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Jharkhand High Court · body

2017 DIGILAW 1999 (JHR)

Shanti Sinha v. State Of Jharkhand

2017-11-20

RAJESH SHANKAR

body2017
ORDER Rajesh Shankar, J. – W.P.C. No. 507 of 2006 has been filed for quashing the part of the order dated 07.03.2005/16.05.2005 passed by the Commissioner, South Chotanagpur Division, Ranchi in S.A.R Revision No. 28 of 2004 (Annexure-4 to W.P.C. No. 507 of 2006), order dated 11.06.2004 passed by the Additional Collector, Ranchi in S.A.R Appeal No. 9(R)15/2003-04 (Annexure-3 to W.P.C. No. 507 of 2006) and also the order dated 15.03.2003 passed by the Land Reform Deputy Collector-cum-Special Officer, Ranchi in S.A.R. No. 294 of 1981 (Annexure-2 to W.P.C No. 507 of 2006) whereby, the Courts below have rejected the application, appeal and revision respectively under Section 71-A of the Chota Nagpur Tenancy Act (in short the C.N.T. Act) for restoration of the land in question. The private respondents have also filed W.P.(C) No. 5458 of 2005 challenging the same orders. 2. Since both the writ petitions arise out of the same order(s), these are being disposed of by this common judgment. W.P.(C) No. 507 of 2006 has been taken as a leading case for disposal of both the writ petitions. 3. The factual background of the case is that the father of the private respondents filed land restoration case vide S.A.R Case No. 294 of 1981 under Section 71-A of the C.N.T. Act for restoration of the land under Khata No. 16, Plot Nos. 657 and 658, situated at Village-Kathargonda, P.S-Gonda, District-Ranchi (hereinafter referred to ''as the said land'') which was allowed on 10.06.1983. The petitioner filed appeal being S.A.R. Appeal No. 89 of 1983-84 before the Additional Collector, Ranchi who vide order dated 22.05.1986, remanded the matter to the original Court mainly on the ground that there was substantial structure on the land. The petitioner filed S.A.R Revision No. 380 of 1986 before the Divisional Commissioner, South Chotanagpur, which was also dismissed on 08.12.1986. Thereafter, the petitioner preferred a writ petition before Ranchi Bench of the Patna High Court being C.W.J.C. No. 273 of 1987(R) which was remanded to the Court below vide order dated 27.11.1996 for fresh hearing of the matter after taking into consideration the third proviso to Section 71-A of the C.N.T. Act. The petitioner filed L.P.A, but the same was withdrawn on 20.08.1997. The petitioner filed L.P.A, but the same was withdrawn on 20.08.1997. Thereafter, Civil Review No. 64 of 1997 was filed, wherein vide order dated 14.12.1999, the word "third proviso" mentioned in the order dated 27.11.1996 was modified as "second proviso" to Section 71-A of the C.N.T. Act. In compliance of the order dated 27.11.1996, the S.A.R. Officer vide order dated 15.03.2003, directed the petitioner to pay compensation to the respondent @ Rs. 18,000/- per Katha of the aforesaid land. The petitioner again preferred appeal before the Court of the Additional Collector, Ranchi being S.A.R. Appeal No. 9 R 15 of 2003-2004 and the private respondents also preferred appeal being S.A.R Appeal No. 22 R 15 of 2003-04. Both the appeals were dismissed on 11.06.2004. The petitioner and the private respondents thereafter filed revision applications being S.A.R Revision No. 28 of 2004 and S.A.R Revision No. 31 of 2004 respectively before the Commissioner, South Chotanagpur Division, Ranchi. Both the revisions applications were heard together and dismissed on 16.05.2005. Thereafter, the petitioner deposited the amount of compensation before the learned Court below and is now praying for refund of the amount of compensation so deposited. 4. The learned Sr. Counsel appearing on behalf of the petitioner submits that the petitioner had purchased the land in question by way of registered sale deed on 14.01.1958 from Saudamandi Devi, wife of Late Maharaja Pratap Uday Naht Sahahdeo and a house was constructed upon it prior to 1969 and thereafter she has also been paying rent thereof in the Circle Office and also the municipal tax to the Ranchi Municipal Corporation. The petitioner has got electric connection in the house since 30.12.1960. It is further submitted that Khatiyani Raiyat had surrendered the said land by way of registered deed in the year 1940 itself whereas the restoration application was filed in the year 1981 i.e. after 40 years of dispossession. 