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2018 DIGILAW 2116 (JHR)

Md. Firoj Ahmad v. State of Bihar

2018-09-24

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : Heard Mr. L.K. Lal, counsel appearing on behalf of the petitioners assisted by Mr. Kundan Kumar Ambastha, Advocate. 2. Heard Mr. J.J. Sanga, counsel appearing on behalf of the respondent no.5. 3. Heard Mr. Rajiv Anand, counsel appearing on behalf of the respondent-State. 4. This writ petition has been filed for the following relief: “For quashing the order dated 11.1.91 passed by the Deputy Commissioner(West) Singhbhum in S.A.R. appeal 173 of 1986-87 allowing the appeal filed by the respondent no.5 and restoring the lands to respondent no.5, being plot no. 887 and 1059 of Khata No.94 and Plot no.887 of Khata No.5 situated at village Khapparsai, District Singhbhum (west) contained in Annexure 5 to the writ application under section 71 A of the C.N.T. Act and the order dated 29.6.99 passed by the Commissioner, South C.N. Division, Ranchi in Singhbhum Rev. Revision no.17 of 1991 contained in Annexure 6 to the writ application wherein where under he has dismissed the revision filed by the petitioner.” 5. Counsel for the petitioners submits that the original writ petition as well as the original private respondent in the writ petition expired during the pendency of the writ petition and have been duly substituted and are being represented through their legal heirs and representatives. 6. He submits that an application for restoration of land under Section 71 A of Chotanagpur Tenancy Act, 1908 was filed by the private respondent and the restoration application was allowed vide order dated 13.08.1975 in S.A.R. Case No.43 of 1975-76. 7. Subsequently, an application was filed before the Additional Deputy Commissioner, Singhbhum under Section 49 of the said Act and the said authority granted permission for transfer of the property involved in this case to the writ petitioner vide order passed in Misc. Case No.39 of 1978-79. 8. Thereafter, through the power of attorney holder of the private respondent, the property was transferred to the petitioner by a registered deed dated 20.09.1980. 9. The counsel by referring to Annexure – 1 to the writ petition submits that in connection with permission to transfer an order dated 04.12.1978 was passed recording that a petition was filed by private respondent before the Deputy Commissioner seeking permission to transfer the land and a report of the Anchal Adhikari was called for and the matter was directed to be posted on 22.12.1978. Thereafter, a report was received, and vide order dated 02.05.1979, the permission of transfer was granted and the consideration amount was fixed at Rs.10,000/-. Thereafter, it has been recorded vide order dated 09.07.1979 that the draft sale deed was produced before the Deputy Commissioner and certain errors were indicated in the draft sale deed and the draft sale deed was approved with a direction that after registration of the same, the deed be produced by the vendee for confirmation. 10. He submits that in the impugned order passed by the appellate authority in S.A.R. Appeal No.173 of 1986-87, it has been held that the property could not have been transferred through power of attorney and that the power of attorney itself tantamount to transfer. It has been further held that the aboriginal raiyat cannot empower attorney for dealing with their landed property and for this also, permission of Deputy Commissioner is required. Accordingly, the appellate authority held that the transfer of land through power of Attorney was in contravention of Section 46 of Chotanagpur Tenancy Act, 1908 and the said authority held that the restoration of land to the private respondent should be completed in all respect. Against the order of the appellate authority , the petitioners filed revision before the revisional authority which was numbered as Singhbhum Revenue Revision No.17 of 1991 and the revisional authority also held that the holder of the power of attorney cannot transfer the land belonging to a tribal raiyat unless permitted by the competent authority and further held that the draft sale deed which has been assailed by the learned Additional Deputy Commissioner does not mentions that this was being executed by the holder of the general power of attorney. Accordingly, the revisional authority held that the petitioner has played fraud and ultimately dismissed the revision application. 