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2018 DIGILAW 1600 (JHR)

Umesh Sahu v. State of Jharkhand

2018-07-23

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : Heard Mr. Prashant Pallav, counsel appearing on behalf of the petitioners assisted by Mr. Sanjit Nayak, Advocate. 2. Heard Mr. Ashish Kumar Thakur, counsel appearing on behalf of the respondent-State. 3. Heard Mrs. Ritu Kumar, counsel appearing on behalf of the respondent no.7 assisted by Ms. Aanya, Advocate. 4. Heard Mr. Rupesh Kumar, counsel appearing on behalf of the respondent no.6. 5. This writ petition has been filed for the following relief: “To set aside the order dated 28-04-2009 passed in S.A.R. Revision No.44 of 2008 by the Learned Commissioner, South Chotanagpur Division, Ranchi i.e., Respondent No.2 whereby and where under he has dismissed the S.A.R. Revision No.44 of 2008 filed by the Petitioners.” 6. Counsel for the petitioner submits as follows:- (a) The property involved in this case was purchased by the father of the petitioner nos.1 to 4 and the husband of petitioner no.5 vide Registered Sale Deed No.8564 and 8505 dated 11-06-1970 from Bandana Ghasi and since then they are living in the property by constructing a house. (b) He further submits that in the Registered Sale Deeds dated 11.06.1970, the sons of the vendor had signed as witnesses and therefore it was with due knowledge. The sons of the vendor are original respondent no 6 and 7 of this writ petition. (c) The vendor of the Title Deed No.8564 and 8505 dated 11.06.1970, had also given a declaration by way of affidavit dated 10.06.1970 that by caste the vendor belongs to a caste called “Ghasi”. There is no dispute that Caste ‘Ghasi’ is a ‘Scheduled Caste’. (d) By referring to para-8 of the writ petition, the counsel for the petitioners submit that the vendor of the petitioners namely Bandhna Ghasi had purchased the property from the original raiyat after taking permission from the Deputy Commissioner and the Deputy Commissioner had given permission to purchase the tribal land by a Scheduled Caste person and accordingly the property no longer belongs to a Schedule Tribe. (e) Further, the petitioners had also got their name mutated by initiating Mutation Case No.15 R 27/72-73 vide order dated 18.10.1973 and accordingly rent receipts were issued to the petitioners. (e) Further, the petitioners had also got their name mutated by initiating Mutation Case No.15 R 27/72-73 vide order dated 18.10.1973 and accordingly rent receipts were issued to the petitioners. (f) The counsel for the petitioners submits that after expiry of more than 35 years and after death of the vendor of the title deeds, (Bandhna Ghasi), the private respondents (sons of Bandhna Ghasi) filed application under Section 71 A of Chotanagpur Tenancy Act, 1908 for restoration of land which was numbered as S.A.R. Case No.572 of 2005-06 in the Court of Special Officer, S.A.R., Ranchi. After being noticed, the father of the petitioners had filed a show-cause to the application by stating that Bandhna Ghasi belongs to Scheduled Caste and accordingly the application under Section 71 A of Chotanagpur Tenancy Act, 1908, itself, was not maintainable. However, vide order dated 14.02.2008, the application for restoration was allowed, against which, the petitioners filed an appeal which was numbered as S.A.R. Appeal No. 80 R 15 of 2007-08, which was dismissed vide order dated 22.02.2008 and thereafter S.A.R. Revision No. 44 of 2008 was also dismissed. (g) The specific case of the petitioners is that the property belongs to Scheduled Caste and therefore the application under Section 71 A of Chotanagpur Tenancy Act, 1908 was not at all maintainable. Counsel for the petitioners by referring to the impugned order submits that reason for dismissal of the revision has been given only to the extent that the land belongs to tribal khata and by mere change of name of the petitioner from Mahli to Ghasi, it cannot be changed into non-tribal land. He further submits that once the property of a tribal having been sold to a non-tribal with due permission from the Deputy Commissioner the nature of land cannot continue to be tribal. (h) He further submits that otherwise also from the perusal of the impugned orders passed by all the three authorities, there is no finding as to when the private respondents herein were dispossessed from the property and the authorities below are under legal obligation to consider as to whether the application under Section 71 A of Chotanagpur Tenancy, Act 1908 has been filed within a reasonable period from the date of dispossession or not. (i) Although as per the specific case of the petitioners, the application for restoration was filed after expiry of more than 35 years, counsel for the petitioners by referring