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Jharkhand High Court · body

2017 DIGILAW 2027 (JHR)

Shanti Bhut Kunwar Pahan v. State of Bihar

2017-11-24

S.N.PATHAK

body2017
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the parties. 2. Petitioner has approached this Court with a prayer for quashing order dated 31.1.1994/16.2.1994, passed in S.A.R. Case No. 14/79-80, passed by the Special Officer, S.A.R. Act (respondent no. 5); order dated 27.10.1995, passed in S.A.R. Appeal No. 48 R-15 of 1993-94, passed by Deputy Commissioner, Ranchi (Respondent No.3) as also the order dated 20.10.1998, passed in S.A.R. Revision No. 57/1996, passed by Commissioner, South Chhotanagpur Division, Ranchi (Respondent No.2). 3. This writ petition was earlier heard and dismissed vide order dated 27.3.2000 and has come up again pursuant to the order of the Division Bench dated 11.5.2000, passed in L.P.A. No. 171 of 2000 on the ground that said order was non-speaking one and requires fresh consideration. 4. After death of original writ petitioner Rajesh Bhut Kunwar Pahan, the legal heirs namely Shanti Bhut Kunwar Pahan (wife), Kalyan Bhut Kunwar and Anand Bhut Kunwar (sons) filed I.A. No. 4984 of 2016 with supplementary affidavit, which has been allowed on 15.9.2016. It further appears that after death of petitioner no. 1(ii) Kalyan Bhut Kunwar an I.A. No. 3409 of 2017 has been filed which has been allowed on 16.6.2017 substituting his legal heirs namely wife and two sons. 5. It is alleged that lands of Plot No. 309 under Khata No. 238, area-1.09 Acres, situated in Village-Samlong, P.S. Namkom in the district of Ranchi belongs to one Madhi Pahan, grandfather of the deceased petitioner. Said land was recorded in the Revisional Survey Settlement record of rights in the name of Madhi Pahan, grandfather of the deceased-petitioner as Bakast Bhuinhari Pahanai land. Said land was illegally transferred to the respondent no. 6 and to his predecessors-in-interest in contravention of Sections 46, 48 and 49 of the C.N.T. Act by, a registered deed dated 23.5.1934. Being aggrieved petitioner filed a petition under Section 71-A of the C.N.T. Act for restoration of land in his favour, which was numbered as S.A.R. Case No. 14/1979-80. After hearing the parties, the Special Officer, S.A.R. Act, vide order dated 29.4.1980, passed an order for restoration of land in favour of the petitioner and after the land was restored, delivery of possession in respect of the said land was given to the petitioner. Being aggrieved by the aforesaid order dated 29.4.1980, respondent no. After hearing the parties, the Special Officer, S.A.R. Act, vide order dated 29.4.1980, passed an order for restoration of land in favour of the petitioner and after the land was restored, delivery of possession in respect of the said land was given to the petitioner. Being aggrieved by the aforesaid order dated 29.4.1980, respondent no. 6 preferred an appeal before the Additional District Magistrate, Ranchi (Respondent No.4) who, after hearing the parties, remanded the case to the Special Officer, S.A.R. Act (respondent no. 5) for reconsideration. The Special Officer, after setting aside his order dated 29.4.1980, rejected application of the petitioner for restoration holding that the land cannot be restored. Since petitioner was put in possession of the land by effecting delivery of possession, the respondent no. 6 filed an application for delivery of possession which was however rejected vide order dated 5.10.1987 holding that there is no such provision under the C.N.T. Act. Being aggrieved by the aforesaid, the respondent no. 6 preferred an appeal before the Deputy Commissioner, Ranchi (respondent no. 3) being SAR. Appeal No. 47-R-28 of 1987-88. The respondent no. 3 ordered the learned Court below to consider the matter and further to give possession back to him, if necessary. Thereafter, without considering the matter, the Special Officer, vide his order dated 7.4.1988, ordered for delivery of possession of the land to respondent no. 6. Against the aforesaid order for delivery of possession of the land to respondent no. 6, petitioner filed an appeal before the Additional Collector, Ranchi being SAR. Appeal No. 51-R-15 of 1988-89 and the Additional Collector (respondent no. 4) vide his order dated 18.4.1991 observed that the lower Court should consider the matter. However, the Special Officer did not comply with the same and passed the order dated 31.1.1994/16.2.1994 with a direction to deliver possession of the land in favour of respondent no. 6. Against the said order of Additional Collector, Ranchi, petitioner preferred an appeal before the Deputy Commissioner, Ranchi being S.A.R. Appeal No. 48-R-15 of 1993-94 but the same was dismissed by order dated 27.10.1995. Petitioner preferred revision being S.A.R. Revision No. 57/1996 before the Court of South Chhotanagpur Division, Ranchi which was however dismissed vide order dated 20.10.1998. 