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2021 DIGILAW 1051 (JHR)

Pranami Estates Pvt. Ltd. v. State of Jharkhand

2021-12-16

SUJIT NARAYAN PRASAD

body2021
JUDGMENT : The instant writ petition is under Article 226 of the Constitution of India, wherein, the direction has been sought for issuance of writ of certiorari for quashing the order dated 14.12.2011 passed by the Deputy Commissioner, Ranchi in S.A.R. Appeal No.07 of 2010, whereby and whereunder, the order passed by the Special Officer, Schedule Area Regulation, Ranchi dated 09.02.2010 dismissing the case of opposite parties (respondent no.5 to 8) for restoration of land in question as being not legal and valid and also barred by limitation, has been set aside by giving direction for restoration of land in favour of the respondent nos.5 to 8 as also to quash the order dated 25.05.2013 passed in S.A.R. Revision No.186 of 2011 by the Commissioner, South Chotanagpur Division, Ranchi, by which, the order passed by the Deputy Commissioner, Ranchi, has been confirmed. 2. The brief facts of the case, as per the pleading require to be enumerated which reads hereunder as: Respondent nos.5 to 8 filed an application for restoration of land pertaining to land bearing R.S. Plot No.1911 of Khata No.102, situated at Village-Simalia, P.S. Ranchi (now Ratu), District-Ranchi registered as S.A.R. Case No.317 of 2007-08 against Nilika Lal, wife of Shaildhari Lal and Sanjeev Tandon Lal, son of Shaildhari Lal. The Special Officer, Schedule Area Regulation, Ranchi has passed an order on 29.08.2008 which according to the writ petitioner is an ex-parte order since the order has been passed without service of notice upon the opposite parties herein i.e., Nilika Lal and Sanjeev Tondon Lal. The writ petitioner after coming to know about the said order had filed an application under Order I Rule 10(2) of the C.P.C. for being impleaded as opposite party in the aforesaid proceeding as also prayed for recall of the writ of delivery of possession. The claim of the writ petitioner is that the proceeding, which was initiated by the Special Officer, was misconceived and not maintainable since there is no contravention of either Section 46 or any other provisions of the Chhotanagpur Tenancy Act (hereinafter referred to as C.N.T.) Act, 1908 nor any fraudulent method has been adopted as also the case of the opposite parties barred by limitation and adverse possession. The other ground has been taken that the land under proceeding is Chhaparbandi created by virtue of registered deed dated 20.12.1954 and Chhaparbandi rent is also being realized, as such, no proceeding under Section 71 of the CNT Act would lie with respect to Chhaparbandi land. It is the further ground of the writ petitioner that Jatru Oraon, son of the recorded raiyat Bodho Oraon @ Bocho Oraon, voluntarily surrendered 4.94 acres of land including the land under proceeding of Khata No.102, under Khewat No.2 situated at Village-Simalia, P.S.-Ranchi, Thana No.139, District-Ranchi to the then landlord Kumar Brajendra Nath Shahdeo, son of Late Thakur Mahendra Nath Shahdeo by virtue of registered deed of surrender being Deed No.5684 dated 23.09.1954 and put the landlord in possession of the same, after coming into the possession. Thereafter, the landlord made permanent Chhaparbandi settlement of the aforesaid land to Shaildhari Lal (since deceased) by virtue of registered deed of Chhaparbandi settlement being Deed No.6739 dated 20.12.1954 and put the said settlee in possession of the same. The said settlee has mutated his name in the serista of State of Bihar through the Circle Officer, Kanke vide Mutation Case No.400R27 of 1956-57 and regularly paid the rent to the State. Therefore, according to the writ petitioner, the said Shaildhari Lal continued in peaceful possession and uninterrupted possession of the land and after his death, his widow Nilika Lal and his son Sanjeev Tandon Lal inherited the property and came into the possession thereof and got their names mutated by succession in the serista of the State of Jharkhand through the Circle Officer, Kanke Anchal, Ranchi Vide Mutation Case No.1925R27 of 2005-06 and regularly paid the rent to the State. The said Nilika Lal and Sanjeev Tandon Lal sold 0.85 acres of Land out of R.S. Plot No.1911 of Khata No.139 under Khewat No.2 of the said village to the petitioner by virtue of registered deed of sale dated 07.09.2006 being Deed No.13192 for a valuable consideration and put the petitioner in possession of the same. The petitioner is coming in peaceful possession since the date of purchase and has constructed boundary wall and other substantial structures over the land. The petitioner is coming in peaceful possession since the date of purchase and has constructed boundary wall and other substantial structures over the land. Thus, the ground has been taken that the Special Officer, Schedule Area Regulation, Ranchi without properly appreciating the