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2018 DIGILAW 432 (JHR)

Bhima Oraon v. State of Jharkhand

2018-02-20

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : Heard Mr. P.P.N. Roy, learned senior counsel for the petitioners assisted by Mr. Pandey Ashok Nath Roy, Advocate. 2. Heard Mr. Amar Kumar Sinha, learned counsel appearing for the respondent no. 5 to 8 assisted by Mr. Kundan Kumar Ambastha, Advocate and heard Mr. Sahil, learned counsel appearing on behalf of respondent nos. 1 to 4. 3. This writ petition has been filed for the following reliefs:- (a) For quashing the order dated 30.10.2007 passed in S.A.R. Revision Case No. 12/2007 by the Commissioner, South Chhotanagpur, Division, Ranchi as contained in Annexure-3 to the writ petition, whereby the revision petition filed by the petitioners has been dismissed. (b) For quashing the order dated 10.10.2006 passed in S.A.R. Appeal No. 16R-15/05-06 passed by the learned Additional Collector, Ranchi as contained in Annexure-2 to the writ petition, whereby the appeal filed by the petitioners has been dismissed. (c) For quashing the order dated 15.01.2005, passed by the learned Special Officer, S.A.R. Ranchi in S.A.R. Case No. 948/03-04 (Annexure-1 to the writ petition) whereby the application filed by the petitioners for restoration of land under Section 71 A of the Chotanagpur Tenancy Act has been rejected. 4. The facts as submitted by the counsel appearing on behalf of writ petitioners are as follows:- (a) The property involved in this case is under Khata No. 90, bearing R.S. Plot No. 711, in village- Pandra, Thana No. 149 P.S. Sukhdeonagar District Ranchi measuring an area of 95 decimals under Khewat No. 5/4. (b) The land in question was recorded in the name of Khewatdar of the said land namely Somra Oraon, s/o Bhima Oraon and the property was recorded as “Baskat Bhuinhari”. (c) The petitioners in this case are descendants of said Somra Oraon. (d) The specific case of the petitioners is that the petitioners being the descendants of the recorded tenants filed S.A.R. Case No. 948/03-04 under section 71-A of the Chotanagpur Tenancy Act,1908 against the private respondents herein for restoration of the aforesaid land on the ground that the land has been transferred to private respondent in violation of the provisions of the Chotanagpur Tenancy Act,1908 and further that the decree in Title Suit No. 01/67 vide which the said land was transferred was collusive and based on compromise. (e) The said case being S.A.R. Case No. 948/03-04 was dismissed by the Special Officer, S.A.R., Ranchi vide order dated 15.01.2005 on the ground that the petition filed by the petitioners was time barred. (f) Against this, the petitioners filed S.A.R. Appeal No. 16R-15/05-06 which was dismissed vide order dated 10.10.2006 holding that the petition for restoration filed by the petitioners was time barred. (g) Against this, the petitioners filed revision being Revision Case No. 12/2007 which was also dismissed vide order dated 30.10.2007. 5. Counsel for the petitioners submits that the decree passed in Title Suit No. 1/67 by which said land was transferred was itself based on collusive compromise and the same should be taken into account being fraud against the statute. Counsel for the petitioners also submits that there is no period of limitation prescribed for the purpose of exercising power under Section 71 A of Chotanagpur Tenancy Act,1908. He submits that as per the judgment passed by the Hon’ble Supreme Court, the power has to be exercised within a reasonable time. The counsel submits that The Hon’ble Supreme Court in one of the cases has held that reasonable time can be extended up to 50 years also. Counsel for the petitioners also submitted that as the date of holding number which was created in favour of the private respondents was of the year 2000 which is contained in Annexure-B to the counter-affidavit filed by the private respondents and the case was filed in the year 2003, therefore, the writ petitioners filed application for restoration within a reasonable time. The counsel submits that in the aforesaid facts and circumstances, the impugned orders passed in this case are fit to be set aside. The counsel for the petitioners relied upon the following judgments A. 2003(4) JCR 206 (Jhr) to submit that fraud against statute goes to the root of the matter and authorities are competent to take action under Chotanagpur Tenancy Act,1908. In the instant case transfer is by way of collusive compromise which amounts to fraud against the statute. B. 2014(1) JLJR 92 to submit that claim of possession pursuant to illegal documents cannot be recognised. C. W.P.(C) No. 234 of 2003 dated 10.11.2009 to submit that even by a decree of civil court the land of a member of schedule tribe cannot be transferred to non tribal. B. 2014(1) JLJR 92 to submit that claim of possession pursuant to illegal documents cannot be recognised. C. W.P.(C) No. 234 of 2003 dated 10.11.2009 to submit that even by a decree of civil court the land of a member of schedule tribe cannot be transferred to non tribal. D. 1986 BLT (Rep.) 173 to submit that law of limitation under section 231 of the Act does not apply against illegal transfers. A person cannot acquire perfect title by adverse possession and that land transferred in contravention to section 240 of the Act constitutes a continuing wrong. E. 2008(5) Supreme 287 to submit that even the most solemn proceedings stand vitiated if they are actuated by fraud. F. AIR 1992 SC 195 to submit that the provision of section 71A is a beneficial provision for the protection of a class of persons therefore the same has to be given a liberal construction in their favour to protect their interests. G. 2004 (4) JCR 535 (Jhr) This judgment although has been passed under the provisions of Bihar Tenants Holdings (Maintenance of Records ) Act, 1973 but it has been held in that judgment that even the circle officer is not supposed to recognise possession of a person on the basis of void and illegal sale deed as against the rightful owner who is a member of the tribal community. 