6. Mr. H.K. Mahto, learned Counsel appearing for the petitioner submitted that the respondent no. Petitioner preferred revision being S.A.R. Revision No. 57/1996 before the Court of South Chhotanagpur Division, Ranchi which was however dismissed vide order dated 20.10.1998. 6. Mr. H.K. Mahto, learned Counsel appearing for the petitioner submitted that the respondent no. 6 has relied upon a Deed of Transfer which was allegedly registered on 23.5.1934, which is not a valid Deed as per the provisions of Section 49 of the C.N.T. Act in as much as the Deputy Commissioner, Ranchi has not given the written consent for reasonable and sufficient purposes. On perusal of the Deed, it is nowhere found that any purpose was sought for in the transfer and, therefore, the requirement of Section 49 of the C.N.T. Act remains unfulfilled and the same cannot be taken into consideration. Learned counsel further submitted that provision of Section 71-A of the CNT Act is applicable in case of contravention of Sections 48 and 49 of the CNT Act. Learned counsel further submitted that transfer of occupancy holding or Bhuinhari Tenure for certain purposes is permissible only for reasonable and sufficient purposes which are mentioned in Clause (2) of Section 49 of the CNT Act. Learned counsel further submitted that the transfer, if found not for reasonable and sufficient purposes, can be annulled and the property can be restored in favour of the landholders. Learned counsel further submitted that consent of Deputy Commissioner for transfer is required to be in a written and valid consent and for want of the same, the transfer can be declared a nullity. It is also contended that before transferring Bhuinhari Pahnai land, permission from Deputy Commissioner is required under Section 49 of the CNT Act, which should be with reasonable and sufficient purposes, which has not been done in the instant case and as such, impugned orders are fit to be quashed. The Bakast Bhuihari Pahnai land in question is not alienable to anyone other than Pahan of the village under the customary law, as is evident from Survey Report 1902-1910 (Ranchi) and hence, its transfer is fraud. Learned counsel further contends that giving back possession to the non-tribal is not provided under Section 49 of the CNT Act or any other provisions of the Act and finding of respondent nos. Learned counsel further contends that giving back possession to the non-tribal is not provided under Section 49 of the CNT Act or any other provisions of the Act and finding of respondent nos. 5, 3 and 2 in passing impugned orders are perverse and contrary to law and as such impugned orders contained in Annexures-2, 3 and 4 are illegal and liable to be quashed. Learned counsel further submitted that order dated 29.4.1980 had been passed in favour of the petitioner after hearing both the parties and delivery of possession was also affected, which is evident from Annexure-1 itself and as such, instant writ petition is fit to be allowed and impugned orders are liable to be set aside. 