material available on record, has passed the order dated 09.02.2010 by dismissing the case of the opposite parties (respondent nos.5 to 8 herein) for restoration of land in question as being not legal and valid and also barred by limitation. The opposite parties i.e., respondent nos.5 to 8 being aggrieved with the order of the Special Officer, Schedule Area Regulation, Ranchi preferred an appeal being S.A.R. Appeal No.07 of 2010 before the Deputy Commissioner, Ranchi who was passed an order on 14.12.2011 with a direction for restoration of land in favour of the appellants i.e., respondent nos.5 to 8 herein. Against the aforesaid order passed by the appellate authority dated 14.12.2011 in S.A.R. Appeal No.07 of 2010, revision was preferred before the revisional authority being S.A.R. Revision No.186 of 2011 by invoking the jurisdiction conferred under Section 217 of the Chhotanagpur Tenancy Act. The revisional authority has also rejected S.A.R. Revision No.186 of 2011 filed by the petitioner herein vide order dated 25.05.2013, hence, the present writ petition has been filed by invoking the jurisdiction of this Court conferred under Article 226 of the Constitution of India inter-alia on the ground that appellate as also the revisional authority have erred in passing the order without considering the fact that even if the transfer is illegal, it should have been considered that the predecessor in interests of the petitioner remained in peaceful possession of the land under proceeding besides others for a continuous period of 15 years prior to the date when the Bihar Schedule Area Regulation came into force. The ground has been taken that the appellate as also the revisional authority have erred in passing the order without considering the provision of Section 72(5) of the C.N.T. Act. Further ground has been taken that there is no consideration either by the appellate authority or by the revisional authority with respect to the finding recorded by the Special Officer so far as the issue of limitation is concerned. 3. In the backdrop of this ground, Mr. Manjul Prasad, learned Senior Counsel appearing for the petitioner assisted by Mr. Amit Kr. 3. In the backdrop of this ground, Mr. Manjul Prasad, learned Senior Counsel appearing for the petitioner assisted by Mr. Amit Kr. Tiwari, has submitted that the orders passed by the appellate as also the revisional authority are not sustainable in the eyes of Law. 4. Per Contra, Mr. Bhaskar Trivedi, learned AC to SC-III appearing for the State as also Ms. Nanda Kumari, learned counsel appearing for the respondent no.5 have jointly submitted by defending the order passed by the appellate as also the revisional authority on the ground that the Special Officer, Schedule Area Regulation, has not considered the fact about violation of permission of the Deputy Commissioner which required under both the provisions i.e., under Section 46 and Section 72 of the C.N.T. Act and therefore, the appellant authority has reversed the order passed by the Special Officer, Schedule Area Regulation which has been affirmed by the revisional authority, therefore, no error has been committed by both the authorities while reversing the order passed by the original authority. It has further been submitted that so far as the ground which is being taken by assailing the order passed by the appellant as also the revisional authority to the effect that there is substantial structure, as such, the nature of land has changed but merely because the structure has been made, the nature of land cannot be said to be Chhaparbandi in nature unless specific order to that effect is being passed by the competent authority but no such order has been brought on record before the original authority. Further argument has been made by the learned counsel appearing for the State as also the private respondent that transfer of both part of the land suffers from patent illegality since the part of the land which has been transferred is in violation of the provision of Section 46 of the C.N.T. Act. Further argument has been made by the learned counsel appearing for the State as also the private respondent that transfer of both part of the land suffers from patent illegality since the part of the land which has been transferred is in violation of the provision of Section 46 of the C.N.T. Act. Further, so far as the other part of the land is concerned which pertains to vesting due to surrender but even in the case of surrender, the permission of Deputy Commissioner is required before vesting it upon the landlord as per the provision of Section 72 of the C.N.T. Act but under both circumstances, there is no permission either under Section 46 or Section 72 of the CNT Act by the Deputy Commissioner and taking into consideration these foremost violation of the statutory provision which is beneficial legislation, the appellate as also the revisional authority have came to conclusive finding to be a fit case for restoration of land in favour of the respondent nos.5 to 8, therefore, the order passed by the Special Officer has been reversed. So far as the period of limitation is concerned, although, the Special Officer, Schedule Area Regulation has given a finding to that effect but what is the basis of such finding is not known to this Court as because, when the case of the writ petitioner has been called out, none has appeared before the Special Officer, then how the Special Officer, Schedule Area Regulation came to conclusion about debarment of the proceeding under the provision of Limitation Act. 5. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the Revenue Authority in the impugned order. 6. This Court before proceeding to examine the legality and propriety of the impugned order passed by the appellate authority as also the revisional authority and apart from that this Court also deems it fit and proper to examine the legality of the original order which has been reversed by the appellate authority. 7. 6. This Court before proceeding to examine the legality and propriety of the impugned order passed by the appellate authority as also the revisional authority and apart from that this Court also deems it fit and proper to examine the legality of the original order which has been reversed by the appellate authority. 7. But before proceeding to scrutinize the same, this Court deems it fit and proper to refer certain undisputed facts as per the material available on record which reads hereunder as:- Respondent nos.5 to 8 filed an application for restoration of land pertaining to land bearing R.S. Plot No.1911 of Khata No.102, situated at Village-Simalia, P.S. Ranchi (now Ratu), District-Ranchi registered as S.A.R. Case No.317 of 2007-08 against Nilika Lal, wife of Shaildhari Lal and Sanjeev Tandon Lal, son of Shaildhari Lal. The Special Officer, Schedule Area Regulation, Ranchi has passed an order on 29.08.2008 which according to the writ petitioner is an ex-parte order since the order has been passed without service of notice upon the opposite parties herein i.e., Nilika Lal and Sanjeev Tondon Lal. The writ petitioner after coming to know about the said order had filed an application under Order I Rule 10(2) of the C.P.C. for being impleaded as opposite party in the aforesaid proceeding as also prayed for recall of the writ of delivery of possession. The claim of the writ petitioner is that the proceeding which was initiated by the Special Officer was misconceived and not maintainable and there was no contravention of either Section 46 or any other provisions of the Chhotanagpur Tenancy Act (hereinafter referred to as C.N.T.) Act, 1908 nor any fraudulent method has been adopted as also the case of the opposite parties barred by limitation and adverse possession. The other ground has been taken that the land under proceeding is Chhaparbandi created by virtue of registered deed dated 20.12.1954 and Chhaparbandi rent is also being realized, as such, no proceeding under Section 71 of the CNT Act would lie with respect to Chhaparbandi land. The other ground has been taken that the land under proceeding is Chhaparbandi created by virtue of registered deed dated 20.12.1954 and Chhaparbandi rent is also being realized, as such, no proceeding under Section 71 of the CNT Act would lie with respect to Chhaparbandi land. It is the further ground of the writ petitioner that Jatru Oraon, son of the recorded raiyat Bodho Oraon @ Bocho Oraon, voluntarily surrendered 4.94 acres of land including the land under proceeding of Khata No.102, under Khewat No.2 situated at Village-Simalia, P.S.-Ranchi, Thana No.139, District-Ranchi to the then landlord Kumar Brajendra Nath Shahdeo, son of Late Thakur Mahendra Nath Shahdeo by virtue of registered deed of surrender being Deed No.5684 dated 23.09.1954 and put the landlord in possession of the same, after coming into the possession. Thereafter, the landlord made permanent Chhaparbandi settlement of the aforesaid land to Shaildhari Lal (since deceased) by virtue of registered deed of Chhaparbandi settlement being Deed No.6739 dated 20.12.1954 and put the said settlee in possession of the same. The said settlee has mutated his name in the serista of State of Bihar through the Circle Officer, Kanke vide Mutation Case No.400R27 of 1956-57 and regularly paid the rent to the State. Therefore, according to the writ petitioner the said Shaildhari Lal continued in peaceful possession and uninterrupted possession of the land and after his death, his widow Nilika Lal and his son Sanjeev Tandon Lal inherited the property and came into the possession thereof and got their names mutated by succession in the serista of the State of Jharkhand through the Circle Officer, Kanke Anchal, Ranchi Vide Mutation Case No.1925R27 of 2005-06 and regularly paid the rent to the State. The said Nilika Lal and Sanjeev Tandon Lal sold 0.85 acres of Land out of R.S. Plot No.1911 of Khata