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2019 DIGILAW 855 (JHR)

Mansa Ram Manjhi v. State of Jharkhand

2019-04-11

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is filed under Article 226 of the Constitution of India wherein the order dated 16.01.2019 passed in SAR Revision No.04 of 2018 by the Divisional Commissioner Singhbhum (Kolhan) Division, Chaibasa, is under challenge whereby and where under the order passed in Schedule Area Regulation Appeal No.07 of 2013-14 as also filed in SAR Appeal has been reversed and the restoration application filed under Section 71-A of Chotanagpur Tenancy Act has been held to be barred by limitation since the said application has been filed after lapse of the period of 30 years. 2. It is the case of the petitioner that he being a tribal and the land in question has been recorded in the records of rights in his favour but the same has been transferred in the name of the private respondents without following the provision of law as stipulated under the provision of Chotanagpur Tenancy Act, and therefore, an application under Section 71-A of the CNT Act, 1908 has been filed for restoration of the said land since the land has been transferred in violation of the provision of Section 46 of the aforesaid Act where there is mandatory requirement of transfer with the permission of the Deputy Commissioner. He further submits that since the private respondents are not a tribal and therefore, in any case, it cannot be transferred even after the permission having been granted under the provision of Section 46 because there is complete embargo in transfer of land from the tribal to the non-tribal under the provision of Chotanagpur Tenancy Act. 3. When the application under Section 71-A of the Act, 1908 has been filed, the Scheduled Area Regulation Officer has allowed the same in favour of the petitioner which has been affirmed by the appellate authority but against which the private respondents have filed an application before the revisional authority under the provision of Section 217 of the Chotanagpur Tenancy Act, 1908 wherein the order passed by the Scheduled Area Regulation Officer as also the Appellate Authority i.e., the Deputy Commissioner of the concerned District has been reversed holding therein that the proceeding being barred by the limitation since the application under Section 71-A of the Act, 1908 has been filed after lapse of the period of 30 years. The said order has been assailed in the instant writ petition on the ground that since there is complete embargo in transfer of the land, therefore, the Revisional Authority ought not to have gone into the technicality rather the spirit and intent of the Act was to be appreciated but instead of doing so, merely on the ground of limitation of 30 years, the Revision petition has been allowed setting aside the order passed by the original as well as appellate authority, therefore, the same is not sustainable. The learned counsel appearing for the State-respondent has submitted that there is no error in the order passed by the Revisional Authority. He submits that although the provision of the CNT Act has been enacted in order to look after the interest of the people living in the scheduled area in whose name the land has been recorded in the records of right, save and except, permission being accorded by the Deputy Commissioner under the provision of Section 46 of the Act, 1908 but the question herein but application for restoration in pursuance to the provision made under Section 71-A of the Act, 1908 needs to be filed within the period of limitation i.e., 30 years but admittedly, herein the petitioner has filed the application for restoration after lapse of more than a period of 30 years, therefore, the Revisional Authority, after appreciating that aspect of the matter, has set aside the order passed by the Original as well as the Appellate Authority, hence, there is no infirmity in the order. 4. Heard the learned counsel for the parties and after appreciation of their rival submissions the undisputed fact in this case is that the petitioner who happens to be the tribal and the land has been recorded in his name in the records of rights. The said land, according to the petitioner has illegally been transferred in favour of the private respondents who happens to be non-tribal. 5. The said land, according to the petitioner has illegally been transferred in favour of the private respondents who happens to be non-tribal. 5. The petitioner being aggrieved with the same has made an application under Section 71-A of the Chotanagpur Tenancy Act, 1908 for restoration of the said land on the ground that since there is a complete embargo in transferring the land from the tribal to non-tribal, has passed the order for restoration of the land in question in favour of the petitioner, against which, the private respondents have approached before the Appellate Authority who has affirmed the order passed by the Revisional Authority against which the private respondents have filed revision by invoking the jurisdiction conferred under Section 217 of the Act, 1908. The Revisional Authority has reversed the findings recorded by the original as well as the appellate authority on the ground of limitation, hence, the present writ petition has been filed. 