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2014 DIGILAW 358 (JHR)

Deosagar Singh v. State of Bihar

2014-03-06

N.N.TIWARI

body2014
JUDGMENT N.N. Tiwari, J. 1. In this writ petition, the petitioner has prayed for quashing the order dated 25.8.1998 passed by the Commissioner, South Chotanagpur Division, Ranchi respondent no. 2 in Lohardaga SAR Revision No. 385 of 1988 (Annexure-6), whereby learned Commissioner has dismissed the petitioners revision and upheld the order dated 11.10.1988 passed in SAR Appeal No. 20-R-15/80-81 (Annexure-4) whereby the appellate court had dismissed the appeal filed against the order dated 21.4.1980 passed by Sub-Divisional Officer, Lohardaga in SAR Case No. 164 of 1979-80 (Annexure-3). The petitioner has also prayed for quashing the said appellate order (Annexure-4) as weir as the order passed by learned Sub-Divisional Officer, Lohardaga (Annexure-3). 2. The short facts giving rise to this writ petition is that the respondent no. 5 Sukhram Mahli had filed an application under the provision of Section 71A of the Chotanagpur Tenancy Act before the Sub-Divisional Officer, Lohardaga praying for restoration of land of Khata No. 34, Plot No. 476 area 78 decimals of Village-Chow, P.S.-Senha, District-Lohardaga. The same was registered as SAR. Case No. 164 of 1979. 3. The petitioner had appeared in the said case and filed his reply stating, inter-alia, that there was no violation of Section 46 or any other provision of Chotanagpur Tenancy Act as the land in question was auction sold in execution of a certificate of sale of land in Case No. 131 of 1938-39. The Nazir of the Collectorate, Ranchi had given possession of the land to the auction purchaser-Manager, Masmano Encumbered Estate in the year 1939. The sale thereof was confirmed by order dated 18.11.1940. The auction purchaser, thereafter, settled the land in question to one Andu Thakur by virtue of Hukumnama dated 25.7.1941. The petitioner and his brothers purchased the said land from the said Andu Thakur by virtue of registered sale deed in the year 1975. There was no violation of Section 46 or any other provision of Chotanagpur Tenancy Act and the provisions of Section 71A of the Chotanagpur Tenancy Act is not attracted. 4. Learned Sub-Divisional Officer, without appreciating the said facts and law, passed order of restoration under Section 71A of the Chotanagpur Tenancy Act. 5. Against the said order, the petitioner had preferred appeal before the Additional Collector which was registered as SAR Appeal No. 20-R-15/80-81. Learned appellate court also upheld the order and dismissed the petitioners appeal by order dated 11.10.1988. 6. 5. Against the said order, the petitioner had preferred appeal before the Additional Collector which was registered as SAR Appeal No. 20-R-15/80-81. Learned appellate court also upheld the order and dismissed the petitioners appeal by order dated 11.10.1988. 6. The petitioner, thereafter, filed revision before the Commissioner, South Chotanagpur Division, Ranchi being Lohardaga SAR Revision No. 385 of 1988. Learned Divisional Commissioner also upheld the order of restoration but observed that the petitioner acquired title by adverse possession and the land be restored on payment of compensation. For that purpose, he remitted the matter to learned Special Officer-Sub-Divisional Officer for determination of compensation under third proviso of Section 71A of the Chotanagpur Tenancy Act. 7. The petitioner had challenged the said orders on the ground that there was no violation of Section 46 or any other provisions of Chotanagpur Tenancy Act and Section 71A is not applicable in the instant case. Learned counsel submitted that the land in question was auctioned in a certificate proceeding in execution of a decree which has not been assailed or held fraudulent by any court of law. The auction sale took place more than seven decades ago. The petitioner is subsequent purchaser and, as such, proceeding under Section 71A is not maintainable against him. 8. The State respondents have opposed the writ petition by filing counter affidavit. 9. However, in spite of service of notice by advertisement in the newspaper, respondent no. 5 has not appeared in the case. 10. Though in the counter affidavit the State has supported the order of learned Commissioner, they have not disputed the auction sale of the year 1939-40. 11. I have heard learned counsel for the parties and considered the facts and material on record. 12. Admittedly, the property was sold in auction in execution of a decree against the petitioner's father Raghu Choukidar long back in the year 1938-39. The land was, thereafter, settled by virtue of Hukumnama executed by auction purchaser-General Manager, Ward and Encumbered Estate as far as in 1941. The land was in possession of the settlee-Andu Thakur since thereafter. The legal heirs of Andu Thakur transferred the said land to the petitioner and his brothers by virtue of registered sale deed dated 3.6.1975. The petitioner and his brothers are in continuous possession since thereafter. The land has also been mutated in their names. 13. The land was in possession of the settlee-Andu Thakur since thereafter. The legal heirs of Andu Thakur transferred the said land to the petitioner and his brothers by virtue of registered sale deed dated 3.6.1975. The petitioner and his brothers are in continuous possession since thereafter. The land has also been mutated in their names. 13. In view of the above, the land cannot be said to be transferred in violation of Section 46 or any other provisions of Chotanagpur Tenancy Act or the same cannot be said to be a fraudulent transfer. The transaction took place in the year 1939-40. Section 71A of the Chotanagpur Tenancy Act has, thus, no application. More so, the application for restoration was filed after a lapse of about 40 years i.e. after an unreasonable delay and on that count also the application under Section 71A of the Chotanagpur Tenancy Act was not maintainable. 14. Learned Sub-Divisional Officer-cum-Special Officer, Scheduled Area Regulation, the appellate authority learned Additional Collector as also the Commissioner, South Chotanagpur Division, Ranchi in revision have not appreciated the said position of law and have passed wholly erroneous and illegal orders. 15. For the reasons aforesaid, the order dated 25.8.1998 passed by the Commissioner, South Chotanagpur Division, Ranchi in Lohardaga SAR Revision No. 385 of 1988 (Annexure-6), order dated 11.10.1988 passed in SAR Appeal No. 20-R-15/80-81 (Annexure-4) by learned Additional Collector as also the order dated 21.4.1980 passed by Sub-Divisional Officer, Lohardaga in SAR Case No. 164 of 1979-80 (Annexure-3) are quashed. 16. This writ petition is allowed.