No.139 under Khewat No.2 of the said village to the petitioner by virtue of registered deed of sale dated 07.09.2006 being Deed No.13192 for a valuable consideration and put the petitioner in possession of the same. The petitioner is coming in peaceful possession since the date of purchase and has constructed boundary wall and other substantial structures over the land. The petitioner is coming in peaceful possession since the date of purchase and has constructed boundary wall and other substantial structures over the land. Thus, the ground has been taken that the Special Officer, Schedule Area Regulation, Ranchi without properly appreciating the material available on record has passed the order dated 09.02.2010 by dismissing the case of the opposite parties (respondent nos.5 to 8 herein) for restoration of land in question as being not legal and valid and also barred by limitation. The opposite parties i.e., respondent nos.5 to 8 being aggrieved with the order of the Special Officer, Schedule Area Regulation, Ranchi preferred an appeal being S.A.R. Appeal No.07 of 2010 before the Deputy Commissioner, Ranchi who was passed an order on 14.12.2011 with a direction for restoration of land in favour of the appellants i.e., respondent nos.5 to 8 herein. Against the aforesaid order passed by the appellate authority dated 14.12.2011 in S.A.R. Appeal No.07 of 2010, revision was preferred before the revisional authority being S.A.R. Revision No.186 of 2011 by invoking the jurisdiction conferred under Section 217 of the Chhotanagpur Tenancy Act. The revisional authority has rejected S.A.R. Revision No.186 of 2011 filed by the petitioner herein vide order dated 25.05.2013, hence, the present writ petition has been filed by invoking the jurisdiction of this Court conferred under Article 226 of the Constitution of India inter-alia on the ground that appellate as also the revisional authority have erred in passing the order without considering the fact that even if the transfer is illegal, it should have been considered that the predecessor in interests of the petitioner remained in peaceful possession of the land under proceeding besides others for a continuous period of 15 years prior to the date when the Bihar Schedule Area Regulation came into force. Further ground has been taken that the appellate as also the revisional authority have erred in passing the order without considering the provision of Section 72(5) of the C.N.T. Act. Further ground has been taken that there is no consideration either by the appellate authority or by the revisional authority with respect to the finding recorded by the Special Officer so far as the issue of limitation is concerned. Further ground has been taken that there is no consideration either by the appellate authority or by the revisional authority with respect to the finding recorded by the Special Officer so far as the issue of limitation is concerned. It is thus, evident that the part of the land to which the respondent nos.5 to 8 claim for its restoration is on the ground of violation of provision of Section 46 which has been transferred without seeking any permission from the Deputy Commissioner and the part of the land has been vested upon the landlord by way of surrender in view of the provision of Section 72 of the CNT Act, 1908 which also requires permission from the Deputy Commissioner without vesting it upon the landlord. Respondent Nos.5 to 8 had filed an application for restoration of the land in question. The proceeding has been initiated by the Special Officer, Schedule Area Regulation by issuing general notice inviting objection. Notice has been issued upon the opposite party i.e., the petitioner herein but as would appear from the order passed by the Special Officer, Schedule Area Regulation, nobody turned out to defend themselves and therefore, the matter has been posted for an ‘ex-parte’ hearing and accordingly, the order has been passed rejecting the application filed on behalf of respondent nos.5 to 8 for restoration of land under Section 71-A of the CNT Act to be not maintainable and barred by limitation and accordingly, the said application was rejected. It appears from the order passed by the Special Officer that while rejecting the said application under Section 71 of the CNT Act, the consideration has been made with respect to the fact that the land in question was surrendered under the provision of Section 71-A of the CNT Act on 05.01.1948 which has been presumed to be under the permission of the Deputy Commissioner. Further, it appears from the said order that the land was surrendered without any permission of the Deputy Commissioner and as such, the said surrender cannot be said to be proper but even if the said surrender is not in accordance with Law, the claim of the petitioner herein is based upon the possession over the land in question on the basis of the registered document dated 20.12.1954 made in favour of Shaildhari Lal. The