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2014 DIGILAW 57 (JHR)

Hari Pada Bandopadhyay v. State of Bihar

2014-01-09

N.N.TIWARI

body2014
JUDGMENT By Court In this writ petition, the petitioner has prayed for quashing the (i) order dated 20.10.1999 passed by the Deputy Commissioner, Bokaro (Respondent no. 2) in R.A. Case No. 5/97, (ii) order dated 14.12.1989 and (iii) order dated 15.3.2000, passed by Anchal Adhikari, Chandankiyari, District-Bokaro (Respondent no. 4) in Land Restoration Case No. 44/87-88. 2. According to the petitioner, the land of Khata No. 33, measuring an area of 4.46 acres of Mouza-Simalkuri, P.S. Chandankiyari, District-Bokaro, was recorded in the name of one Nuna Manjhi in the survey record of rights. Khedan Manjhi had predeceased his father Nuna Manjhi. Kalla Manjhiain, widow of Nuna Manjhi was unable to cultivate the said land, she, therefore, had surrendered the land to the ex-landlord by a registered deed of surrender dated 16th March, 1940. The ex-landlord came in possession of the land. Subsequently, he settled the said land in favour of Rishikesh Bandopadhyay-father of the petitioner-by virtue of registered deed of settlement. The petitioner's father came in possession of the land remained in possession till his death. After death of the petitioner's father, the petitioner along with other descendants inherited the land. They have been in peaceful possession of the said land. In the year 1988, the respondent no. 4 on his own initiated a proceeding registered as Land Restoration Case No. 44/87-88. The proceeding was purportedly initiated under section 71 A of the Chhotanagpur Tenancy Act. In the said proceeding, notice was not served on the petitioner, though the land was in peaceful continuous possession of the petitioner and his family since 1940. The Anchal Adhikari, Chandankiyari proceeded with the case initiated under section 71 A of the C.N.T. Act though the village does not fall within the scheduled area notified under the provision of Bihar Scheduled Areas Regulation, 1969 and passed final order holding the petitioner's possession illegal and directing for restoration of the land in favour of the applicant-private respondent. The petitioner, thereafter preferred appeal before the Deputy Commissioner, Bokaro, on several grounds. Learned Deputy Commissioner without considering the grounds of appeal dismissed the petitioner's appeal by order dated 20.10.1999. 3. The petitioner has challenged the orders in this writ petition, mainly, on the ground that the land does not fall within the scheduled area and the provisions of section 71 A of the C.N.T. Act is not applicable. The entire proceeding is nonest and without jurisdiction. 4. 3. The petitioner has challenged the orders in this writ petition, mainly, on the ground that the land does not fall within the scheduled area and the provisions of section 71 A of the C.N.T. Act is not applicable. The entire proceeding is nonest and without jurisdiction. 4. It has been averred that the allegations made in the application for restoration at best attract the provision of section 46 (4-A) of the C.N.T. Act. But under that provision, the period prescribed for filing application for restoration of the land in case of dispossession is 12 years from the date of dispossession. Since the land was in possession of the petitioner and his predecessor-in interest since settlement of the same in 1940, the application filed for restoration in 1988 is barred by limitation. Further that surrender and settlement were made by virtue of registered documents in 1940 when the sanction of Deputy Commissioner was not required under law. The provision for permission was introduced by virtue of section 14 of Chhotanagpur Tenancy Amendment Act, 1947. There was no violation of the provision of C.N.T. Act in the aforesaid transactions and the settlement in favour of petitioner's father was valid and legal. 5. It has been submitted that without considering the said admitted factual and legal aspects, learned Land Restoration Officer as well as the appellate authority erroneously passed the impugned orders restoring land in favour of the private respondent. The said orders are wholly illegal and without jurisdiction. 6. The writ petition has been opposed by the respondents. 