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2014 DIGILAW 192 (JHR)

Bhola Oraon v. State of Bihar(now Jharkhand)

2014-01-30

N.N.TIWARI

body2014
JUDGMENT By Court: In this application, the petitioners have prayed for quashing the order dated 24.05.1997 passed by learned Commissioner, South Chhotanagpur Division, Ranchi in SAR Revision no.243 of 1986, whereby learned Commissioner has set aside the order dated 18.3.1986 passed by learned Additional Collector, Lohardaga in SAR Appeal no.64 R 15 of 1978-79. 2. The short facts of the case is that the land of Khata no.115/44 of village-Merle, P.S. Kisko, Thana no.63, District-Lohardaga (old district-Ranchi) was recorded in the name of Temba Oraon @ Yakub Kujur and Aijub Oraon, both sons of late Punia Oraon. The said recorded tenants had transferred land of Khata no.115/44, measuring total area 7.33 acres in favour of one Kristopal Kujur by virtue of registered sale deed dated 7.9.1936. Kristopal Kujur, thereafter, came in possession of the land and his name was mutated in the office of ex-landlord and rent receipts were also granted to him by ex-landlord. Kristopal Kujur subsequently sold the said land to Sania Uraon, grand father of the petitioners and father of Banda Uraon and Khadi Uraon by virtue of registered sale deed dated 18.6.1940. The tranferees got their names mutated in the office of ex-landlord and paid rent of the said land and rent receipts were granted to them. 3. After vesting of the estates by virtue of the provisions of the Bihar Land Reforms Act,1950, the petitioners' names were entered in the revenue register i.e. register-II and they have been paying rent since then. The aforesaid land is in continuous peaceful possession of petitioners' family. 4. In the year 1977, a report was called for from the Circle Inspector, Kisko. Without making any enquiry and without properly going through the revenue records, he submitted perfunctory report and on that basis a proceeding under section 71A of Chhotanagpur Tenancy Act(hereafter referred to as the 'Act') was initiated by the Special Officer, Scheduled Area Regulation, Kisko (Lohardaga) being Land Restoration Case no.8 of 1976-77. 5. The petitioners were given notice. They had appeared and filed their objection, inter alia, challenging maintainability of the SAR case before learned Special Officer. It was stated that the transaction was of the year 1940 between two members of Scheduled Tribe and at that time, permission of the Deputy Commissioner was not required in law. 5. The petitioners were given notice. They had appeared and filed their objection, inter alia, challenging maintainability of the SAR case before learned Special Officer. It was stated that the transaction was of the year 1940 between two members of Scheduled Tribe and at that time, permission of the Deputy Commissioner was not required in law. The transaction was, thus, perfectly valid and legal and it does not attract the provisions of section 71A of the Act. 6. It has been submitted that the respondent no.5 in that grab, wanted to nullify the said registered sale deed of 1936 after about 40 years. Learned Special Officer has no jurisdiction to enter into and decide the issue of validity of the sale deed. The proceeding is wholly without jurisdiction and the application for restoration is not maintainable. 7. Learned Special Officer without appreciating the said objection and the facts and law involved in the matter, erroneously allowed the application for restoration holding that the said transaction was fraudulent and illegal. 8. Against the said order, the petitioners had filed appeal before learned Additional Collector, Lohardaga being Revenue Appeal no.64 R 15/1978-79. 9. Learned Appellate court heard both the parties and considered the facts and documents on record and held that the recorded tenant had sold their land long back in 1936 in favour of the members of Scheduled Tribe and on that basis rent receipts were granted by the State continuously in favour of the petitioners. The respondent no.5 has sought to assail the said sale deeds dated 7.9.1936 and 18.6.1940 alleging that the same are fabricated. Learned Special Officer, has no jurisdiction to declare a sale deed forged and fabricated. The civil court is the competent court to decide such issue. Learned appellate court set aside the order of learned Special Officer dated 5.8.1978 and allowed the appeal. 10. The applicant's father-Aijub Oraon filed revision against the said order, in the court of Commissioner, South Chhotanagpur Division being SAR Revision no.243 of 1986. 