11. Counsel appearing on behalf of the petitioners while assailing the impugned orders submits that there is no bar under the provisions of Chotanagpur Tenancy Act, 1908 read with the Registration Act, 1908 regarding execution of power of attorney for the purposes of execution of sale deed and accordingly the deed involved in this case was rightly executed by the power of attorney holder. He also submits that on this ground, the impugned orders are perverse and are fit to be set-aside. He also submits that on this ground, the impugned orders are perverse and are fit to be set-aside. He further submits that the deed by which the property was transferred was the same as that which was approved by the deputy commissioner with the only difference that the deed was subsequently executed by the power of attorney holder. He submits that the terms of the deed to be settled as per the provisions of section 49 having not been changed, there is no illegality in execution of the registered deed through the power of attorney holder. 12. The other point which has been argued by the counsel appearing on behalf of the petitioners is that, although the order of restoration of land dated 13.08.1975 passed in S.A.R. Case No.43 of 1975-76 was not challenged, but the subsequent order dated 18.08.1980 regarding delivery of possession was challenged in S.A.R. Appeal No.31 of 1980, this itself is indicative of the fact that the order of restoration dated 13.08.1975 passed in S.A.R. Case No.43 of 1975-76 did not attain finality. 13. Counsel appearing on behalf of the private respondent on the other hand submits that vide order dated 13.08.1975 in S.A.R. Case No.43 of 1975-76, the property in question was directed to be restored to the private respondent, against which, the petitioner did not file any appeal. However, subsequently at the stage of delivery of possession one order dated 18.08.1980 was passed, whereby the Circle Officer was directed to deliver the possession of the property to the private respondent. Against which, S.A.R. Appeal No.31 of 1980 was filed and till this stage, the petitioner did not bring to the notice of the Court about the permission said to be obtained for sale of the property to the wife of the petitioner. The specific case of the private respondent was that the private respondent neither executed any power of attorney nor applied for grant of permission nor has executed any sale deed nor received any consideration amount. The counsel submits that, even assuming, though not admitting, that permission was granted by the deputy commissioner for sale, as claimed by the petitioner, once the deed for sale was approved by the Deputy Commissioner, the same should have been executed in the same form. The counsel submits that, even assuming, though not admitting, that permission was granted by the deputy commissioner for sale, as claimed by the petitioner, once the deed for sale was approved by the Deputy Commissioner, the same should have been executed in the same form. Even as per the petitioner also, the sale deed was neither executed in the form it was approved nor the same was ever produced by the vendee of the property for confirmation before the deputy commissioner in terms of the order dated 9.7.1979 passed in Misc. Case No.39 of 1978-79, therefore the sale deed cannot be acknowledged as due compliance of the so called order of permission claimed to have been granted by the deputy commissioner. He submits that the sale deed includes the manner of mode of passing of the consideration amount and in the case of execution of the sale deed by the power of attorney holder, the executor of the power of attorney is not available on the spot to receive the consideration amount. He submits that in order to ensure that the sale is complete in all respect and the vendor, being a tribal has received consideration as per the sale deed the deputy commissioner retained the power to confirm the sale deed after its due execution to be confirmed upon the sale deed being produced by the vendee before the deputy commissioner for confirmation as per order dated 9.7.1979 passed in Misc. Case No.39 of 1978-79. He submits that in view of the aforesaid the authorities below have held in the impugned order that the petitioner has committed fraud, accordingly the writ petition is fit to be dismissed. 14. Counsel appearing on behalf of the private respondents further submits that both the authorities below have decided the case against the writ petitioners and have held that the transfer was against the provision of the said Act of 1908 and in absence of any perversity in the impugned orders, the same do not call for any interference. 15. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the application for restoration of land was subject matter of S.A.R. Case No.43 of 1975-76 in which order of restoration dated 13.08.1975 was passed. This order attained finality. 16. 15. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the application for restoration of land was subject matter of S.A.R. Case No.43 of 1975-76 in which order of restoration dated 13.08.1975 was passed. This order attained finality. 