6. Counsel for the respondents on the other hand submitted that the petitioners have lost in all the three courts who have consistently held that the petition for restoration filed by the writ petitioners was time barred and there being no perversity in the impugned orders they do not call for any interference by this Court. Counsel for the respondents further submits that the case of the respondents before the Court below was that the property was settled in favour of Jogeshwar Sahu as back as in the year 1950 and subsequently in Title Suit No. 1/1967 the said property was the subject matter of the dispute and which ended in compromise on 04.02.1967. Counsel for the respondents further submits that the respondents are not claiming possession by way of compromise dated 4.02.1967 but it is the case of the petitioners that they were dispossessed by virtue of compromise dated 4.2.1967 passed in the said title suit. Counsel for the respondents further submits that the respondents are not claiming possession by way of compromise dated 4.02.1967 but it is the case of the petitioners that they were dispossessed by virtue of compromise dated 4.2.1967 passed in the said title suit. It is submitted that even if it is assumed, though not admitting, that the petitioners were disposed by virtue of compromise dated 04.02.1967 in Title Suit No. 1 of 1967, then also, the petitioners do not have a case as they have filed the application for restoration of land under Section 71 A of the Chotangpur Tenancy Act only in the year 2003 i.e. after expiry of more than 30 years and there is no explanation in the entire records as to why they did not take any steps right from the year 1967 till 2003. Accordingly, it is submitted that the petitioners have not exercised their right within the reasonable time as per the mandate of Section 71A of the Chotanagpur Tenancy Act,1908. The counsel further submits that admittedly the property is recorded as “Baskat Bhuinhari” and such land came under the purview of Chotanagpur Tenancy Act,1908 only by way of amendment in the year 1986 and as per the case of the petitioners they were dispossessed in the year 1967 and as per the respondents they are in possession since 1950. Accordingly it is submitted that section 71A of Chotanagpur Tenancy Act, 1908 has no applicability to the facts and circumstances of this case. The counsel for the respondents have relied upon various judgments passed by the Hon’ble Supreme Court reported in A. 2008(2) JCR 1 (SC) and 2004(4) JLJR (SC) 109 to submit that although no period has been prescribed for exercising powers under section 71 A of the said Act, but the same has to be exercised within a reasonable time; B. (2000) 5 SCC 141 to submit that in paragraph 16 of the said judgment it has been held that merely because section 71A commences with the words “ if at any time ….” It cannot be taken to mean that those powers could be exercised without any point of time limit. 7. 7. After considering the arguments advanced on behalf of the parties and after considering the materials on record in this writ petition, this court is not inclined to grant any relief to the petitioners on the following facts and reasons:- (i) It is the specific case of the writ petitioners that they were dispossessed by virtue of compromise decree dated 04.02.1967 in Title Suit No. 1/1967 and the case of the private respondents is that that they are in possession since 1950. Admittedly the property is of the nature of “Baskat Bhuinhari” which was brought under the purview of section 71A of Chotanagpur Tenancy Act,1908 only in the year 1986 by way of amendment. (ii) From the entire records of the case as well as from the arguments advanced by the counsel for the petitioners this court finds no explanation on behalf of the petitioners as to why nothing was done by the petitioners during the period from 04.02.1967( date of compromise decree, which according to them is the date of dispossession) till the date of filing of the application for restoration of land under Section 71A of the Chotanagpur Tenancy Act,1908 in the year 2003. The explanation of the counsel for the petitioners that the application for restoration was filed in the year 2003 immediately after creation of the holding number in the year 2000 and accordingly the application for restoration was filed within reasonable period, is also rejected, as the date of dispossession as per the petitioners themselves is 1967 and creation of holding number has nothing to do with dispossession of the petitioners. Moreover this point has been taken by the petitioners for the first time during the course of argument and no such plea was ever taken earlier before the authorities below or even in the writ petition. Petitioners have tried to take this point on the basis of the counter affidavit filed by the private respondents. (iii) Further it appears from the impugned order dated 15.01.2005 in SAR case no. 948 of 2003-04 that the private respondents have constructed the boundary wall, building and set up an unit namely “pawan saw mill” having registration dated 10.10.1983. The respondents in the counter affidavit have also stated about the establishment of the said unit which has not been disputed by the writ petitioners. 