said fact led to the Special Officer, Schedule Area Regulation to come to the finding of holding the petition under Section 71-A to be not maintainable and barred by limitation and accordingly it was rejected. Respondent Nos.5 to 8 have preferred an appeal before the appellate authority being S.A.R. Appeal No.07 of 2010-11 and the Deputy Commissioner, Ranchi after considering the factual aspect which was brought before it, has came to finding about violation of provision of C.N.T. Act, since according to the appellate authority, it was found that the land in question is a tribal land and prior permission of the Deputy Commissioner, Ranchi was necessary but the transfer of the land has been made without any permission of the Deputy Commissioner, Ranchi under Section 46 of the C.N.T. Act which according to the Deputy Commissioner, is gross violation of provision of the C.N.T. Act. So far as the disputed land of Khata No.102 of Village-Simalia is recorded in the name of Bocho Oraon, but the surrender of the land of Mouza-Simalia, Khata No.102, Area-4.94 acres was surrendered by Jatru Oraon, S/o Bocho Oraon, in favour of the then landlord, Kumar Brajendra Nath Shahdeo, Thus, the land of the joint property has been surrendered by the son of one recorded tenant, Bocho Oraon, which is not valid. Jatru Oraon, S/o Bocho Oraon has no right to surrender the land in question. Under the aforesaid factual aspect, the appellate authority has came to conclusion about the gross error in the order passed by the Special Officer and accordingly, the order passed therein has been reversed. The writ petitioner has preferred revision before the revisional authority but the revisional authority has found no reason to differ with the finding recorded by the appellate authority and therefore, the revision has been dismissed. Thus, it is evident from the material available on record that the issue involved herein for its consideration about two parts of the land under Khata No.102. The first part pertains to an area of 35 decimal under Plot No.1911, Mouza-Simalia, P.S. Ratu No.139, District-Ranchi and the second part of the land is under the same khata in the same village comprising an area of 4.91 acres which was surrendered by Jatru Oraon, S/o Bocho Oraon in favour of the then landlord Kumar Rajendra Nath Shahdeo. The first part pertains to an area of 35 decimal under Plot No.1911, Mouza-Simalia, P.S. Ratu No.139, District-Ranchi and the second part of the land is under the same khata in the same village comprising an area of 4.91 acres which was surrendered by Jatru Oraon, S/o Bocho Oraon in favour of the then landlord Kumar Rajendra Nath Shahdeo. The question which has been raised by the learned Senior Counsel appearing for the petitioner that the wrong finding has been recorded about violation of provision of Section 46 or Section 72 since according to the learned Senior Counsel, the surrender is different to that of transfer and permission of Deputy Commissioner is only required to be obtained in a case of transfer and not in a case of surrender. 8. But Mr. Prasad, learned Senior Counsel appearing for the petitioner subsequent to his argument has placed the order of Division Bench of Patna High Court passed in the case of Bhagwandas Vs. Koka Pahan, reported in 1980 0 BLJ 611 , wherein, proposition has been laid down at paragraph nos.4 and 5, which reads hereunder as:- “4. From the plain reading of Sec.71-A of the Act it will appear that the Deputy Commissioner has been empowered to restore land belonging to a member of Schedule Tribes if the transfer of his land has taken place in contravention of Sec.46 or any other provision of the Act or by any fraudulent method. The important word in this section is the word transfer. In the absence of anything to the contrary “transfer” as envisaged in the section must mean transfer as understood in the Transfer of Property Act. “Surrender” is not a transfer under the Transfer of Property Act rather it is a right given to a raiyat under the tenancy law to terminate the settlement whol3e or part and return either the whole holding or any part of it to the land lord. My considered opinion is that surrender being a right arising out the tenancy law without anything else it cannot be treated as a transfer and therefore Sec.71-A is not attracted in a case of surrender. 5. Mr. Sahai Sinha next contended that in this case surrender and settlement were part of the same transaction therefore Sec.46 of the Act was attracted and a proceeding under Sec.71-A of the Act was maintainable. 