16. Subsequently, upon the application filed by the private respondent, the Sub-Divisional Officer vide order dated 18.08.1980 directed the Circle Officer to deliver the possession of the land to the private respondent. Against this, one S.A.R. Appeal No.31 of 1980 was filed before the Court of Deputy Commissioner. 17. This Court is of the considered view that order of restoration of land dated 13.08.1975 in S.A.R. Case No.43 of 1975-76 is a final order and it attained finality as it was not challenged by any party. This Court is of the view that order dated 18.08.1980, whereby a direction was issued to the Circle Officer to deliver the possession of the land, is in the nature of execution of order dated 13.08.1975 and is a separate order. This order dated 13.08.1975 cannot be assailed in matter arising out of subsequent order dated 18.08.1980 which related to delivery of possession against which S.A.R. Appeal No.3/80 was filed. 18. Accordingly, the contention of the petitioners that the order dated 13.08.1975 passed in S.A.R. Case No.43 of 1975-76 was also subject matter of consideration in S.A.R. Appeal No.31 of 1980, is hereby rejected. 19. The appellate authority remanded the matter back to the Sub-Divisional Officer. The Sub-Divisional Officer after remand accepted the claim of the petitioner regarding transfer through power of attorney pursuant to permission of transfer vide order dated 02.05.1979 passed in passed in Misc. Case No.39 of 1978-79 20. Thereafter, the private respondent filed appeal which was allowed by the Deputy Commissioner vide order dated 11.01.1991 in S.A.R. Appeal No.173 of 1986-87. The appellate authority held the transfer through power of attorney as invalid. Against this revision being Singhbhum Revenue Revision No.17 of 1991 was filed by the writ petitioner. Before the revisional court, a specific plea was taken by the private respondent that the permission under Section 49 of Chotanagpur Tenancy Act, 1908 which is claimed by the petitioner is a fraudulent document and that she has not even taken the consideration amount out of the so called sale deed executed by the power of attorney holder. Before the revisional court, a specific plea was taken by the private respondent that the permission under Section 49 of Chotanagpur Tenancy Act, 1908 which is claimed by the petitioner is a fraudulent document and that she has not even taken the consideration amount out of the so called sale deed executed by the power of attorney holder. The execution of power of attorney dated 19.09.1972 was also denied. This power of attorney, which is being disputed by the respondent , was apparently much prior in time as the application for grant of permission for sale , which is also being disputed by the respondent, was made passed in the year 1978-79 in Misc. Case No.39 of 1978-79. It is not disputed by the petitioner that the format of the sale deed which was approved by the deputy commissioner did not indicate that the same will be through the power of attorney holder and the sale deed itself was subject to confirmation by the deputy commissioner upon being produced by the vendee and this was never done. Accordingly, the story of permission under Section 49 of Chotanagpur Tenancy Act and the consequent transfer was itself held to be a fraudulent transfer by a revisional authority. 21. This Court finds that even assuming for the sake of argument that permission was granted under Section 49 of Chotanagpur Tenancy Act, 1908 in Rev. T.A. Miscellaneous Case No.39 of 1978-79, as claimed by the petitioner, then also the transfer which has taken place in the instant case through the power of attorney cannot be sustained in the eyes of law in view specific order dated 09.07.1979, which indicates that the draft sale deed was approved by the Deputy Commissioner and the same was to be produced before the Deputy Commissioner for confirmation. 22. This Court finds that the revisional authority has given a specific finding that the draft sale deed which was approved by the Additional Deputy Commissioner did not mention that the same will be executed by the holder of general power of attorney and this finding has not been disputed by the petitioner. 22. This Court finds that the revisional authority has given a specific finding that the draft sale deed which was approved by the Additional Deputy Commissioner did not mention that the same will be executed by the holder of general power of attorney and this finding has not been disputed by the petitioner. This Court finds that the deed which was executed through the power of attorney was itself not in accordance with order dated 09.07.1979 and further it is not the case of the petitioner that this deed was duly produced and confirmed by the Deputy Commissioner in terms of order dated 09.07.1979. 