5. The learned Sr. Counsel for the petitioner puts reliance on the judgment of the Hon''ble Supreme Court rendered in the case of Jai Mangal Oraon v. Meera Nayak reported in (2000)5 SCC 141 and submits that the restoration application itself should not have been entertained after 30 years from the date of dispossession. 6. The learned Sr. 5. The learned Sr. Counsel for the petitioner puts reliance on the judgment of the Hon''ble Supreme Court rendered in the case of Jai Mangal Oraon v. Meera Nayak reported in (2000)5 SCC 141 and submits that the restoration application itself should not have been entertained after 30 years from the date of dispossession. 6. The learned Sr. Counsel appearing on behalf of the private respondents submits that while invoking the "second proviso" to Section 71-A of the C.N.T. Act, it was incumbent upon the Courts below to make availability of an alternative holding to the members of the Scheduled Tribe before validating the illegal transfer. Moreover, the Courts below have erroneously fixed Rs. 18,000/- per Katha as compensation for 12 Kathas of land. It is further submitted that the ratio of Jai Mangal Oraon (Supra) is not applicable in such cases, which have already attained finality. In the present case, the compensation amount decided by the Court below has already been deposited. It is further submitted that neither prayer nor any pleading on the issue of limitation was made earlier during adjudication of W.P.(C) No. 273 of 1987 leading to passing of the order dated 27.11.1996. The petitioner also did not prefer appeal against the order dated 27.11.1996. Thus, at this stage, the issue of limitation cannot be raised. It is also submitted that once the issue of limitation has attained finality, the said issue is hit by Explanation (iv) of section 11 of the Civil Procedure Code and the same cannot be agitated by the petitioner again. 7. Heard the learned counsel for the parties and perused the materials available on record. It appears that the petitioner had purchased the land in question by way of registered deed of sale dated 14.01.1958 and, thereafter, constructed a house thereon. In support of her possession, the petitioner filed her correction slip issued vide Mutation Case No. 20(R)27 of 58-59 and also the electricity bills of the year 1960 before the Court of the Deputy Collector, Land Reforms, Ranchi. The private respondents filed a land restoration case being S.A.R. Case No. 294 of 1981 under Section 71A of the C.N.T. Act, which was allowed. However, in appeal, the Additional Collector remanded the matter to the Deputy Collector, Land Reforms mainly on the ground that there was a substantial structure on the said land. The private respondents filed a land restoration case being S.A.R. Case No. 294 of 1981 under Section 71A of the C.N.T. Act, which was allowed. However, in appeal, the Additional Collector remanded the matter to the Deputy Collector, Land Reforms mainly on the ground that there was a substantial structure on the said land. After dismissal of the revision petition by the revisional authority, the petitioner preferred writ petition before Ranchi Bench of the Patna High Court being C.W.J.C. No. 273 of 1987(R), which was decided on 27.11.1996. Paragraph 7 of the said judgment reads as follows: "7. From perusal of the appellate order and revisional order it appears to me that the revisional court also refused to interfere on the ground that the appellate court also remanded the matter to the lower court for valuation. It goes without saying that since the matter has been remanded back to respondent no. 4 it is expected that respondent no. 4 while deciding the question shall take into consideration proviso (3) to section 71-A of the said Act." 8. However, the order dated 27.11.1996 was reviewed in Civil Review No. 64 of 1997 to the extent that the word "third proviso" mentioned in the order date 27.11.1996 was substituted as "second proviso" to Section 71-A of the C.N.T. Act. Although an L.P.A was filed against the order passed in C.W.J.C. No. 273 of 1987(R), but the same was withdrawn. Thus, the order passed by the Writ Court attained finality. In view of the fact that the matter was remanded by the Appellate Court vide order dated 22.05.1986 under "second proviso" to Section 71-A of the C.N.T. Act on the point of existence of substantial structure on the land and the