to the application for restoration which was filed by the private respondents, as contained in supplementary affidavit of the petitioners dated 31.01.2011, submits that, as per the application filed by the private respondents herein, the fact in connection with the dispossession has been mentioned as seven years through Adh-batai and the method of dispossession has been mentioned as fraudulent method. He submits that there is no finding in connection with dispossession of the private respondents regarding the date and accordingly the authorities also have not cared to examine as to whether the petition for restoration of land, filed by the private respondents herein, was barred by limitation on account of having been filed beyond reasonable period. (j) He submits that the point of limitation raised by the petitioners is a pure question of law and the respondent authorities having not considered this aspect of the matter, accordingly, the impugned orders are perverse and are accordingly fit to be set-aside. He further submits that there is a serious dispute as to whether Bandhna Ghasi was a Scheduled Caste or Scheduled Tribe. (k) Counsel for the petitioners further submits that even if assuming everything against him, on the strength of a judgment passed in the case of Situ Sahu & Ors. Vs. State of Jharkhand and Ors. reported in (2004) 8 SCC 340 , even in cases of transfer by fraudulent methods, the point of limitation has to be considered, but, the impugned orders passed by the authorities have not given any finding on the date of dispossession of the private respondent and accordingly the point of limitation which ought to have been considered by them, have not been considered. 7. Counsel for the private respondent no.6 has submitted that the petitioners have lost in all the three courts and this court in writ jurisdiction cannot re-appreciate the facts and evidence under Article 226 of the Constitution of India and come to a contrary findings. 7. Counsel for the private respondent no.6 has submitted that the petitioners have lost in all the three courts and this court in writ jurisdiction cannot re-appreciate the facts and evidence under Article 226 of the Constitution of India and come to a contrary findings. He further submits that the date of dispossession was mentioned in the original application for restoration which was for about seven years and he also submits that merely because some registered document has been executed, the same is not a conclusive proof of the claim that the petitioners were in possession of the property since the date of the execution of the registered deed. He submits that the private respondents herein were throughout in physical possession of the property and accordingly, when they were physically dispossessed, they had filed their application for restoration of land within the period of reasonable time in terms of Section 71 A of Chotanagpur Tenancy Act, 1908. 8. He further submits that the private respondents herein are members of Scheduled Tribe namely ‘Mahli’ and the private respondents being the legal heirs and successors of Bandhna Ghasi alias Bandhna Mahli belong to the category of Schedule Tribe. 9. The private respondents herein further refers to the caste certificate said to have been issued by the competent authority wherein the status of the private respondents have been declared to be Scheduled Tribe. Counsel for the private respondents also submits that the sale deeds dated 11.06.1970 was preceded by sale deed of the year 1963 which was also a registered document. Prior to execution of the sale deed 01.10.1963, required permission from the Deputy Commissioner under Section 46 of the Chotanagpur Tenancy Act, 1908 in Case No.83 R (II) 62-63 was duly taken for the purposes of transfer of land from the recorded tenant to the father of the private respondents and the recorded tenants were also tribals. He submits that in the sale deed dated 01.10.1963 Bandhna Ghasi and his father’s name have been mentioned as Bandhna Mahli and Mangru Mahli respectively. He submits that there is no requirement under law to file any affidavit prior to execution of sale deed and the status of a person as to whether he is a Scheduled Caste/Scheduled Tribe cannot be decided through an affidavit. He submits that there is no requirement under law to file any affidavit prior to execution of sale deed and the status of a person as to whether he is a Scheduled Caste/Scheduled Tribe cannot be decided through an affidavit. He submits that sale deed of the year 1970 was obtained through fraudulent method, as the same was in the total violation of the provisions of Chotanagpur Tenancy Act, 1908 and accordingly the same was a fraud on statute and therefore no reliance can be placed by the petitioners on the said