Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2104 (JHR)

Abdul Mannan v. State of Jharkhand

2018-09-19

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : 1. Heard Mr. Ayush Aditya, counsel appearing on behalf of the petitioners. 2. Heard Mr. Ashutosh Kumar Singh, counsel appearing on behalf of the respondents. 3. Nobody appears on behalf of the private respondent no. 5. 4. This writ petition has been filed for the following reliefs:- “For quashing the revisional order dated 13.12.2010 (Annexure-3) passed by the Commissioner, South Chotanagpur Division, Ranchi (Respondent No. 2) in S.A.R. Revision No. 5/2007 and the appellate order dated 7.9.2006 (Annexure-2) passed by the Deputy Commissioner, Ranchi (Respondent No. 3) in S.A.R. Appeal No. 86R15/97-98 whereby and whereunder the restoration petition filed by the private Respondent No. 5 has been allowed the lands have been ordered to restored in favour of the Respondent No. 5.” 5. Counsel for the petitioners submits that the application under Section 71-A of the Chotanagpur Tenancy Act was filed by the private respondent for restoration of 2.09 acres of land pertaining to R.S. Plot No. 95 under Khata No. 80 of village Semra, P.O. and P.S. Itki, District Ranchi against Kadir Mian, (father of the present petitioners) which was numbered as S.A.R. Case No. 98/1992-93 in the court of Special Officer, Schedule Area Regulation, Ranchi. 6. A show cause notice was filed by the father of the petitioners and it was contended that father of the petitioners was in possession of the property by virtue of Hukumnama of the year 1938 which was although a non registered document but was coupled with rent receipts issued by the zamindar and also by mutation carried on in the records of the State After vesting of zamindari. 7. He also submits that it was found that the property involved in this case is ‘Bakast Bhuinhari’ and is governed by Section 48 of the Chotanagpur Tenancy Act, 1908 wherein limitation of 12 years was initially provided and was extended to 30 years by virtue of amendment made in section 71A of Chotanagpur Tenancy Act,1908 w.e.f. 01.09.1986. He submits that after considering the show cause reply filed by the father of the petitioners, detailed order taking into consideration the various rent receipts etc. was passed by the S.A.R Officer and it has been held that the recorded tenants were dispossessed from the property at least as back as in the year 1966. He submits that after considering the show cause reply filed by the father of the petitioners, detailed order taking into consideration the various rent receipts etc. was passed by the S.A.R Officer and it has been held that the recorded tenants were dispossessed from the property at least as back as in the year 1966. In view of the rent receipts produced by the father of the petitioners before the said authority, it was held by the said authority that the recorded tenant was dispossessed from the property for more than 30 years and held that the proceeding under Section 71-A of the Chotanagpur Tenancy Act was barred by law. 8. Against this, private respondents filed S.A.R. Appeal No. 86 R 15 /1997-98 and the appeal was allowed by cryptic order without taking into consideration the findings recorded by the S.A.R. Officer. At this stage he also submits that before the S.A.R. Officer, the petitioner had also relied upon one gift deed which was executed in favour of the daughter in connection with which the mutation was also carried on by the State in Mutation Case No. 23/1973-74 and mutation was done on 03.07.1973 by issuance of correction slip. He submits that this particular gift deed and the mutation indicates that the private respondents herein were dispossessed from the property 12 years prior to coming into force of the aforesaid amendment of 1986 and accordingly he submits that the proceeding for restoration of land was apparently time barred. This aspect of the matter has not been taken into consideration by the appellate authority at all. Before the revisional court he submits that although the revisional court had taken note of the fact about the gift, but has rejected the claim being time barred by a cryptic order where neither the materials available on record has been discussed nor the order passed by the S.A.R. Officer and the reasons given therein has not been discussed. 9. Counsel appearing on behalf of the petitioner submits that the order passed by the appellate court as well as the order passed by the revisional authority are perverse and fit to be set aside. He submits that so far as point of limitation is concerned it has been held by Hon’ble Patna High Court reported in AIR 1968 Patna 302 (Mt. Ugni and another versus Chowa Mahto and others) at paragraph no. He submits that so far as point of limitation is concerned it has been held by Hon’ble Patna High Court reported in AIR 1968 Patna 302 (Mt. Ugni and another versus Chowa Mahto and others) at paragraph no. 10 that even un registered deed is admissible for collateral purpose for bringing on record the nature of the possession. He submits that in the instant case Hukumnama was coupled with rent receipts which was acknowledged by the State at least as back as in the year 1966, therefore the possession of the petitioners since 1966 was rightly considered and was in consonance with the aforesaid judgment reported in AIR 1968 Patna 302. 