5. Mr. Sahai Sinha next contended that in this case surrender and settlement were part of the same transaction therefore Sec.46 of the Act was attracted and a proceeding under Sec.71-A of the Act was maintainable. There is no dispute about the legal position that if it is proved that the surrender of raiyat land of a member of the Schedule Tribe was brought about in order to take settlement of the same and in other words surrender and settlement are proved to be one transaction or both are parts of the same transaction. Sec.46 of the Act will be attracted consequently the proceeding under Sec.71-A of the Act will be maintainable. There is no evidence in this case that the surrender was brought about by the petitioner to obtain settlement of the land from the ex-landlord whether surrender and settlement were parts of the same transaction must be proved by the evidence and in the absence of any such evidence it cannot be presumed to be so. In the absence of any evidence on record, the finding of Respondent Nos.2 to 4 that the surrender and settlement were parts of the same transaction must be held to be perverse.” 9. But learned Senior Counsel, in all fairness has produced the judgment passed by the Hon’ble Full Bench of Patna High Court in the case of Smt. Bina Rani Ghosh Vs. Commissioner, South Chota Nagpur Division and other, reported in AIR 1985 Patna 352, wherein, the view which was taken by the Division Bench of this Court in the case of Bhagwandas Vs. Koka Pahan (supra) has not been held to be a good Law and accordingly, it has been laid down that the surrender and the settlement will form one single transaction and the provision of Section 71-A equally applied in a case of surrender of land under the provision of Section 72 so as also under Section 46 as would appear from paragraphs 24 and 25 of the judgment which reads hereunder as:- “24. If we analyse Section 71A we will notice that the Deputy Commissioner has been given power to restore raiyati land of a member of the Scheduled Tribes, if a transfer has taken place : - (i) in contravention of Section 46; (ii) in contravention of any other provisions of the Act; (iii) by any fraudulent method including decree obtained in suit by fraud and collusion. Decree of a Court by which the title of person is declared is not 'transfer' as generally understood; but by Clause (iii) it has also been included as a mode of transfer, albeit if the decree was obtained by fraud and collusion. There is no difficulty in understanding Clause (i) because what is transfer within the meaning of Section 46 has been enumerated in that Section. Clause (ii) speaks about transfer in contravention of any other provisions of the Act. In other words, besides Section 46, there are sections, transactions under which may amount to transfer. It is well settled that each word of a section must be given effect and so the words in Clause (ii) must have full play. Section 72 mandates that a raiyat whose lease is not for a fixed period, may surrender his holding or part thereof with the previous sanction of the Deputy Commissioner in writing. Any surrender made in contravention of Section 72 must be held to be bad in law. By surrender, right to hold land is given up by a raiyat in favour of another, who becomes entitled to hold the same. In effect, by surrender the raiyat looses his title in the land. The Legislature, therefore, provided that surrender may be made only with previous sanction of the Deputy Commissioner in writing. It must, therefore, be held that provisions referred to in Clause (ii) is Section 72. Surrender of right by a raiyat in his land must be held to be transfer within the meaning of Section 71A and statute provides that if it was made in contravention of Section 72, the surrender may be annuled. 25. In the proceeding under Section 71A, it was also held that there was clear nexus between the surrender and the settlement and they formed one single transaction. Mr. Sinha strenuously argued that this finding was perverse as it was not supported by evidence. 25. In the proceeding under Section 71A, it was also held that there was clear nexus between the surrender and the settlement and they formed one single transaction. Mr. Sinha strenuously argued that this finding was perverse as it was not supported by evidence. Apart from what have been stated by the learned Chief Justice, even assuming that there was no evidence on the basis of which that finding can be sustained, in view of the fact that as the surrender was made without the previous sanction in writing of the Deputy Commissioner, there had been contravention of Section 72; consequently, it must be held that land so surrendered could have been restored under Section 71A of the Act.” 10. Learned Senior Counsel after putting reliance upon the judgment rendered by the Hon’ble Full Bench of the Patna High Court has submitted that now questions which is to be looked into by this Court is as to whether the transfer which has been said to be illegal in absence of permission of the Deputy Commissioner, can be held to be a valid finding in view of the fact that the nature of land has become Chhaparbandi as also the issue of limitation. 11. Before answering the issue, this Court deems it fit and proper to refer the provision of Section 46(1)(a)(b) and Section 46(3) which reads hereunder as:- “46. Restrictions on transfer of their right by raiyat.