document even if it is registered document. However, during the course of argument, the counsel for the respondents also could not point out any finding by the authorities below i.e., the S.A.R. Officer, the appellate authority or the revisional authority as to the period for which the private respondents remained dispossessed from the property or the date on which the private respondents were dispossessed from the property, although, it was mentioned in the application for restoration of land that they have been dispossessed for last 7 years. He further submits that point of limitation which has been raised by the writ petitioners during the course of argument was never raised by the writ petitioners before the authorities below and accordingly they cannot be permitted to raise these points for the first time in the writ jurisdiction. The petitioners having lost in all the three courts, this Court ought not to interfere with the impugned orders in writ jurisdiction. Counsel for the respondents has relied upon the judgment reported in the case of Pandey Oraon Vs. Ram Chander Sahu & Ors. AIR 1992 SC 195 para – 6. He has also referred to the judgment passed by this Court reported in (2005) 1 JLJR 98 (Bibi Kulsum Vs. Commissioner, South Chotanagpur Division, Ranchi & Ors.), he has further referred to the judgment passed in the case of full bench AIR 1985 Patna 352 (Bina Rani Ghosh Vs. Commissioner, South Chota Nagpur Division, and Others) which is equivalent to 1985 BLT (Rep) 279 (FB), on the scope of Article 226 and Article 227 of the Constitution of India and submits that it is not open to the writ court to reappreciate evidence afresh on facts which stand concluded by forums having jurisdiction over the same. 10. Counsel appearing on behalf of the respondent no. 10. Counsel appearing on behalf of the respondent no. 7 has also opposed the writ petition and has made similar arguments as has been advanced by the counsel appearing on behalf of the respondent no.6. She has also referred to the aforesaid judgment passed by Hon’ble Supreme Court reported in AIR 1992 SC 195 and also judgment reported in (2005) 1 JLJR 98 . She has submitted that the petitioners have lost in all the three forums and the impugned orders do not call for any interference. However, during the course of argument, the counsel appearing for respondent no.7 also could not indicate any finding by any of the three authorities as to the date on which the private respondents were dispossessed from the property and accordingly there is no discussion in the impugned orders on the point of limitation although it is specific case of the petitioners that the application for restoration was filed after more than 35 years. 11. After hearing the counsel for the parties and after going through materials on record, this Court finds as follows:- (a) The property involved in this case was originally recorded in the name of tribals namely Bhosa Oraon and Karma Oraon, who vide registered sale deed dated 01.10.1963 sold this property to Bandhna Mahli and for the purpose of transfer of land, a specific permission was also obtained from the Deputy Commissioner under Section 46 of Chotanagpur Tenancy Act, 1908 in Case No.83 R (II) 62-63. (b) Subsequently, Bandhna Mahli had sworn affidavit dated 10.06.1970 and the name mentioned in the affidavit is Bandhna Ghasi son of Mangru Ghasi and thereafter vide two registered deeds No.8564 and 8505 dated 11.6.1970, the property was sold in favour of the father of the petitioners. (c) In these two sale deeds dated 11.6.1970, the name of the vendor has been mentioned as Bandhna Ghasi, although in the sale deed of 1963 dated 01.10.1963, the name of the purchaser was mentioned as Bandhna Mahli. The name of father of the purchaser in registered deed dated 01.10.1963 has been mentioned as Mangru Mahli and in sale deed dated 11.06.1970, the name of father of the vendor is mentioned as Mangru Ghasi. (d) From the aforesaid facts of this case, it appears that there was some issue in connection with the caste status of Bandhna Ghasi or Bandhna Mahli. (d) From the aforesaid facts of this case, it appears that there was some issue in connection with the caste status of Bandhna Ghasi or Bandhna Mahli. Admittedly, prior to execution of sale deed 11.06.1970, no permission from Deputy Commissioner was obtained. (e) There is no dispute to the fact that the caste ‘Ghasi’ is a ‘Scheduled Caste’ category and Caste ‘Mahli’ is Scheduled Tribe category. The issue as to whether Bandhna Ghasi or Bandhna Mahli belonged to the category of Scheduled Tribe or not, goes to the root of the matter as Section 71 A cannot be made applicable to persons not belonging to Scheduled Tribe. This Court is of the considered view that once the property belonging to tribal has been sold after