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2012 DIGILAW 283 (JHR)

Jawa Kachhap v. State of Bihar

2012-02-23

POONAM SRIVASTAV

body2012
JUDGMENT Poonam Sri vasta v, J.-Heard Sri S.N. Prasad on behalf of the petitioner and Mrs. A.R. Choudhary on behalf of the contesting respondent. 2. The orders under challenge are dated 6th March, 1986 passed in SAR Case No. 138 of 1982-83 by respondent no. 4 and order dated 6th October, 1998 passed in Ranchi Revenue Revision No. 127 of 1987 by the Commissioner, South Chotanagpur Division, Ranchi. The prayer is for a direction in the nature of mandamus for restoration of land being R.S. Plot No. 606 of Khata No. 99, Village-Bagichatoli, Tupudana, P.S.-Hatia, District-Ranchi (hereinafter referred to as the 'disputed land'). 3. The claim of the petitioner is that the disputed land was her ancestral property and she was in cultivatory possession and also this is the only means of her livelihood. The petitioner submits that the disputed land was fraudulently transferred by virtue of a fictitious compromise in a suit in the year 1959. The petitioner's husband died during the pendency of the suit. She made an application for restoration of 30 decimals of the disputed property on 22.8.1982 under Section 71-A of the Chotanagpur Tenancy Act (hereinafter to be referred as the Act) before the Special Officer, Ranchi (vide SAR Case No. 138 of 1982-83). The claim' was on the basis that the land was a raiyati and cultivable land. The grievance was that the contesting respondent illegally took possession of the land without any permission from the Deputy Commissioner, Ranchi. SAR Officer was of the view that the possession of the contesting respondent was in violation of the provisions of Section 46 of the Act; Mahadeo Oraon was also one of the party in Title Suit. The findings given by SAR Officer was also that there was a petrol pump over the disputed land which should not have been constructed without permission of the Deputy Commissioner and that there was a substantial structure standing over the land prior to 1969. Thus, the petitioner was entitled for compensation for a sum of Rs. 20,000/-. An appeal was preferred before the Court of the Additional Collector, Ranchi, which was allowed on 6.1.1987 (Annexure-2 to the writ petition). The contesting respondent preferred a revision against the aforesaid order in appeal before the Commissioner, South Crotanagpur Division, Ranchi, vide Ranchi Revenue Revision No. 127 of 1987 and the same was decided in favour of the respondent. 20,000/-. An appeal was preferred before the Court of the Additional Collector, Ranchi, which was allowed on 6.1.1987 (Annexure-2 to the writ petition). The contesting respondent preferred a revision against the aforesaid order in appeal before the Commissioner, South Crotanagpur Division, Ranchi, vide Ranchi Revenue Revision No. 127 of 1987 and the same was decided in favour of the respondent. However, matter was remanded to the Court of the learned Special Officer SAR, Ranchi to fix the compensation under the second proviso of Section 71-A of the Act. The submission' of the learned counsel appearing on behalf of the petitioner is manifold; firstly that the revisional Court has relied upon a certificate issued by the Labour Welfare Officer to certify that there was an electricity connection in the name of Lalit Kumar & Co. in respect of a petrol pump standing on the disputed land, whereas no details about the land in question is mentioned in the certificate and, therefore, it could not be relied upon; secondly that there was no petrol pump on the disputed land and also assuming existence of petrol pump then it is not a substantial structure since the year 1961-62. It is also emphatically argued that the compromise decree in the suit was fraudulently obtained and, therefore, the grant of compensation treating the construction to be a substantial structure standing on the disputed land prior to 1969 is without any basis and, thus, the impugned orders are vitiated in law. Apparently the transfer of disputed land in the year 1959 by a compromise is nothing short of a fraud on the Court and also on the statute. Besides, the transfer is in contravention of the provisions of Section 46 of the Act. Learned counsel has placed reliance on a number of decisions; First decision relied upon is Ajay Metachem Ltd. vs. Commissioner, Chotanagpur Division, Ranchi & Others, 2001 (1) Jhr. CR 278 (Jhr.) and another decision is Rambriksha Gupta vs. State of Bihar & Ors., 2003(4) JCR 206 (Jhr.). These two decisions relate to the question of transaction in violation of the provisions of Section 46 of the Act and subsequent affirmance by compromise then it has an effect of playing fraud not only on the Court but against the statute. Third decision relied upon is Kesho Sao & Anr. vs. Additional Member, Board of Revenue & Ors., 2000(4) PLJR 787. Third decision relied upon is Kesho Sao & Anr. vs. Additional Member, Board of Revenue & Ors., 2000(4) PLJR 787. This decision is also on the question of fraudulent compromise and it was held that it can not be given effect to as it will amount to dispossessing the raiyat by fraudulent method and the last decision relied upon is Lal Phanindra Nath Sahdeo vs. State of Bihar & Ors., 2007(2) JLJR 136 . This decision deals with a case of forceful dispossession adopting illegal ways and means and, therefore, will come within the purview of transfer by fraudulent method contemplated under Section 71-A of the Act. 4. On the basis of these decisions, learned counsel emphasized that the Courts below have failed to take into consideration that the transfer is absolutely a fraudulent; the compromise decree is also a fraud on the statute and, therefore, the impugned orders are liable to be quashed. 