-(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. (3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognized as valid by any Court, however in exercise, of civil, criminal or revenue jurisdiction. (3-A) 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 suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.” 12. Section 72 also requires to be referred which reads hereunder as:- “72. Section 72 also requires to be referred which reads hereunder as:- “72. Surrender of land by Raiyat-(1) A Raiyat not bound by a lease or other agreement for a fixed period may, at the end of any agricultural year surrender his holding [with the previous sanction of the Deputy Commissioner in writing]. (2) But, notwithstanding the surrender, the Raiyat shall be liable to indemnify the landlord against any loss of the rent of the holding for the agricultural year next following the date of the surrender, unless he gives to his landlord, at least four months before he surrenders, notice of his intention to surrender. (3) The Raiyat may, if he thinks fit, cause the notice to be served through the Court of the Deputy Commissioner within whose jurisdiction the holding or any portion of it is situate. (4) When a Raiyat has surrendered his holding, the landlord may enter on the holding and either let it to another tenant or to take it into cultivation himself. (5) Nothing in this Section shall affect any arrangement by which a Raiyat and his landlord may arrange for a surrender of the whole or a part of the holding [with the previous sanction of the Deputy Commissioner in writing].” It is, thus, evident from the provision of Section 46 that the transfer of land of the occupancy raiyat to be a valid transfer only in a case where the Deputy Commissioner grants such permission, while Section 72, it is in a case of surrender but before vesting it upon the landlord, the permission of Deputy Commissioner is also required as would be evident from Section 72 of the Act, therefore, either under Section 46 or Section 72, the permission of Deputy Commissioner is necessary. 13. It is also equally settled that although under the provision of Section 71-A of the CNT Act, there is no time frame for filing an application but as has been held by the Hon’ble Apex Court in the case of Situ Sahu & Ors. Vs. State of Jharkhand & Ors., reported in 2004 (4) JCR SC 211, wherein, it has been laid down that under Section 71A of the C.N.T. Act, it has been stipulated that an application for restoration of the land can be dealt with, if filed within reasonable time. Vs. State of Jharkhand & Ors., reported in 2004 (4) JCR SC 211, wherein, it has been laid down that under Section 71A of the C.N.T. Act, it has been stipulated that an application for restoration of the land can be dealt with, if filed within reasonable time. Herein, it is the admitted case of the writ petitioner that there is no permission of the Deputy Commissioner as required either under Section 46 or Section 72 of the Act. However, the main thrust of argument that the Special Officer, Schedule Area Regulation has rejected the application filed under Section 71-A holding it barred by limitation and presuming the possession of the writ petitioner from the year 1954 and as such, the original authority has gone into the principle of adverse possession. 14. This Court, therefore, deems it fit and proper to deal with these two grounds. So far as the first ground is concerned that admittedly the reference has been made by the Special Officer, Schedule Area Regulation about application under Section 71-A being barred by limitation but the question is that how the original authority has given such finding. It is the admitted case of the writ petitioner that the order passed by the Special Officer, Schedule Area Regulation is an ex-parte order. The question herein is that the issue which will be raised by the competent authority is required to be dealt with but not on the basis of personal knowledge of the concerned authority or the Court of Law. The matter would have been different if the writ petitioner would had appeared before the original authority and raised the point of limitation by showing the documents and leading the evidence on that ground but since the proceeding itself was an ex-parte, therefore, there was no occasion of consideration of documents which was in favour of the writ petitioner on the issue. 15. Therefore, according to the considered view of this Court, on reference of ground of rejection, an application filed under Section 71-A being time barred cannot be said to be a just finding of the original authority. 