10. He further refers to the judgment passed by this Hon’ble Court reported in 1992(2) PLJR 238 (Bukan Ansari and others Vs. The State of Bihar and others) wherein it has been held that if the period of limitation of 12 years has not expired prior to coming into force of amendment in the year 1986 , only in that case the extended period of limitation of 30 years will be taken into account. Meaning thereby that the said amendment of 1986 was clearly held to be prospective in nature. He also refers to the judgment passed by Hon’ble Patna High Court reported in (1978) 1 SCC 669 (Yeshwant Rao Laxmanrao Ghatge and another versus Baburao Bala Yadav (dead) by L.Rs.) to submit that once the period of limitation had expired prior to coming into force of the amendment of the year 1986, the right of the private respondents stood extinguished and the subsequent amendment in the year 1986 does not revive any right in their favour. 11. Counsel appearing on behalf of the respondent submits that the issue of limitation has been considered by the original authority but admittedly the same was not considered by the appellate authority and the same was duly considered by the revisional authority. He submits that in such circumstances writ petition is fit to be dismissed as the point of limitation has been considered by the revisional authority. 12. He submits that in such circumstances writ petition is fit to be dismissed as the point of limitation has been considered by the revisional authority. 12. After hearing counsel for the parties and after considering the materials available on record, this court finds that the S.A.R. Officer by well reasoned order held that the proceeding for restoration of land was barred by limitation and the finding was recorded that the application for restoration was filed after expiry of more than 30 years. The said authority had also taken into consideration the rent receipts which were produced by the petitioner. This court finds that the order passed by the authority was in consonance with the judgments relied upon by the petitioner. In the judgment passed by Hon’ble Patna High Court reported in AIR 1968 Patna 302 (Mt. Ugni and another versus Chowa Mahto and others) it has been held in Paragraph no. 10 as under:- “It is true that a valid agricultural lease may be created by a registered instrument as pointed out in Jangal Singh v. Mukund Kumar, AIR 1948 Pat 446, and, if such a registered document is created, delivery of possession is not necessary to prove the title of the lessee. If, however, the lease is not registered, and is, therefore inadmissible as evidence of title, it will always be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. There is also no legal bar to a person claiming raiyati interest on two alternative pleas. He may claim such a right on the basis of a written document of lease. If, however, such claim fails on the ground that the document, being compulsorily registrable was not registered, nevertheless his alternative claim based on actual possession coupled with acceptance of rent by the landlord, may succeed. In that case, the unregistered lease will be admissible for the collateral purpose of proving the nature of possession.” 13. This court finds that the Hukumnama coupled with rent receipts was considered by the S.A.R. Officer only for bringing the nature of possession and issuance of rent receipts upon mutation indicated dispossession of the private respondents from the property at least as back as in the year 1966. This court finds that the Hukumnama coupled with rent receipts was considered by the S.A.R. Officer only for bringing the nature of possession and issuance of rent receipts upon mutation indicated dispossession of the private respondents from the property at least as back as in the year 1966. From the order passed by the S.A.R. Officer this court further finds that it has been recorded that private party did not produce any document before the said authority. The appellate court while allowing the appeal did not discuss the findings and the materials on record and decided the case on the point that the Hukumnama was un-registered. The Revisional authority did not discuss the materials on record and by cryptic finding recorded that no case of claim of time barred was made out. This court further finds that the gift deed which was made by the original writ petitioner to his daughter was a registered document dated 10.04.1972 and the revisional court has recorded in the revisional order that it was coupled by subsequent mutation in Mutation Case No. 23/1973-74 for which correction slip was issued on 03.07.1973. This court finds that even if this date of mutation is taken into consideration as the date of dispossession, 12 years (which was the period of limitation originally applicable for proceeding in connection with ‘Bhuinhari’ land) had admittedly expired prior to coming into force of the aforesaid amendment in section 71A of Chotanagpur Tenancy Act, 1908 in 1986. There was significant change in law by amendment of section 71A of Chotanagpur Tenancy Act,1908 in the year 1986 and the effect of this change has been considered by this Hon’ble court in the judgment reported in 1992(2) PLJR 238 (Bukan Ansari and others Vs. The State of Bihar and others) wherein at para 5 and 6 as follows:- “In this case, successive applications were filed by respondent no. 6 under section 71A of the Act. Respondent No. 3 in Appeal No. 836 of 1976-77 (Annexure 1) not only held that bhuinhari tenures do not come within the purview of section 71A of the Act but allowed the said appeal also on the ground that so far as Plot nos. 6 under section 71A of the Act. Respondent No. 3 in Appeal No. 836 of 1976-77 (Annexure 1) not only held that bhuinhari tenures do not come within the purview of section 71A of the Act but allowed the said appeal also on the ground that so far as Plot nos. 304 and 308 are concerned, there has been zarpeshgi thereto in relation there to created in 1883 and 