said order was also affirmed by Ranchi Bench of the Patna High Court in C.W.J.C No. 273 of 1987(R) holding, inter alia, that the authority while deciding the question, shall take into consideration the second proviso to section 71-A of the C.N.T. Act, the argument of learned Sr. Counsel for the petitioner that the restoration application was barred by limitation, is not tenable. Learned Sr. Counsel for the petitioner has also contended that the judgment of Jai Mangal Oraon (Supra) has been rendered subsequently and as such the ground of limitation was not urged on earlier occasion. This argument of the learned Sr. Counsel for petitioner is not acceptable. Learned Sr. Counsel for the petitioner has also contended that the judgment of Jai Mangal Oraon (Supra) has been rendered subsequently and as such the ground of limitation was not urged on earlier occasion. This argument of the learned Sr. Counsel for petitioner is not acceptable. The issue of limitation was very well available before the petitioner irrespective of the judgment of the Hon''ble Supreme Court rendered in the case of Jai Mangal Oraon (Supra), but the same was not raised in the earlier round of litigation and as such now on the basis of the judgment rendered in the case of Jai Mangal Oraon (Supra), the petitioner cannot be allowed to raise the issue of limitation at this stage, as the same is hit by the provisions of Explanation (iv) of section 11 of the Civil Procedure Code. As regards the argument of the learned Sr. Counsel for the private respondents that they are entitled to get an alternative holding of the equivalent value of the vicinity, on bare reading of the provision of "second proviso" to Section 71-A of the C.N.T. Act, it would be evident that two options are available to the transferee i.e. either to pay compensation, as may be determined by the Commissioner or to ensure availability of an alternative holding to the transferor/displaced person. The transferor cannot force the transferee to provide an alternative holding to him in all cases. As regards the other argument of the learned Sr. Counsel for the private respondents that the compensation fixed by the Courts below is not sufficient, on perusal of the impugned order of the L.R.D.C dated 15.03.2003, it appears that the learned Court below has decided the compensation of the said land as Rs. 18,000/- per Katha, however, the basis of such computation of the compensation has not been assigned. In the appeal, the Additional Collector while taking into consideration the claim of the private respondents about inadequacy of compensation, has held that had the claim been decided in the year 1986 itself, there would not have been any dispute with regard to the amount of compensation. The revisional authority has also taken the same view while deciding the adequacy of compensation. The revisional authority has also taken the same view while deciding the adequacy of compensation. The Courts below, however, have failed to take into consideration that till 2003 the compensation amount was not decided by any of the Courts and only in the year 2003 the compensation was decided. Thus, the Courts below ought to have taken into consideration the fact that the delay has not occurred due to the fault on the part of the private respondents, rather it was due to the pendency of the proceeding before the competent authority. On perusal of the second proviso to Section 71-A of the C.N.T Act, it would appear that the purpose of providing compensation is the rehabilitation of the displaced person and as such the same should be determined keeping in mind that the member of Scheduled Tribe, who has been displaced from any land, should get sufficient amount of compensation for his rehabilitation. If the reasoning given by the lower Court is accepted, the purpose for which the "second proviso" has been consciously put by the legislature in Section 71-A of the C.N.T. Act, will definitely get frustrated and no displaced person can get adequate compensation. 9. In view of the aforesaid discussions, W.P.C. No. 507 of 2006 is, hereby, dismissed and W.P.C. No. 5458 of 2005 is disposed of with a direction to the Commissioner, South Chotanagpur Division, Ranchi to fix the compensation of the land in question taking into consideration the Government rate of the land prevailing as on 15.03.2003 and to disburse it in accordance with law.