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2015 DIGILAW 473 (JHR)

Sautan Bala Devi v. State of Jharkhand

2015-04-15

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 20.01.2004 passed in Land Restoration Revision No. 69 of 1999, the present writ petition has been filed. 2. The brief facts of the case are that on 16.12.1993 an application under Section 46 of C.N.T. Act was filed claiming illegal dispossession from the land comprised in Plot No. 597. The original petitioner claimed that the name of his ancestors were recorded in the Revenue Record as Raiyats and they remained in possession of the land in question however, about 10 years before the application was filed, he was dispossessed from the land in question. Before the Sub-divisional Officer, sale-deeds dated 29.06.1981 and 13.05.1985 through which about 0.10 1/2 and 0.20 acres of land were acquired by the opposite parties, were produced by the opposite parties. The application was allowed and the appeal preferred by the respondents vide RAN Case No. 12/1998 was dismissed on 06.11.1999. Challenging the same, the opposite parties/respondents preferred Land Restoration Revision Case No. 69 of 1999. During the proceeding of the Revision Case, record from the Sub-divisional Officer was called and the Circle Officer was directed to inspect the site and submit report. 3. Heard the learned counsel for the parties. 4. The learned counsel for the petitioner submits that the petitioner and her ancestors remained in possession of land in question which is evident from the rent receipts which were issued upto the year, 2012. The opposite parties/respondents failed to produce any document except, rent receipts to claim that they came in possession of the land in question and thus, both the parties were claiming possession on the basis of the rent receipts. In view of the legal possession and the record of Register-II in which the name of the ancestors of the petitioner appear, the claim of the petitioner was rightly allowed by the two Authorities however, the Revisional Authority has erronesouly interfered with the findings of fact. It is further submitted that since the opposite parties have claimed on the basis of sale-deeds which were executed within 12 year of the dispossession of the petitioner, the application under Section 46 of the C.N.T. Act was rightly allowed. 5. As against the above, the learned counsel for the respondent nos. It is further submitted that since the opposite parties have claimed on the basis of sale-deeds which were executed within 12 year of the dispossession of the petitioner, the application under Section 46 of the C.N.T. Act was rightly allowed. 5. As against the above, the learned counsel for the respondent nos. 3 to 9 submits that in view of proviso to Section 46(4A) of the C.N.T. Act, since the application filed on 16.12.1993 was beyond the period of 12 years, the Revisional Authority has rightly dismissed the claim of the petitioner in so far as, the land comprised in sale-deed dated 29.06.1981 is concerned. 6. From the materials brought on record, it is apparent that the petitioner is the descendant of the original applicant. The Subdivisional Officer allowed the application of the original applicant recording a finding that the sale-deeds dated 29.06.1981 and 13.05.1985 were forged and fabricated. It is an admitted position that those sale-deeds are registered sale-deeds and the original applicant never filed a case seeking cancellation of the sale-deeds dated 29.06.1981 and 13.05.1985 and thus, the Subdivisional Officer seriously erred in law in disbelieving the sale-deeds produced by the opposite parties. It further appears that the Circle Officer submitted a report dated 20.10.2003 stating that over the land comprised in sale-deed dated 29.06.1981, one Budhan Mahto has constructed house with four rooms and a water borewell has also been found there. In the proceeding of Case No. 05 of 1993 the Revenue Karamchari has also reported that over the disputed land Budhu Mahto has constructed a house and he is residing over there. The Revisional Authority has found that the application was time barred in so far as, sale-deed dated 29.06.1981 is concerned. 7. In the proceeding of Case No. 05 of 1993 the Revenue Karamchari has also reported that over the disputed land Budhu Mahto has constructed a house and he is residing over there. The Revisional Authority has found that the application was time barred in so far as, sale-deed dated 29.06.1981 is concerned. 7. Section 46(4A) of the C.N.T. Act is extracted below: (4A) (a) “The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to subsection(1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to subsection(1): Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause(c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter. (b) If after holding the inquiry referred to in clause (a) of this subsection, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to subsection (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit. (c) If after holding the inquiry referred to in clause (a) of this subsection, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to subsection (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof. Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment Act, 1969 ( President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act validate such a transfer made in contravention of clause (a) of the second proviso to subsection (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding , as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor. Explanation- In this Section “substantial structurer or building” means the structure or building of the value exceeding five thousand rupees on the date of holding inquiry, but it does not include such structure or building of any value the materials of which cannot be removed without incurring substantial depreciation in its value.” 8. The Revisional Authority taking note of the date on which application was filed, that is, 16.12.1993 and the date of sale-deed with respect to 0.20 acres of land that is, 29.06.1981 rightly held that the application was barred by limitation and consequently, allowed the claim of the respondents except, the land comprised in sale-deed dated 13.05.1985. The reliance placed by the counsel for the petitioner on the statement made in the supplementary affidavit dated 07.02.2008 to impress upon the Court that the Petitioner has remained in possession, is without substance. In the application dated 16.06.1993 the original applicant himself has claimed dispossession and therefore, there is no question of rent receipts being issued to the original applicant or his descendants, thereafter. I find no infirmity in order dated 20.01.2004 and accordingly, the writ petition is dismissed.