5. Learned counsel appearing on behalf of the contesting respondent has controverted each and every arguments raised by Sri S.N. Prasad. Her argument is that the witnesses, who had deposed on behalf of the petitioner, have clearly admitted existence of petrol pump since the year 1961-62. Doman Mehta witness No.2 stated in his cross-examination that there is house and boundary wall. There was a petrol pump of which Sarad Babu was the Manager. This petrol pump is in existence since Hatia factory was established. The other two witnesses have also admitted existence of substantial structure since the year 1961-62. Counsel has pointed out portion of the revisional order to support her contention that the Commissioner had relied upon certain unequivocal assertion on behalf of the petitioner, such as from, the grounds of appeal before the Additional Collector and also the findings that the counsel appearing on behalf of the petitioner has not disputed existence of petrol pump, on the contrary the only argument is that it is not a substantial structure. In support of her contention reliance has been placed on a decision of the apex Court in the case of Jagvir Singh and others vs. State (Delhi Administration). (2007)5 Supreme Court Cases 359. The statement of facts as transpired during the hearing of a case and recorded in the judgment of the Court are conclusive of the facts so statl1d and it cannot be contradicted by affidavit, or other evidence in a subsequent proceeding. (2007)5 Supreme Court Cases 359. The statement of facts as transpired during the hearing of a case and recorded in the judgment of the Court are conclusive of the facts so statl1d and it cannot be contradicted by affidavit, or other evidence in a subsequent proceeding. Thus, the specific findings recording grounds of appeal, assertion on behalf of the witnesses and the submission of counsel on behalf of the petitioner recorded in the judgment cannot be disputed in a writ petition specially when no such contradiction has been pointed out at the stage of filing of the writ petition. The objection of the learned counsel is also on the question of limitation. The powers to restore possession to a tribal under section 71-A of the Act cannot be exercised after unreasonable delay. Lapse of 40 years was considered by the Apex Court far from anything reasonable. Reliance has been placed on a decision of the Apex Court in the case of Smt. Urmila Agarwala vs. Lav Kumar Agarwal & Others, 2004(4) JLJR 109. Another decision on the question of limitation is Etwa Oraon & Ors. vs. Karo Oraon & Ors., 2004(2) JCR 303 (Jhr.). 6. I have given careful consideration to the arguments advanced by the respective counsel; gone, through the records of the case as well as the pleadings exchanged in the instant writ petition. The contention of the learned counsel appearing on behalf of the petitioner to the effect that the Act is a beneficial legislation for the tribals and to safeguard their interest which are generally uneducated is absolutely correct, but every application for restoration can be allowed only in accordance with the provisions of the Chotanagpur Tenancy Act. In the instant case the findings of the Courts below is that the petrol pump was in existence since before. I have also examined the statement of the witnesses and the findings given by the Courts below. There is factual conclusion arrived at by the Courts below that there was a petrol pump in existence since the year 1961-62. There are other constructions standing over the disputed land and there is a house and boundary wall. Besides, the only objection on behalf of the petitioner was that it is not a substantial structure prior to 1969 and, therefore, question of compensation cannot be taken into consideration are matters, which are based on appraisal of evidence by the authorities. There are other constructions standing over the disputed land and there is a house and boundary wall. Besides, the only objection on behalf of the petitioner was that it is not a substantial structure prior to 1969 and, therefore, question of compensation cannot be taken into consideration are matters, which are based on appraisal of evidence by the authorities. So far the objection raised in respect of the certificate issued by the Labour Welfare Officer regarding electricity connection was neither rebutted before the Courts below nor any specific objection was raised. Besides, the specific admission in the grounds of appeal which is recorded in the judgment of the Commissioner itself, cannot be reopened in exercise of jurisdiction under Article 226 of the Constitution of India. The controversy was examined by three authorities prior to filing of the writ petition. The lapse of a long period claiming restoration is also apparent and, therefore, in my opinion the jurisdiction under Article 226 of the Constitution of India cannot be stretched so far to decide the writ petition as a regular First Appeal. I am in agreement with the submission of counsel appearing on behalf of the contesting respondent specially her objection that happenings in the Court as recorded in the judgment are conclusive of the facts so stated and cannot be contradicted by affidavit or other evidence, more so in a writ petition in exercise of extraordinary jurisdiction. In fact, the admission regarding existence of petrol pump was admitted before the Additional Collector as well was never challenged before the Courts below. The only emphasis was to the effect that a petrol pump is not a substantial structure and, therefore, no benefit can be gained, whereas the learned commissioner has recorded his finding on the basis of the definition of substantial structure under Section 71-A of the Act as provided in Explanation-I to the 3rd proviso:- "In this section "substantial structure or building" means structure or building the value of each on the day of initiation of inquiry, was determined by the Deputy Commissioner to Exceed Rs. 10,000/- but does not include structure of building of any value, the material of each can be removed without substantially impairing the value of." 7. Therefore, I am of the view that the findings of the Courts below are based on cogent reasonings and liable to be upheld. 10,000/- but does not include structure of building of any value, the material of each can be removed without substantially impairing the value of." 7. Therefore, I am of the view that the findings of the Courts below are based on cogent reasonings and liable to be upheld. I am also in agreement with the finding that the compensation of Rs. 20,000/- for 30 decimals of land appears to be on lower side and, therefore, the compensation is liable to be re-fixed as per the market value and, therefore, the matter has correctly been remanded to the SAR Officer, Ranchi. I am not inclined to interfere with the decision of the authorities below. 8. The writ petition lacks of merit and accordingly dismissed.