6. Before entering into the merit of the claim of the petitioner, it needs to refer certain provisions of the CNT Act along with the scope and object. The CNT Act has been enacted in the year 1908 by which the protection has been given to the raiyati rights of the persons who are members of the scheduled tribes. The provision has been made under Section 46 of the Act which imposes restriction on transfer of their rights by raiyats which speaks as follows:- “[46. Restrictions on transfer of their rights by raiyats. The provision has been made under Section 46 of the Act which imposes restriction on transfer of their rights by raiyats which speaks as follows:- “[46. Restrictions on transfer of their rights by raiyats. - (1) No transfer by a raiyat of his right in his holding or any portion thereof-- (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a raiyat may enter into a bhugut bundha mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B&O. Act VI of 1935) for any period not exceeding fifteen years : Provided further that-- (a) an occupancy-raiyat who is a member of the [scheduled tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person who is a member of the Scheduled tribe and] who is a resident within the local limits of the area of the police-station within which the holding is situate; (b) an occupancy-raiyat who is a member of the [Scheduled Castes or backward classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the [Scheduled Castes or, as the case may be backward classes] and who is a resident within the local limits of the district within which the holding is situate; (c) any occupancy-raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935) or to the State Bank of India or a bank specified in column 2 of the First Schedule to the banking companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which not less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy-raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.] (2) A transfer by a raiyat of his right in his holding or any portion thereof under sub-section (1) shall be binding on the landlord. (3) No transfer in contravention of sub-section (1) shall be registered or shall be in any way recognised as valid by any Court, whether in exercise of civil, criminal or revenue jurisdiction. [(3A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suit is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.] (4) At any time within three years after the expiration of the period for which a raiyat has, under clause (a) of subsection (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the raiyat put the raiyat into possession of such holding or portion in the prescribed manner. [(4A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by occupancy-raiyat who is a member of the Scheduled Tribe, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to subsection (1), hold an enquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1): Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter. (b) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may in the circumstances of the case deem fit. (c) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be, and put the transferor in possession thereof: Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order, as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chotanagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provision of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor. (5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a raiyat's right in his holding or any portion thereof made bonafide before the first day of January 1903 in the Chota Nagpur Division except the district of Manbhum, or before the first day of January, 1909, in the district of Manbhum. (5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a raiyat's right in his holding or any portion thereof made bonafide before the first day of January 1903 in the Chota Nagpur Division except the district of Manbhum, or before the first day of January, 1909, in the district of Manbhum. [(6) In this section [and in section 47]-- (a) “Scheduled Castes” means such castes, races or tribes as are specified in Part II of the Schedule to the Constitution (Scheduled Castes) Order, 1950; (b) “Scheduled Tribes” means such or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Schedule to the Constitution (Scheduled Tribes) Order, 1950: and (c) “backward classes” means such tribes, classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.]” 7. In the original statute, there was no provision of making an application for restoration which has been inserted by way of an Amendment brought in the year 1969 known as Scheduled Area Regulation, 1969 by which the provision of Section 71-A has been inserted which contains a provision of restoration of the land in favour of the members of the Scheduled Tribes if the land has illegally been transferred. The provision of Section 71-A by way of beneficial legislation enacted for the purpose of safeguarding the interest of the members of the scheduled tribes if the transfer has been effected in violation of the provision as contained in the provision of CNT Act, 1908. It is evident from the provision of first proviso to Section 71-A that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner, shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed. The issue of limitation fell for consideration before this Court in several cases, reference of the same needs to be made i.e., in the cases of Bukan Ansari & Ors. vs. The State of Bihar & Ors., reported