7. Per contra, counter affidavit has been filed on behalf of respondent nos. 1 to 5. It is contended on behalf of the respondents 1 to 5 that there is no two opinion that the orders of the courts below rejecting application of the petitioner is according to provisions of law. The appellate court, at three occasion, has directed for delivery of possession to the respondent no. 6, since delivery of possession on the basis of wrong order in favour of petitioner has been annulled. Learned counsel further submitted that this is a case where tribal raiyat is harassing non-tribal. Learned counsel further submitted that the orders passed by respondent nos. 2 and 3 are justified under law and the Commissioner, South Chhotanagpur Division, Ranchi also did not find any merit in the revision and the revision has been disallowed by him. 8. Mr. P.P.N. Roy, learned Sr. Counsel appearing on behalf of the respondents has vehemently opposed the contention raised by learned Counsel for the petitioner. Learned Sr. Counsel submitted that the land in question had been transferred by registered deed in the year 1934 itself after permission of the Deputy Commissioner under Section 49 of the Chhotanagpur Tenancy Act. Learned Sr. Counsel further submitted that it is settled law that once land has been transferred after taking permission of Deputy Commissioner under Section 49(3) of the CNT Act, the remedy lies only under Section 49(5) of the CNT Act and provision of Section 71-A of the CNT Act are not applicable in those cases where the permission under Section 49 has been given by the Deputy Commissioner. Learned Sr. Learned Sr. Counsel further contends that there is specific provision for annulling transfer made with consent of the Deputy Commissioner. Learned Sr. Counsel has placed reliance in the Judgment reported in 1990 BLT 352. It is further contended that there is no two opinion that orders of the court below rejecting application of the petitioner is according to provision of law. Learned Sr. Counsel pointed out towards finding of the Revisional Court that this is a case where the tribal raiyat is harassing the non-tribal person and has dismissed the revision filed by the petitioner. Learned Sr. Counsel has further placed reliance in the Judgment reported in 2003 (3) JCR 492 (Jhr.) : 2003(4) JLJR 157 and in the case reported in 2007 (4) JCR 132 (Jhr.) : 2007 (3) JLJR 632 wherein it has been held that application for restoration of land would not be maintainable if the land was transferred with the consent of the Deputy Commissioner. Learned Sr. Counsel further submitted that in the circumstances this writ petition is fit to be dismissed and further prayed for a direction to learned Court below to comply with the order of the Deputy Commissioner for delivery of possession of land to respondent no. 6 forthwith. 9. I have heard the parties and gone through entire records of the case. It appears that SAR Court, after reconsidering the case, passed an order on 20.6.1980 after annulling his own order passed on 29.4.1980 by which restoration was allowed. On 5.10.1987 when respondent no. 6 applied for delivery of possession, an order was passed stating that there is no provision for delivery of possession back to the non-tribal and against this order, an appeal was preferred in the Court of Deputy Commissioner. The Deputy Commissioner, vide his order dated 4.2.1988, ordered the lower court to reconsider the matter and give delivery of possession back to the non-tribal (respondent no. 6) and accordingly, the court below ordered delivery of possession of the land back to the non-tribal vide order dated 7.4.1988. Against the said order, SAR Appeal No. 51(R) 15/88-89 was tiled in the Court of Additional Collector who, vide his order dated 18.5.1991, remanded back the matter to the lower court to reconsider the matter and return back the land to respondent no. 6, if at all it was required. Against the said order, SAR Appeal No. 51(R) 15/88-89 was tiled in the Court of Additional Collector who, vide his order dated 18.5.1991, remanded back the matter to the lower court to reconsider the matter and return back the land to respondent no. 6, if at all it was required. The Court below vide order dated 31.1.1991 again ordered for delivery of possession of the land back to the non-tribal (respondent no. 6) and the petitioner has challenged the order dated 31.1.1994 of the Court below. This order of the court below and that of the Deputy Commissioner, affirmed by the Revisional Authority itself shows that no interference is required in the writ petition on the following grounds:- (i) Initial transfer of the land was effected on 23.5.1934 by registered sale deed bearing no. 1149, dated 23.5.1932 and the same was leased out permanently on 30.11.1946 by a registered deed of lease no. 7215, dated 7.12.1946 and this was done with prior permission of the Deputy Commissioner under Section 49 of the Chotanagpur Tenancy