11. Learned Commissioner by the impugned order has set aside the order of appellate court and observed that the applicant's father is an Adivasi, he is the recorded tenant. He has alleged that he has been fraudulently dispossessed. The case, thus, comes within the ambit of section 71A of the Act. 12. The petitioners have challenged the said order dated 24.5.1997 passed by learned Commissioner. He has alleged that he has been fraudulently dispossessed. The case, thus, comes within the ambit of section 71A of the Act. 12. The petitioners have challenged the said order dated 24.5.1997 passed by learned Commissioner. It has been contended that the order is contrary to law and is wholly illegal and without jurisdiction. Learned Commissioner has failed to take into consideration that there was no restriction for transfer of land between the members of scheduled tribe within the same police station in the year 1936. Permission of the Deputy Commissioner was not required. Condition for taking permission was introduced by Chhotanagpur Tenancy Amendment Act, 1947. The petitioners' father by virtue of purchase had been continuous peaceful possession of the land without any objection from any quarter. He paid rent to the ex-landlord and after vesting of the land in the State to the revenue department. After death of their father, they have been in peaceful possession of the land and have been paying rent continuously and rent receipts are being granted to them. Learned Special Officer has no jurisdiction to decide the validity of the sale deed or declare the sale deed as fabricated. The order of learned Commissioner is, thus, wholly erroneous and unsustainable and is liable to be set aside. 13. The respondents have opposed the writ application and supported the impugned order. It has been submitted that the land belongs to the members of the Scheduled Tribe. The same was fraudulently acquired by Kristopal Kujur. The sale deed is fraudulent and invalid and, as such, the said transaction comes within the ambit of proceeding u/s. 71A of the Act. There is no error in the impugned order of learned Commissioner. The writ application is liable to be dismissed. 14. I have heard learned counsel for the parties and considered the facts and material on record. I also perused the order passed by the courts of Special Officer, appellate court and the impugned order of learned Commissioner, South Chhotanagpur Division. 15. In the instant case, execution and registration of the sale deed in favour of Kristopal Kujur dated 7.9.1936 is not denied and the subsequent execution of sale deed dated 18.6.1940 in favour of petitioners' grand father-Sania Uraon by the private respondents has also not been denied. 15. In the instant case, execution and registration of the sale deed in favour of Kristopal Kujur dated 7.9.1936 is not denied and the subsequent execution of sale deed dated 18.6.1940 in favour of petitioners' grand father-Sania Uraon by the private respondents has also not been denied. Restoration under the provision of section 71A of the Act has been claimed on the ground that the sale deeds were fabricated and invalid. Learned Special Officer accepted the same and held that the transactions were fraudulent and the sale deeds were invalid as the petitioners failed to establish payment of consideration and valid execution of the sale deed. Learned Additional Collector, on appeal, reversed the order of learned Special Officer holding that the issue raised in the application regarding declaration of sale deed as invalid and fabricated can be decided only by the civil court. Learned Commissioner by its impugned order has set aside the appellate order on the ground that the applicant's father-Aijub Oraon (respondent no.5) was an Adivasi and he is recorded tenant and he alleged fraudulent transfer and dispossession. 16. Though section 71A of the Chhotanagpur Tenancy Act is a beneficent provision and has been enacted for welfare of the members of the Scheduled Tribe, the same does not exclude the operation of other laws and confers jurisdiction of the civil court on the special officer or any other revenue officer. Whether a registered sale deed is duly executed or is a valid document or fabricated document is a cause of civil nature and any dispute relating thereto is to be adjudicated and decided by the competent civil court. Learned Special officer or any revenue officer under the provisions of section 71A of CNT Act cannot adjudicate upon or decide such issue only because the applicant's father- Aijub Oraon is an Adivasi. 17. Learned appellate authority had rightly held that the said issue cannot be decided in a proceeding under section 71A of the Act. Learned Divisional Commissioner erroneously interfered the scope of the said provision and committed serious error in reversing the order of the appellate authority. 18. The impugned order dated 24.05.1997 passed in SAR Revision no.243 of 1986(Annexure-8) by learned Commissioner, South Chhotanagpur Division is wholly illegal and without jurisdiction. The said order is hereby quashed. The order of learned appellate authority is restored. 19. This writ application is allowed. 18. The impugned order dated 24.05.1997 passed in SAR Revision no.243 of 1986(Annexure-8) by learned Commissioner, South Chhotanagpur Division is wholly illegal and without jurisdiction. The said order is hereby quashed. The order of learned appellate authority is restored. 19. This writ application is allowed. However, there shall be no order as to costs. Application allowed.