in 1992(2) PLJR 238 , Md. Salimuddin Dhaiba Khan vs. Commissioner, South Chotanagpur Division, Ranchi, reported in 1993(1) PLJR 14 , Fulchand Munda vs. State of Bihar, reported in 2008(3) BLJ 16-SC and the judgment referred in the impugned order delivered in the case of Situ Sahu & Ors. vs. State of Jharkhand & Ors., reported in 2004 (4) JCR 211 (SC). Judgment rendered by the Hon'ble Apex Court in the case of Bukan Ansari (supra) wherein it has been held at paragraph-6 under the Schedule Areas 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, while at Paragraph-7 it has been laid down that the application for restoration under Section 71-A of the Act may be entertained even after the expiry of period of 30 years, only for the purpose of proviso appended to section 71A of the Act. Judgment rendered in the case of Md. Salimuddin @ Dhaiba (supra) it has been laid down that the restoration of application is to be filed within a period of 30 years save and except if the application is being made for restoration under the third proviso to Section 71-A. Judgment rendered by the Hon'ble Apex Court in the case of Fulchand Munda (supra), it has been held at Paragraph-5 dealing with the provision of Section 71-A of the Chhotanagpur Act, has been pleased to hold that although there is no period of limitation prescribed for exercising the power under Section 71-A by the Deputy Commissioner, the party affected is called upon to approach the appropriate authority or the power has to be exercised by the Deputy Commissioner within a reasonable period of time. The gap of more than 50 years for challenging the transaction of 1922 cannot be said to be a reasonable time for exercising the power even if it is not hedged in by a period of limitation. Judgment rendered in the case of Situ Sahu & Ors. The gap of more than 50 years for challenging the transaction of 1922 cannot be said to be a reasonable time for exercising the power even if it is not hedged in by a period of limitation. Judgment rendered in the case of Situ Sahu & Ors. (supra) wherein the Hon'ble Apex Court the is pleased to hold that the period of limitation of 30 years is lapsed for making an application for restoration of the possession of land. 8. Herein, in the instant case that the restoration application has been filed by the private respondent for transfer of the land in question in violation to the provision of Section 46 of the Act, on the ground that the petitioner/opposite party were residing forcefully upon the land in question and therefore it is a case to be covered under the third proviso of Section 71-A and hence the period of limitation of 30 years will be applicable as decided and held by the Hon'ble Apex Court in the judgments referred hereinabove. Herein, the petitioner has tried to make out a case that there is no permission as required under the provision of Section 46 of the Act, 1908 hence the transfer is null and void but question herein is that the petitioner ought to have approached before the competent authority within a reasonable period, herein the reasonable period, as has been decided in the aforesaid judgments, is 30 years but as would transpire from the impugned order that from the date of dispossession i.e., as per the version of the applicant regarding the possession of the non-tribal person since the year 1948, the application for restoration has been filed after lapse of more than 40 years, therefore, the same has been held to be not filed within the reasonable period rather long after the period of limitation of 30 years, therefore, the application for restoration under Section 71-A has been held to be not maintainable. 9. It is not in dispute that the Chotanagpur Tenancy Act has been enacted in order to look into the interest of the tribal residing in the scheduled area where the act is applicable but simultaneously it is also to be seen by the Court of Law as has been held in the judgment rendered hereinabove that the application for restoration is to be filed within the reasonable period. 10. Mr. 10. Mr. Birendra Burman, learned counsel for the petitioner at this juncture has submitted that the Court should not go on technicality and should not have rejected merely on the ground of period of limitation without looking into the merit of the issues but this argument is not having any foundation for the reason that a litigant is supposed to invoke the jurisdiction of the competent authority within a reasonable period and when there is no period of limitation as provided under the stature but as has been held by the Hon'ble Courts in the judgments rendered hereinabove, an application for restoration of the land in contemplation of the provision of Section 71-A of the Act, 1908 is to be filed within a period of 30 years from the date of dispossession, therefore, it cannot be said to be technicality rather the limitation goes to the root and as such it to be seen by the Court of Law as to whether the parties are vigilant from the rights or not; The Revisional Authority, after appreciating these aspects of the matter, has passed the order by reversing the order passed by the original as well as the appellate authority and therefore, this is not a case warranting any interference by this Court in exercise of power conferred under Article 226 of the Constitution of India by issuing a writ of certiorari. 11. Accordingly, the writ petition fails and is dismissed.