 6. I have considered the rival. submissions, pleadings and also the impugned order under challenge. In the instant case the admitted fact remains that the transfer took place in 1984-85 after due permission of the Deputy Commissioner/Additional Collector as contemplated under Section 49(1)(A) of the C.N.T. Act for industrial purpose. Subsequently the said land was registered on 21.1.1985 by a registered sale deed followed by mutation in favour of the appellant On 15.1.1990. A restoration application was filed in the year 2006 by respondent No.4 before the Additional Collector for cancellation of permission and restoration of land, The learned authority below and in particular the Commissioner, North Chotanagpur vide its impugned order dated 16.10.2007 has neither dealt with the issue nor decided the question of law and 'has' only observed that the appellant contravened the condition of transfer for the purpose it was permitted and thus the Additional Collector being vested with the power of the Deputy Commissioner has rightly annulled the transfer. There is no pleading or argument that the appellant contravened the terms and conditions or committed any fraud or misrepresentation, instead the plea and the argument raised is that the land in question which was transferred for establishing Chemical Industry under Section 49 was still lying vacant. There is no dispute about the fact that the application has been filed after 22 years for cancellation of permission and restoration of land whereas under Section 49(5) the period of limitation prescribed for initiating such action and entertaining the application has been specified as 12 years from the date on which written consent is given by the Deputy Commissioner. 7. Section 49(5) is a special provision and under that special provision transfer can be annulled provided the ingredients laid down therein are fulfilled. 8. In the instant case none of the ingredients as provided u/s 49(5) are applicable which are sine qua non for invoking Section 49(5) of the C.N.T. Act. 7. Section 49(5) is a special provision and under that special provision transfer can be annulled provided the ingredients laid down therein are fulfilled. 8. In the instant case none of the ingredients as provided u/s 49(5) are applicable which are sine qua non for invoking Section 49(5) of the C.N.T. Act. It is further relevant to clarify that Section 49(5) 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 to the provisions of sub-sections 1 & 2 by committing misrepresentation or fraud. Even otherwise it sounds illogical that once the permission to transfer has been given by the Deputy Commissioner the subordinate authority can annul/cancel the transfer after 22 years. The word used in Section 49(5) that the State Government can annul is with a purpose since it was the Deputy Commissioner who had given the permission u/ss. 49(1) and (2) and thus the power to annul has to be at least with the Deputy Commissioner and or a higher officer of the State Government and cannot be by a Subordinate Officer in any case. There is total non-application of mind and the provisions under Section 49 of C.N.T. Act has not even been properly considered. 9. This issue has already been decided by this Court in 2003(2) BLJR 1593 and also in 2001 (1) JLJR page 225 wherein it was specifically held at paragraph-14 as under:- "such transfer can be annulled only by the State Government under subsection 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." 10. Considering the aforesaid facts and circumstances of the case and the settled law this Writ Petition is allowed and the impugned order dated 10.10.2007 is quashed.