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2009 DIGILAW 850 (JHR)

Ramesh Pramanik v. State of Bihar

2009-05-28

AJIT KUMAR SINHA

body2009
ORDER The present writ petition has been preferred for quashing the order dated 7.3.89 (Annexure-3) passed by the land Reforms Deputy Commissioner (Respondent No. 4) in S.A.R. case No. 19 of 1988/89 by which the order of restoration has been passed in respect of the lands under khata No. 15, Plot No. 127, Thana No. 220 of Mauza Mahali Marup comprising an area of 0.52 acres in exercise of power under section 71/A of the Chotanapgur Tenancy Act, 1908 against the petitioner and in favour of the respondent Nos. 6 to 14 and for quashing the order dated 30.11.1991 (Annexure-5) passed by the Appellate Authority, the Deputy Commissioner (Respondent No. 3) in S.A.R. appeal No. 6 of 1989-90 by which the appeal preferred by the petitioner has been rejected and for quashing the order dated 9.2.99 (Annexure-6) passed by the Commissioner (respondent No. 2) in Singhbhum Revenue Revision No. 15/92 whereby the revision filed by the petitioner has been dismissed and the order passed by respondent No. 3 and 4 has been confirmed. 2. The facts in brief are set out as under:- According to the counsel for the petitioner the lands under Khata No. 15, Plot No. 127, Thana No. 220 of Mauza Mahali Marup comprising an area of 0.52 acres was purchased by the petitioner by oral settlement from the father of respondent No. 6 in the year 1950. It is further submitted that he has constructed a house and is residing with the family members. Saraikella Estate merged into State of Bihar in 1951 and thereafter C.N.T. Act became applicable. On coming to know that the land was recorded in the name of Kuar Ho and Gulab Ho in the recent survey operation the petitioner filed a Title Suit No. 79 of 1963 before the court of Munsif, Saraikella, against the recorded tenants which was decreed on 10.9.63 by way of a compromise petition. Pursuant to the compromise decree the petitioner got the land in question mutated in his favour and is paying the rent regularly. In 1988 a petition was filed by Circle Officer, respondent No. 5, Saraikella who was exercising the power of Deputy Commissioner for restoration of the land under section 71A of the C.N.T. Act on the basis of the entry made in revenue record. In 1988 a petition was filed by Circle Officer, respondent No. 5, Saraikella who was exercising the power of Deputy Commissioner for restoration of the land under section 71A of the C.N.T. Act on the basis of the entry made in revenue record. Accordingly S.A.R. case No. 19 of 1988-89 was registered in the name of Gulab Ho and Kuar Ho, though they were dead at that time and the petitioner on receipt of the notice filed a show-cause. Respondent No. 4 in S.A.R. Case No. 19 of 1988-89 passed the order directing the petitioner to give the vacant position of the land vide its order dated 7.3.89. The petitioner being constrained filed S.A.R. Appeal No. 6/89 challenging the order dated 7.3.89 before Respondent No. 3 who was pleased to dismiss the same vide its order dated 30.11.91. The petitioner thereafter filed Revision No. 15/92 and the Revisional Court also confirmed the order passed by the court below and dismissed the Revision vide its impugned order dated 9.2.1999 which is sought to be challenged in the present writ petition. 3. The main contention raised by the Shri Amar Kumar Sinha, learned counsel appearing on behalf of the petitioner is that a proceeding under section 71 A of the C.N.T. Act cannot be initiated in the name of a person who has already died. He has further contended that the C.N.T. Act was not applicable in Saraikella in the year 1950 since the merger took place in 1951 and thus Section 71 A of the C.N.T. could not have been invoked. He has also submitted that in the Title Suit filed by the petitioner a compromise decree was passed in the year 1963 itself and thus the order of restoration of the land in question under the provision of Section 71 A of the C.N.T. Act in favour of persons who have admittedly died was on the face of it void and illegal. 4. He has further submitted that Respondent Nos. 2 to 4 had no power or jurisdiction to interfere with the Title and possession of the petitioner which has been declared by a competent Civil Court in a regular suit. It has also been contended that the permission of the Deputy Commissioner was not required before 1951 in respect of the land in question since Saraikella Estate merged in 1951 only and the petitioner was in possession since 1950. It has also been contended that the permission of the Deputy Commissioner was not required before 1951 in respect of the land in question since Saraikella Estate merged in 1951 only and the petitioner was in possession since 1950. 5. Per contra, the learned counsel for the respondent has submitted that there was no irregularity or illegality in passing the order under section 71 A of the C.N.T. Act and there was concurrent finding by all the three authorities i.e. the S.D.O., Appellate Authority as well as the Revisional Authority on merits and thus this writ petition was liable to be rejected. It has further been submitted that the Title Suit was collusive in nature and the compromise entered into was also collusive and the possession was illegal since the land in question was recorded in the name of Scheduled Tribe members and thus the authorities below rightly proceeded to file S.A.R. Case No. 19/1988-89. It has further been submitted that there is no documentary proof or evidence except the statement of oral purchase and not even a chit of paper has been filed to support the contention that the petitioner was in possession since 1950. It has further been submitted that the land in question was found transferred illegally in contravention to Section 46 of the C.N.T. Act by way of collusive Title Suit followed by compromise in the year 1963 which was illegal, invalid and not binding on the respondents. 