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2019 DIGILAW 527 (JHR)

Surendra Deogam v. State of Jharkhand

2019-02-21

RONGON MUKHOPADHYAY

body2019
ORDER : 1. No one appear on behalf of the petitioners. However, Mr. Pratik Sen, learned counsel appearing for the private-respondents is present. 2. In this writ application, the prayer of the petitioners is for quashing of the order dated 30.04.1992 passed by the respondent no. 6 in S.A.R. Case No. 17 of 1970-71 directing the respondent nos. 7 and 8 to pay a sum of Rs. 1,52,202/- as compensation to the petitioners under the second proviso to Section 71A of the C.N.T. Act to re-validate the transfer of the lands measuring 0.38 acres being Plot No. 894 of Khata No. 37 and 0.16 acres of land in Plot No. 895 of Khata No. 38 situated at village Kaparsai, P.S. Chaibasa, District- Singhbhum (West). The petitioners have also prayed for quashing of the order dated 16.07.1997 passed by the respondent no. 3 dismissing S.A.R. Appeal No. 26 of 1996-97 as well as the order dated 29.06.1999 passed by the respondent no. 2 in which S.A.R. Revision No. 278 of 1997 was dismissed. 3. The facts of the case as would appear from the writ application is that on the basis of a report of the Area Manki the Kolhan Superintendent held an enquiry and on being satisfied that the respondent nos. 7 and 8 [since substituted by respondents nos. 8(a) to 8(f)] had occupied the lands measuring 0.38 acres being Plot No. 894 of Khata No. 37 and 0.16 acres being Plot No. 895 of Khata No. 38 situated at village Kaparsai, P.S. Chaibasa, District- Singhbhum (West) belonging to the member of a Scheduled Tribe initiated a proceeding under Section 71A of the C.N.T. Act against the respondent nos. 7 and 8 which was registered as Misc. Case No. 17 of 1970-71. 4. A show cause was filed that there was no contravention of the provisions of the C.N.T. Act and that the concerned respondents have raised structures over the lands in question but however vide order dated 31.08.1971 under the first proviso to Section 71A of the C.N.T. Act the respondent nos. 7 and 8 were directed to remove the structures and restore the lands to the petitioners. 5. Being aggrieved with the order dated 31.08.1971 the respondent nos. 7 and 8 preferred T.A. Misc. Appeal No. 56 of 1971-72 before the Deputy Commissioner, Singhbhum which however was dismissed on 06.12.1972. 6. 7 and 8 were directed to remove the structures and restore the lands to the petitioners. 5. Being aggrieved with the order dated 31.08.1971 the respondent nos. 7 and 8 preferred T.A. Misc. Appeal No. 56 of 1971-72 before the Deputy Commissioner, Singhbhum which however was dismissed on 06.12.1972. 6. Against the dismissal of the appeal the respondent nos. 7 and 8 preferred revision being Revision No. 1 of 1975 before the Commissioner, South Chotanagpur Division, Ranchi which was dismissed vide order dated 05.04.1975 with an observation that the concerned respondents are free to move before the Special Officer for reconsideration of the matter under second proviso to Section 71A of the C.N.T. Act, if, they so desired. 7. The matter went up to the Board of Revenue, Patna where it also stood dismissed and there after it travelled to the Patna High Court in which C.W.J.C. No. 776 of 1976 was instituted which was dismissed as withdrawn with an observation that the Special Officer Scheduled Areas Regulation ought to pass an appropriate order under the second proviso of Section 71A of the C.N.T. Act. 8. The concerned-respondents subsequently preferred application before the S.D.O. Sadar, Chaibasa in S.A.R. Case No. 17 of 1970-71 which was dismissed and which was affirmed by the Deputy Commissioner, Singhbhum on 25.06.1983 in T.A. Misc. Appeal No. 4/1980-81. 9. Once again the concerned-respondents preferred a writ application before this court in which a direction was given to the Special Officer Scheduled Areas Regulation to pass a fresh order keeping in view the direction given in C.W.J.C. No. 776 of 1976. The L.R.D.C. Sadar, Chaibasa thereafter had called for a report from the Circle Officer, Chaibasa vide order dated 08.08.1991 about the nature of the structures and the lands in question and whether the structures are temporary or permanent. Subsequently the L.R.D.C. Sadar, Chaibasa had passed an order on 30.04.1992 in which compensation was determined under the second proviso to Section 71A of the C.N.T. Act to the tune of Rs. 1,52,202/-. 10. The petitioners thereafter preferred an appeal being S.A.R. Appeal No. 13/1992-93 before the Deputy Commissioner, Singhbhum and ultimately on being transferred to the Additional Deputy Commissioner, Singhbhum the appeal was dismissed on 16.07.1997 and which was affirmed by the revisional forum being the Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No. 278 of 1997 vide order dated 29.06.1999. 10. The petitioners thereafter preferred an appeal being S.A.R. Appeal No. 13/1992-93 before the Deputy Commissioner, Singhbhum and ultimately on being transferred to the Additional Deputy Commissioner, Singhbhum the appeal was dismissed on 16.07.1997 and which was affirmed by the revisional forum being the Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No. 278 of 1997 vide order dated 29.06.1999. The subsequent orders by which the compensation has been determined under the second proviso to Section 71A of the C.N.T. Act and which was affirmed up to the revisional forum has been challenged by the petitioners in the present writ application. 