Act. (ii) No appeal whatsoever has been preferred against the order dated 20.6.1980 of SAR Court annulling his own order of 29.4.1980; (iii) The Deputy Commissioner and the Additional Collector in their appeals had decided earlier vide order dated 4.2.1988 and 18.4.1991 respectively that restoration should be effected in favour of the respondents. As a matter of fact that the Deputy Commissioner has already ordered in SAR Appeal Case No. 47(R) 28/87-88 to the lower court to reconsider the matter and give the land back to the respondents and accordingly, the Special Officer has also ordered on 7.4.1988 for delivery of possession of land to the respondent no. 6, no interference is required in the order of the lower court. The Commissioner, South Chhotanagpur Division, Ranchi in SAR Revision No. 57/96, vide order dated 20.10.1998, at para 3 has held that:- "It is an admitted position that the land in question was transferred by registered deed in the year 1934 after the permission of the Deputy Commissioner u/s 49 of the CNT Act. The Commissioner, South Chhotanagpur Division, Ranchi in SAR Revision No. 57/96, vide order dated 20.10.1998, at para 3 has held that:- "It is an admitted position that the land in question was transferred by registered deed in the year 1934 after the permission of the Deputy Commissioner u/s 49 of the CNT Act. It is a settled principle of law that once the land has been transferred after taking the permission of the Deputy Commissioner u/s 49(3) of the CNT Act, the remedy lies only u/s 49(5) of the CNT Act and the provision of Section 71-A of the CNT Act are not applicable in those cases where the permission u/s 49 has been given by the Deputy Commissioner. In this connection, the ruling of the Hon'ble Court as reported in 1990 BLT 352 is relevant. The Hon'ble High Court has held that since there is specific provision for annulling the transfer made with the consent of the Deputy Commissioner, the application u/s 71-A was not maintainable. Thus, there is no two opinion that the orders of the learned court rejecting the application of the petitioner is according to the provision of law. The appellate court on at least three occasions has directed for the delivery of possession to the O.P. since the delivery of possession on the basis of the wrong order in favour of the petitioner has to be annulled. In fact, this is a case where the tribal raiyat is harassing the non-tribal person i.e. the O.P. There is no merit in the argument of the petitioner that there is no provision for the delivery of possession to the non-tribal. In this case, the delivery of possession wrongly given in favour of the petitioner is to be annulled and the justice is to be done. The learned Deputy Commissioner was completely right in dismissing the appeal filed by the petitioner. Under the above circumstances, I do not find any merit in the revision and it is disallowed." The Hon'ble Division Bench in the case of Etwa Oraon Vs. Smt. Kusum Devi & Ors. reported in 2007 (4) JCR 132 (Jhr.) : 2007 (3) JLJR 632 , has held it is settled principles of law that application for restoration of land would not be maintainable if the lane was transferred with consent of the Deputy Commissioner. Smt. Kusum Devi & Ors. reported in 2007 (4) JCR 132 (Jhr.) : 2007 (3) JLJR 632 , has held it is settled principles of law that application for restoration of land would not be maintainable if the lane was transferred with consent of the Deputy Commissioner. In view of said decision, it appears that the arguments advanced by learned counsel for the petitioner cannot be accepted and hence rejected. 10. Be that as it may, having gone through rival submission of the parties this Court is of the considered view that no interference is required in the writ petition. The impugned orders are fully justified. There is no illegality or infirmity in the order passed by the Deputy Commissioner and affirmed by the Commissioner ordering for delivery of possession of land to respondent no. 6 forthwith. Writ petition filed by the petitioner merits dismissal. 11. As a cumulative effect of the aforesaid rules, guidelines, legal proposition, judicial pronouncements, this Writ Petition is dismissed. The Court below is directed to proceed with delivery of possession of the land to respondent no. 6 forthwith.