6. I have considered the rival arguments and the pleadings as well as the concurrent findings by all the three authorities. It will be evident that there is not even a single averment or whisper or evidence to support the contention as to how the appellants came into possession of the land in question. Mutation does not give any right or title over the land. Assuming but not admitting that the construction was made subsequently by the petitioner but that by itself also does not establish a legal vested right in favour of the petitioner herein. From the entire record it is evident that no time, date or proof of construction of the house has been mentioned. Assuming but not admitting that the construction was made subsequently by the petitioner but that by itself also does not establish a legal vested right in favour of the petitioner herein. From the entire record it is evident that no time, date or proof of construction of the house has been mentioned. It is further well settled that there is clear restriction on transfer of the rights by the Raiyats under the C.N.T. Act and thus the oral settlement or a gift is neither valued nor permitted and the same is in contravention of Section 46(1) of the C.N.T. Act and such transfer are held to be illegal and not valid. 7. I find force in the contention raised on behalf of the respondents that as a matter of fact there was no transfer of lands of Khata No.15 of plot No.127 comprised in area of 0.52 acres during 1950 and the said year has been invented to defraud the recorded owners who are admittedly aboriginal and it was equally a fraud on court to have an illegal decree in favour of the petitioner. The respondents have at para 10 of their counter affidavit have rightly submitted as under: “10. That it is humbly stated and submitted that on this score it is equally important to mention here that prior to filing of the aforesaid T.S. No. 79/63, there is no iota of documents with the petitioner which will prove that the said lands was under the possession of the Petitioner since 1950. Further even prior to 1950 even if assuming though not admitting, that the C.N.T. Act was not applicable to Seraikella Sub-Division even then such transfer (Oral) was ever barred as per Seraikella Record of Right of 1925-27 as contained in Section 5(Clause 5) where it has been specifically mentioned that no transfer either by sale or in any manner will be recognised by any court unless the same is duly approved by the Ruling Chief and on this score also the transfer was void under law. Hence even on considering the provisions of Seraikella Record of Right which was prevailing prior to promulgation of C.N.T. Act the said transfer was illegal.” 8. Hence even on considering the provisions of Seraikella Record of Right which was prevailing prior to promulgation of C.N.T. Act the said transfer was illegal.” 8. The compromise in the Title Suit No. 79/63 filed by the petitioner is on the face of it collusive and even otherwise cannot be given credence in absence of the Deputy Commissioner being a party to it. A compromise regarding transfer of the rights of raiyati land in contravention to the provision of Section 46 (3) A of the C.N.T. Act is illegal and invalid. 9. The fact remains that no such plea of death of the recorded owner was taken by the petitioner in S.A.R. Case No.90/88-89. The contention that the recorded owner died 25 years back will also stare at the petitioner itself proving the foundation of the Title Suit No.79/63 as equally forged and a nullity. Be that as it may, in any case during the pendency of S.A.R. Appeal No.6/89 the heirs and successors of the recorded owner were substituted. The original case was filed based on the report given by the Circle Officer that the respondents are Khatiyani Raiyats and thus the petitioner has no legal right or claim over the land in question in the year 1964 and even if the petitioner herein was in possession, his name ought to have been recorded in the survey of 1964. 10. It is not in dispute that the respondents name has been recorded in the record of right prepared in the year 1964 and if the contention of the petitioner that they were in possession was correct, then their name should have been recorded in the survey of 1964. The petitioner has nowhere mentioned as to when the house has been constructed and whether the construction took place before or after coming into force of the Scheduled Area Regulation, 1969. It appears that the construction of house must have taken place after 1969 otherwise the petitioner would have naturally taken the plea to get the benefit under second proviso of Section 71-A of the C.N.T. Act. It is thus apparent that the lands in question have been transferred in contravention of Section 46 of the C.N.T. Act and no substantial structure existed before 1969 nor there are any pleadings to that effect to support the contention. It is thus apparent that the lands in question have been transferred in contravention of Section 46 of the C.N.T. Act and no substantial structure existed before 1969 nor there are any pleadings to that effect to support the contention. The petitioner got the signature of tribals (aboriginals) in the compromise petition by exercising fraud and such transfer are illegal and violates Section 46 of the C.N.T. Act. The petition for restoration has been filed within a period of 30 years from the date of transfer and thus it is within the period of limitation as prescribed and the learned Court below consistently and rightly ordered for restoration of the land in question which requires no interference. 11. The respondents are khatiyani raiyats which is confirmed from the report of the Circle Officer and the consistent findings of the statutory authorities concerned. The petitioner has no right or title to claim the land and his possession by way of compromise in Title Suit No.79 of 1963 has no value in the eyes of law and it can be conclusively termed as collusive since the Deputy Commissioner who statutorily required to be made party was not made party and such compromise which transfers the right of the raiyati land in contravention to the provision as envisaged under Section 46 (3) (a) of the C.N.T. Act is on the face of it invalid and illegal. 12. Considering the aforesaid facts and circumstance of the case, this writ petition being devoid of any merit is accordingly dismissed.