taking due permission vide sale deed of the year 1963, the nature of the land cannot continue to remain as tribal even if the purchaser of the property (i.e., Bandhna Ghasi/Bandhna Mahli) is not a tribal. Accordingly, an application under Section 71 A could be filed by sons of Bandhna Ghasi/Bandhana Mahli against the petitioners only if he was a tribal. The land involved in the case cannot have any caste i.e., tribal khata or not tribal khata. It is the person who owns the land, whose caste is decisive. Admittedly, in this case the descendants of the recorded tenants who were admittedly tribals have not filed the case for restoration of land as they had sold the land to Bandhna Ghasi/Bandhna Mahli admittedly in the year 1963 by registered deed after taking due from Deputy Commissioner. Accordingly, the nature of land will depend upon the caste of Bandhna Ghasi/Bandhna Mahli. (f) From the perusal of the impugned orders, this Court finds that there is no clear finding as to whether Bandhna Ghasi or Bandhna Mahli belonged to Scheduled Caste or Scheduled Tribe. (g) However, as the caste certificate has been produced by the respondent herein for the first time in the writ court, the genuineness of the caste certificate said to have been issued in favour of the private respondents cannot be examined and appreciated for the first time in the writ jurisdiction. (h) However, from the records of the case, a serious dispute has been created as to whether Bandhna Ghasi or Bandhna Mahli, belonged to Schedule Caste or Scheduled Tribe category. (h) However, from the records of the case, a serious dispute has been created as to whether Bandhna Ghasi or Bandhna Mahli, belonged to Schedule Caste or Scheduled Tribe category. Therefore, it is certainly for the respondent to establish the caste status of their father namely Bandhna Ghasi or Bandhna Mahli and also their caste status before the competent authority. As already observed above, this court is of the considered view that the caste status of Bandhna Ghasi or Bandhna Mahli has a serious bearing on the proceedings as a proceeding under section 71A of Chhotanagpur Tenancy Act, 1908 is maintainable only at the instance of a person belonging to schedule tribe. There being no clear finding by the authorities below, although this point has been raised by the petitioner before the authority, makes the impugned orders perverse and calls for interference under Article 226 of the Constitution of India. This Court finds that the authority below was of the view that as the land originally stood recorded in the name of tribals, it make no difference whether the purchaser i.e., Bandhna Ghasi/Bandhna Mahli belongs to Schedule tribe or not. This view is not sustainable in law as already discussed above. (i) This Court further finds that there is no finding by the authorities as to the period, since when the private respondents herein were dispossessed from the property. The period for which a party to the proceedings under section 71 A of Chhotanagpur Tenancy Act, 1908 has been dispossessed has an important bearing in the matter. It has been held in the case of Situ Sahu & Ors. Vs. State of Jharkhand & Ors. (2004) 8 SCC 340 that even if the transfer is fraudulent then also power under Section 71 A of Chotanagpur Tenancy Act, 1908 will have to be exercised by the competent authority only within a reasonable time. It has been held by Hon’ble Supreme Court in judgment reported in (2016) 14 SCC 761 that it was the duty of the original court to consider the issue of limitation even if it is not specifically raised by any of the parties and the failure of the original court to consider the issue does not stop the parties from raising that issue before the appellate court. In view of absence of any finding regarding period of dispossession of the private respondent from the property involved in this case make the impugned order perverse leaving no option but to remand the matter on this point. The counsel appearing for the respondents have relied upon the judgement passed by Hon’ble the Supreme Court reported in Pandey Oraon Vs. Ram Chander Sahu & Ors. AIR 1992 SC 195 para – 6 which is quoted here-in-below: “6. In S.71 A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession and a non-member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of S. 71 A of the Act.” The ratio of this judgment has been followed in the judgment passed by this Court reported in (2005) 1 JLJR 98 (Bibi Kulsum Vs. Commissioner, South Chotanagpur Division, Ranchi & Ors.) This court finds that the said judgement relied upon by the respondents clearly indicates that the factum of dispossession has to be examined from the point of view of a physical fact and the word ‘transfer’ cannot be confined to the meaning of ‘transfer’ as per