1891 i.e. much prior to the coming into force of the Act and the statutory period of redemption has elapsed. This finding and order has been passed by respondent no. 3 in appeal, in my opinion, shall operate as res judicata. Further respondent no. 6, as noticed hereinbefore, filed another application which was purported to have been under section 48 of the Act. Respondent No. 4 by reason of the order dated 25.8.1981 as contained in Annexure 3 to the writ application and without considering the order as contained in Annexure 1 to the writ petition held that the petitioners have not produced any evidence to show as to how Dukan Ansari and Gul Azam Ansari had been possessing the said lands. Respondent No. 4, therefore, misdirected himself in ignoring the findings of fact arrived at by respondent no. 3 in Appeal No. 836 of 1976-77 on the ground that Zerpesgi leases were created at a point of time when the Act did not came into force. Respondent No. 2 also by reason of the impugned order as contained in Annexure 5 to the writ petition merely took into consideration that plot no. 304 and 308 were recorded as baskast bhuinhari land in the name of the forefathers of respondent no. 6. He committed an error of record in holding that the said zerpeshgi leases were created in the year 1944. If the zerpeshgi leases were executed in 1881 and 1893 as contended by the petitioners, the question of obtaining prior permission of the Deputy Commissioner in terms of Section 46 of the Act did not arise. Despite the said fact, respondent no. 2 held that zerpeshgi leases were created in violation of the provision of section 46 of the Act as also sub-section (4) of section 48 of the Act. Respondent No. 2, therefore, completely misdirected herself in law in arriving at the same finding. Despite the said fact, respondent no. 2 held that zerpeshgi leases were created in violation of the provision of section 46 of the Act as also sub-section (4) of section 48 of the Act. Respondent No. 2, therefore, completely misdirected herself in law in arriving at the same finding. Respondent No. 2 further erroneously held that the period of limitation has been extended in respect of bhuinhari tenure to 30 years. Mr. Verma has rightly drawn my attention to the fact that only in the year 1986, bhuinhari tenures came within the purview of section 71-A of the Act and thus from 1986 alone, the period of limitation would be deemed to have been extended to 30 years. Respondent No. 2, 3 and 4, however, had not dealt with the case from this angle as Schedule Area Regulation was not amended at that time. 6. This aspect of the matter has been considered by me in great details in C.W.J.C. No. 695 of 1987 (R) disposed of on 23.9.1991. In that decision, it has been held that the limitation provided for restoration of the land for violation of section 48 of the Act would be 12 years. It has further been held that under the Schedule Area Regulation, 1969 as amended in 1986 will be prospective in nature and thus only in the event, the aforementioned period of limitation had not expired at the time when the aforementioned Schedule Areas (Amendment) Regulation, 1986 came into force, the period of limitation would be extended to 30 years. However, in this case, even if it would be held that Zerpeshgi leases were executed in the year 1944, evidently the application for restoration was barred by limitation.” 14. There is no dispute that the property involved in this case is ‘Bakast Bhuinhari’ property governed by Chotanagpur Tenancy Act, 1908 and a limitation of 12 years was prescribed under section 48(4) of Chotanagpur Tenancy Act, 1908 for restoration of such land, and such land was included in section 71A of Chotanagpur Tenancy Act,1908, by amendment only in the year 1986. 15. 15. As already held above , the private respondent was dispossessed from the property much prior to 12 years from 1986 and accordingly the right to claim restoration of land extinguished much prior to amendment in the year 1986 and the point is squarely covered by the aforesaid judgment reported in 1992(2) PLJR 238 . This court finds that the order which was passed by original S.A.R. Officer holding the application for restoration of land as time barred was well reasoned order and was in consonance with the ratio of the aforesaid judgments which has been relied upon by the writ petitioner during the course of argument as mentioned above. Accordingly this court finds that the application for restoration of land filed by the private respondent was barred by limitation as provided under section 48(4) of Chotanagpur Tenancy Act, 1908 and the period of 12 years having expired prior to amendment of the year 1986, the provisions of section 71A of Chotanagpur Tenancy Act, 1908 had no applicability to the facts and circumstances of this case. This court finds that the appellate order as well as revisional order are perverse, not only on account that they are not in consonance with the aforesaid judgments relied upon by the petitioner, but also in view of the fact that the reasons which were given by the original authority for rejecting the application for restoration of land, were not properly discussed by the appellate authority as well as the revisional authority. 16. Accordingly, the revisional order dated 13.12.2010 (Annexure-3) passed by the Commissioner, South Chotanagpur Division, Ranchi (Respondent No. 2) in S.A.R. Revision No. 5/2007 and the appellate order dated 7.9.2006 (Annexure-2) passed by the Deputy Commissioner, Ranchi (Respondent No. 3) in S.A.R. Appeal No. 86R15/97-98 are hereby set aside and the order passed by the S.A.R. court is hereby affirmed. 17. This writ petition is accordingly allowed.