23. This Court is of the considered view that the Deputy Commissioner in exercise of power conferred under Section 49 (3) of the Chotanagpur Tenancy Act, 1908 has to ensure protection of the rights of the tribals and has the jurisdiction to settle the terms of the deed of transfer as per section 49 of the aforesaid Act which reads as follows:- “49. Transfer of occupancy-holding or Bhuinhari-Tenure for certain purposes - [(1) Notwithstanding anything contained in Sections 46, 47 and 48 any occupancy Raiyat or any member of a Bhuinhari family, who is referred to in Section 48 may transfer his holding or tenure or any part thereof for the following purposes,- (a) in any case, the use of the land for any industrial purposes or for any other purposes which the State Government may, by ratification declare to be subsidiary thereto or for access to land used or required for any such purpose. (b) in any case, the use of the land for the purpose of mining or for any other purposes which the State Government may, by notification, declare to be subsidiary thereto or for access to land used or required for any such purpose. (2) The transferee in such cases shall not be entitled to use the land so transferred for any other purpose except for which it was transferred.] (3) Every such transfer must be made by registered deed, and before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained to the terms of the deed and to the transfer. (4) Before consenting to any such transfer, the Deputy Commissioner shall satisfy himself that [adequate compensation is tendered to landlord for the loss (if any) caused to him by the transfer], and, where only part of a holding or tenure is transferred, may, if he thinks fit, apportion; between the transferee and the original tenant the rent payable for the holding or tenure.” 24. This court is of the considered view that the terms of the deed as mentioned in section 49(3) of the aforesaid Act also includes the manner in which the deed is to be executed and the manner in which consideration is to be paid and to ensure that the transfer as per the permission is made to the right person and also that the consideration is also received by the concerned tribal. This is to ensure that the tribal is not subjected to any fraudulent action. If the deed is permitted to be executed by power of attorney, the same may lead to a situation that the recorded raiyat may not get the consideration amount having been paid to his so called power of attorney by the transferee. The private respondent has denied receipt of consideration amount over and above denial of execution of power of attorney and application for permission to sell. The contention of the petitioner that the deputy commissioner was concerned only with the terms of deed and the same could have been executed by the tribal or his power of attorney even if it was not mentioned in the approved deed is hereby rejected for the aforesaid reasons. This court is of the considered view that the terms of the deed also includes the manner it is to be executed so as to include the mode and manner of payment of the consideration amount. This court is of the considered view that the provisions of Chota Nagpur Tenancy Act, 1908 being a beneficial legislation enacted with a view to protect the interest of the tribals has to be interpreted in a manner which ensures complete protection of the interest of the tribals. This court is of the considered view that the provisions of Chota Nagpur Tenancy Act, 1908 being a beneficial legislation enacted with a view to protect the interest of the tribals has to be interpreted in a manner which ensures complete protection of the interest of the tribals. It is the duty of the deputy commissioner under the aforesaid section 49 of the Act to ensure permission to transfer may not be used as a tool to commit any fraud against the tribal and ensure and confirm that the consideration amount of the deed upon its execution is actually received by the concerned tribal. This court finds that otherwise also the permission to transfer as per the deed was directed to be produced before the deputy commissioner by the vendee for confirmation after its execution as per order dated 9.7.1979 passed in Misc. Case No.39 of 1978-79, but this having not been done, the sale deed executed cannot be said to have taken its effect in absence of such confirmation. This is so, even if the entire story of permission as relied upon by the petitioner is assumed to be correct. 25. Accordingly, this Court finds that the order of restoration dated 13.08.1975 passed in S.A.R. Case No.43 of 1975-76 was required to be given effect to and it has been rightly held by the authorities that the petitioner was in possession of the property in violation of the provisions of Section 46 of Chotanagpur Tenancy Act, 1908. 26. This Court does not find any illegality or perversity in the impugned orders and accordingly this writ petition is dismissed.