the provisions of Transfer of Property Act, 1882 or a situation where the transfer has statutory definition. Thus in view of this judgement also, finding on the point of dispossession from the property is extremely important and it goes to the root of the matter so far as delay in filing the petition for restoration is concerned. This aspect of the matter having not been dealt with by the authorities below in the impugned orders also makes the impugned order perverse and calls for interference under article 226 of the Constitution of India. (j) The respondents have also relied upon judgement reported in AIR 1985 Patna 352 (Bina Rani Ghosh Vs. This aspect of the matter having not been dealt with by the authorities below in the impugned orders also makes the impugned order perverse and calls for interference under article 226 of the Constitution of India. (j) The respondents have also relied upon judgement reported in AIR 1985 Patna 352 (Bina Rani Ghosh Vs. Commissioner, South Chota Nagpur Division, and Others) which is equivalent to 1985 BLT (Rep) 279 (FB), on the limited scope of writ jurisdiction under the Constitution of India. This court is conscious of the law that the writ court cannot sit in appeal over the orders passed by the authorities below and cannot re-appreciate the evidence to arrive at a different finding. However in the matters where the impugned order is perverse and/or suffers from non-application of judicial mind or non-application of settled principles of law or silent on material points touching upon the jurisdiction or power of the authority exercising the statutory powers, certainly it is for this Court to exercise powers under Article 226 of the constitution of India to set aside such perverse orders. (k) This Court also finds that, even if the sale deed executed in the year 1970 is assumed to be in violation of the statute and hence a fraudulent document, then also the authorities below were duty bound to consider the point of limitation regarding the elapse of time in filing the application for restoration of land from date of dispossession. This exercise has not been under taken by the respondent authorities in any of the impugned orders. (l) In view of the aforesaid findings, this Court is of the considered view that the impugned orders passed by all the three authorities are perverse on account of non-recording any findings regarding the date/period of dispossession of the private respondents, non-recording of any finding as to whether the application filed by the private respondents was within the reasonable time as contemplated under Section 71 A of Chotanagpur Tenancy Act, 1908 read with aforesaid Judgment passed by Hon’ble Supreme Court reported in (2004) 8 SCC 340 and also on account of non-consideration of the dispute as to whether Bandhna Ghasi or Bandhna Mahli actually belonged to Scheduled Caste or Scheduled Tribe community. (m) This Court agrees with the finding recorded by the authorities below that the point as to whether Bandhna Mahli or Bandhna Ghasi belonged to Scheduled Caste or Scheduled Tribe, cannot validate the sale deed executed in the year 1970 as in both the circumstances, the same would still be in violation of the provisions of Section 46 of Chotanagpur Tenancy Act, 1908 in absence of required permission from the Deputy Commissioner. This is the view of the appellate authority confirmed by the revisional authority that in both the cases the sale deed of the year 1970 cannot be said to be in accordance with the provisions of Chotangapur Tenancy Act, 1908. This Court does not find any illegality or perversity in the said finding of the appellate authority/revisional authority. (n) However, as held by Hon’ble the Supreme Court in aforesaid case reported in (2004) 8 SCC 340 , the point of limitation has to be appreciated and considered even in the matter of fraudulent transaction. Therefore, this point was required to be considered by the authorities below and the authorities were also required to consider the point as to whether the private respondents herein belonged to Schedule Caste or Scheduled Tribe category in order to appreciate as to whether they are entitled to restoration of land under the provisions of Section 71 A of Chotanagpur Tenancy Act, 1908 or not. Accordingly this case is being remanded to the S.A.R. Officer on the aforesaid two points only for passing appropriate order in accordance with law. (o) Counsel for the petitioners and the private respondents agree to appear before the S.A.R. Officer on 05.11.2018 and upon their appearance the S.A.R. Officer is directed to pass fresh order considering the aforesaid two points, after hearing the parties and giving them opportunity to adduce evidence in accordance with law within a period of six months thereafter.