7. Learned J.C., to G.P V, appearing on behalf of State-Respondents and Mr. Atanu Banerjee, learned counsel appearing on behalf of respondent no. 5, supported the impugned orders and submitted that the orders are well considered and legal. There is no infirmity in the impugned orders. The petitioner has never earlier raised the point of maintainability of the proceeding on the ground that the land does not fall within the scheduled areas. The claims of the original applicants were contested by the writ petitioner on the ground of limitation in filing application for restoration as also on the ground that the application was not filed by any of the descendants and legal heirs of the recorded tenant and the Circle Officer had initiated the proceeding suo motu on the basis of report of Halka Karamchari. Since the case relates to restoration of land of the member of the scheduled tribe, there is no prescribed period of limitation for filing application for restoration of possession. The petitioner's claim was considered. It has been found that the transaction was suspicious. The petitioner could not produce any document before the Restoration Officer or before the Deputy Commissioner. Learned courts have passed the impugned orders after considering the said aspects. The orders are well considered. There is no error or illegality in the said orders. 8. I have heard learned counsel for the parties and considered the facts and materials on record. The impugned orders have been passed on the assumption that section 71 A of the C.N.T. Act is applicable in this case. 9. Section 71 A of the C.N.T Act was introduced by the Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation 1 of 1969). By the said Regulation, certain amendments were made in the C.N.T Act, Limitation Act and in the Civil Procedure Code. The scheduled areas were specified and declared under the provisions of the Schedule Area (Part A States) Order, 1950. The district of Bokaro was not declared as scheduled area under that provision. 10. The very preamble of Bihar Regulation of 1969 specified that those Regulations and Provisions are intended to amend certain laws to the scheduled area in the State. Section 71 A of C.N.T. Act was introduced by the said Regulation, which is applicable only in the Scheduled areas, notified under Section 2 of the Schedule Area (Part A States), 1950. Since Bokaro District and before its reorganization, district of Dhanbad were not declared scheduled area, the said provision of section 71 A of C.N.T. Act is not applicable in the area. The proceeding initiated by learned Land Restoration Officer under the provision of section 71 A of C.N.T Act is, thus, wholly without jurisdiction and the entire proceeding is vitiated in absence of jurisdiction. In view of the said inherent legal infirmity in the proceeding and in the impugned orders, the same cannot sustain and are thus, liable to be quashed. 11. Further, the finding of the learned Land Restoration Officer as well as the appellate authority that the transaction is suspicious is based on no valid reason. Admittedly, the surrender and settlement were registered documents executed in the year 1940. 11. Further, the finding of the learned Land Restoration Officer as well as the appellate authority that the transaction is suspicious is based on no valid reason. Admittedly, the surrender and settlement were registered documents executed in the year 1940. It is evident from Annexure-1, the registered deed of surrender dated 16th March, 1940 that the recorded tenant had surrendered the said land to the Ex-Landlord and the land came in possession of the Landlord. Subsequently, by virtue of the registered deed of settlement dated 19th March, 1940, the land was settled in favour of the petitioner's father. The said settlement is legal and valid. 12. Learned Land Restoration Officer as well as the appellate court have held the said documents bad and illegal mainly on the ground that there was no permission of the Deputy Commissioner for surrendering the land as required under section 72 of the C.N.T. Act. They lost sight of the fact that the provision requires permission of the Deputy Commissioner was introduced by way of Amendment Act, 1947, whereas the date of surrender was 16th March 1940 and no permission of the Deputy Commissioner was then required under law. 13. It is also pertinent to mention that the land claimed by the applicant-private respondent had gone out of his possession as far back as in 1940. The period of restoration of possession of land or annulment of transfer of the land of other than the scheduled areas is twelve years from the date of transfer of holding, as prescribed under section 46 (4A) of the C.N.T. Act. The said provision specifically prescribes that application for annulment of transfer can be filed within a period of 12 years from the date of transfer of holding. In view thereof, the application of the applicant-private respondent is barred by limitation. 14. The impugned orders have been passed without taking into consideration of the said legal aspects and are wholly erroneous and unsustainable in law. 15. In view of the above discussion, the impugned order (1) dated 14.12.1989, and (2) order dated 15.3.2000, passed in Land Restoration Case No. 44/87-88, by Anchal Adhikari, Chandankiyari, District-Bokaro, as also (iii) order dated 20.10.1999 passed in R.A. Case No. 5/97 are wholly illegal arbitrary and without jurisdiction and the same are hereby quashed. 16. This writ petition is allowed.