11. As could be derived from the averments made in the writ application the plea which has been taken by the petitioners for setting aside the impugned orders is that it had been consistently held in the first round of litigation that the transfer of land in favour of the respondent nos. 7 and 8 was in contravention of the provisions of C.N.T. Act and therefore the land was rightly restored in favour of the petitioners. It is also the consistent case of the petitioners that the respondent nos. 7 and 8 have failed to prove that there was a permanent structure over the land in question before coming into force of Regulation 1 of 1969 and in such circumstances therefore the benefit of the second proviso to Section 71A of the C.N.T. Act could not have been extended to the respondent nos. 7 and 8. 12. On the other hand Mr. Pratik Sen, learned counsel appearing for the private-respondent no. 7 and private-respondent nos. 8(a) to 8(f) has submitted that the report of the Circle Officer clearly denotes that the structure which was found on the land in question was more than 30 years old and that there is a Saw Mill over the land in question as well as a house meant for labourers and therefore there being a substantial structure over the premises in question which had come up prior to the enactment of Scheduled Areas Regulation, 1969, the learned courts below had therefore rightly extended the benefit of the second proviso to Section 71A of the C.N.T. Act. 13. Initially in the proceeding instituted under the provisions of the C.N.T. Act a direction was given by the Special Officer Scheduled Areas Regulation that the respondent nos. 13. Initially in the proceeding instituted under the provisions of the C.N.T. Act a direction was given by the Special Officer Scheduled Areas Regulation that the respondent nos. 7 and 8 had occupied the land belonging to the petitioners and therefore they were directed to restore possession in favour of the petitioners. In the revision application preferred by the petitioners although no interference were made with respect to the initial order of vacating the land in question but a liberty was given to the respondent nos. 7 and 8 for moving the Special Officer for reconsideration of the matter under proviso (2) to Section 71A of the C.N.T. Act. The second round of litigation was primarily with respect to the observations of the Commissioner, South Chotanagpur Division, Ranchi in which it was established that a permanent structure is in existence in the land in question and therefore under the second proviso to Section 71A of the C.N.T. Act a compensation was fixed to the tune of Rs. 1,52,202/-. The genesis for coming to such finding was a report of the Circle Officer, Sadar, Chaibasa wherein it was concluded that the structures which were found in the disputed land was more than 30 years old. It would thus mean that the structures had come up prior to the coming into force of the Scheduled Areas Regulation, 1969. Some oral evidences had also been adduced in which it appears that the structures were present much prior to 1969 and further more the report of the Circle Inspector dated 07.08.1969 reveals that there is a Saw Mill over Plot No. 894 and a house over Plot No. 896. 14. In the case of Pashupati Nath Mandal vs. Commissioner, South Chotanagpur Division, Ranchi and Others, 2010 (4) JLJR 575 , it was held with respect to the burden of proof regarding the second proviso to Section 71A of the C.N.T. Act as follows: “4. In our opinion, considering the purpose and spirit of the provision in Section - 71A namely to protect the simple and helpless tribals from deprivation of their land by unscrupulous and more intelligent persons, it would be desirable to hold that the burden of pleading and proving the facts which would bring the case within the aforesaid exception carved out by the second proviso would be entirely upon the transferee.” 15. It was therefore for the respondent nos. It was therefore for the respondent nos. 7 and 8 to prove that a substantial structure permanent in nature was existing in the land in dispute prior to coming into force of the Scheduled Areas Regulation, 1969. 16. It also appears that the respondent nos. 7 and 8 have taken the plea of existence of structures even during the first round of litigation which perhaps compelled the Commissioner, South Chotanagpur Division, Ranchi in the revision application to observe and give liberty to the respondent nos. 7 and 8 to move before the Special Officer for consideration of their claim under the second proviso to Section 71A of the C.N.T. Act. The various reports which have been considered indicates that the respondent nos. 7 and 8 have been able to discharge their burden of proof regarding the existence of a permanent structure in the land in question and therefore the authorities-concerned had rightly extended the benefit of second proviso to Section 71A of the C.N.T. Act. 17. Further more the valuation of the land has also been considered based on the minimum valuation fixed by the sub-registrar for the purposes of stamp duty. The valuation of the land also cannot be in such circumstances interfered with. 18. Consequent to what has been discussed above, there being no grounds to cause interference in the impugned orders dated 30.04.1992, 16.07.1997 and 29.06.1999, this writ application fails and the same is hereby dismissed. Writ Petition dismissed.