948 of 2003-04 that the private respondents have constructed the boundary wall, building and set up an unit namely “pawan saw mill” having registration dated 10.10.1983. The respondents in the counter affidavit have also stated about the establishment of the said unit which has not been disputed by the writ petitioners. Thus after the alleged compromise in the year 1967, which according to the petitioners is the date of dispossession, much water has flown and the respondents have acquired rights under the ordinary law as well as the law of limitation. It has been held in the judgment reported in (2000) 5 SCC 141 at para 16 as follows:- The submission that, in any event the contesting respondents cannot be allowed to hold the land they being non-tribals and the Deputy Commissioner is obliged to allot the same to some other tribal only does not merit our acceptance. Apart from the grounds on which we have rejected the claim of the appellant, we find that the High Court left open the question about the disputed character of the lands and the nature of interest surrendered which if had been properly considered and decided was likely to have an impact on the question of the very applicability of the statutory provisions to the case on hand. Merely because Section 71-A commences with the words “If at any time…” it cannot be taken to mean that those powers could be exercised without any point of time-limit, as in the case after nearly about forty years unmindful of the rights of the parties acquired in the meantime under the ordinary law and the law of limitation. We consider it, therefore, inappropriate to countenance any such contentions in these proceedings. It has been held in judgments reported in 2008(2) JCR 1 (SC) and 2004(4) JLJR (SC) 109 that powers under section 71 A of Chotanagpur Tenancy Act, 1908 has to be exercised within a reasonable time. We consider it, therefore, inappropriate to countenance any such contentions in these proceedings. It has been held in judgments reported in 2008(2) JCR 1 (SC) and 2004(4) JLJR (SC) 109 that powers under section 71 A of Chotanagpur Tenancy Act, 1908 has to be exercised within a reasonable time. (iv) Applying the ratio of the aforesaid judgment this court is of the considered view that the petitioners have not approached the S.A.R. Officer within the reasonable time as contemplated under the provisions of Section 71 A of the Chotanagpur Tenancy Act, 1908 and accordingly the same has been rightly dismissed by the S.A.R. officer vide the impugned order dated 15.01.2005 and the said order has been rightly upheld by the appellate authority as well as the revisional authority. (v) So far as judgments relied upon by the petitioners are concerned, this court finds that the judgments reported in 2003(4) JCR 206 ; 2014 (1) JLJR 92 ; 2008(5) Supreme 287 ; 2004(4) JCR 535 (JHR) and unreported judgment passed in W.P. (C) No. 234 of 2003 do not deal with the issue of limitation. Moreover even if it is assumed that the compromise is collusive but admittedly the same was within the knowledge of the petitioners since 1967 but they did not take any steps for restoration of land and suddenly they filed the application for restoration in the year 2003 after expiry of more than 35 years of their dispossession that too without any explanation for such delay. It is made clear that by holding that the application was time barred, this court is not giving any legitimacy to the compromise dated 4.2.1967, as it is not the case of the private respondents that they are in possession since 1967, but it is the case of the petitioners that they were disposed by virtue of the compromise dated 4.2.1967. Accordingly the judgments relied upon by the petitioners do not help the petitioners in any manner. (vi) In the judgment reported in (1986) B.L.T. (R.E.P.) 173, the petitioners of the said case claimed adverse possession over the property. Although the issue of limitation has been considered by saying that any transfer against the statute is continuing wrong, but this judgment does not apply to the facts of the present case as the provisions of Section 71(A) of the Chotanagpur Tenancy Act was not under consideration. Although the issue of limitation has been considered by saying that any transfer against the statute is continuing wrong, but this judgment does not apply to the facts of the present case as the provisions of Section 71(A) of the Chotanagpur Tenancy Act was not under consideration. Moreover in view of subsequent judgment passed by the Hon’ble Supreme Court reported in 2008 (2) JCR 1 (SC) that power for restoration under Section 71-A has to be exercised within the reasonable time. Accordingly this court finds that judgment reported in (1986) B.L.T. (R.E.P.) 173, does not help the petitioners in any manner. (vii) So far as judgment reported in A.I.R. 1992 S.C. 195 is concerned, in this case the Hon’ble Supreme court has held that the provision of section 71A of Chotanagpur Tenancy Act,1908 is a beneficial legislation and has to be liberally construed in favour of the persons for whom the same has been framed. This was the view of Hon’ble the Supreme Court while interpreting the term “transfer” which has not been defined under Chotanagpur Tenancy Act, 1908. So far as the limitation in filing the application for restoration of land is concerned this judgment has no application as the issue has been decided in the other judgments by the Hon’ble Supreme Court as considered above. In view of the circumstances, without any pronouncement on the legality and validity of the compromise decree, this court holds that the petitioners have not approached the S.A.R. Officer within the reasonable time from the date of dispossession and accordingly the proceeding was initiated beyond the period of limitation. This view has been taken by all the three authorities whose orders are under challenge in this writ petition. Under the aforesaid facts and circumstances, this court finds no illegality or perversity in the impugned orders. 8. This writ petition is accordingly dismissed.