16. This Court, further deems it fit and proper to refer the question of limitation being an issue of mixed question of law and fact. 16. This Court, further deems it fit and proper to refer the question of limitation being an issue of mixed question of law and fact. A specific pleading to that effect is required to be made before the concerned authority but no such application has been brought on record by the writ petitioner raising the issue of limitation however, submission has been made that there is no question of any objection since the order has been passed ex-parte even such argument will be accepted then also it was incumbent upon the writ petitioner to raise this objection before the appellate authority but as would appear from the order passed by the appellate authority no such plea has been made, save and except, the ground that the settlement cannot construe to be transferred. 17. Therefore, according to the considered view of this Court, the issue of limitation which has been raised by the writ petitioner cannot be said to be a valid ground for its consideration at this stage. 18. So far as the second ground is concerned that the nature of land since has been changed from Raiyat to Chhaparbandi, therefore, provision of C.N.T. Act will not be applicable. It is not in dispute that the land, if Chhaparbandi in nature, the provision of C.N.T. Act will not be applicable rather the provision of Transfer of Property Act will be applicable. But merely by taking the point that the nature of land has been changed from Raiyati to Chhaparbandi, is not sufficient rather the specific plea to that effect is required to be taken on the basis of the relevant documents for its consideration before the competent authority but as would appear from the order passed by the original authority as also the appellate or revisional authority, no such document has ever been produced on behalf of the petitioner, save and except, the plea that the writ petitioner is not in possession of the land since the year, 1954. Therefore, according to the considered view of this Court, the aforesaid ground of change of nature of land to that of Chhaparbandi, is not fit to be acceptable. Therefore, according to the considered view of this Court, the aforesaid ground of change of nature of land to that of Chhaparbandi, is not fit to be acceptable. Admittedly, the authorities have also considered the question of surrender which was done by one of the shareholders of the Raiyat, namely, Jatru Oraon while the other partners have not come even though the land was settled in favour of one Bocho Oraon by the ex-landlord and as such, the surrender is illegal in absence of permission of Deputy Commissioner as required under Section 72 of the Act, 1908. 19. This Court, therefore, is of the view that no valid reason has been shown for issuance of writ of certiorari by this Court in exercise of power conferred under Article 226 of the Constitution of India. 20. It requires to refer herein the principle of issuance of writ of certiorari as has been held by the Hon’ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan and Ors., A.I.R. 1964 SC 477, wherein at paragraph no.7 their Lordships have been pleased to held as follows:- “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955 (1) SCR 1104 : ((S) AIR 1955 SC 233 ); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 . Reference in this regard also may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors., AIR 1955 SC 233 , it has been held at Paragraph-21, which is being referred hereinbelow :- “…….as to the character and scope of the writ of ‘certiorari’ and the conditions under which it could be issued. The question has been considered by this Court in ‘Parry and Co. Ahmad Ishaque and Ors., AIR 1955 SC 233 , it has been held at Paragraph-21, which is being referred hereinbelow :- “…….as to the character and scope of the writ of ‘certiorari’ and the conditions under which it could be issued. The question has been considered by this Court in ‘Parry and Co. v. Commercial Employees’ Association, Madras,’ AIR 1952 SC 179 (L):-‘Veerappa Pillai v. Raman and Raman Ltd.’ AIR 1952 SC 192 (M); ‘Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi,’ AIR 1952 SC 319 (N), and quite recently in AIR 1954 SC 440 (C). On these authorities, the following propositions may be taken as established: (1) ‘Certiorari’ will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in “certiorari”…….” In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh and Anr. Vrs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been pleased to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)……… 13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” Thus, it is evident that the scope of issuance of writ of certiorari is very limited and it can only be issued in case of order passed having jurisdictional error or suffers from patent illegality on the face of it but no such ground has been made out. 21. Therefore, according to the considered view of this Court, it is not a fit case where interference can be shown in the impugned order. 22. Accordingly, the instant writ petition fails and is, dismissed. 23. Pending Interlocutory Application(s), if any, stands disposed of.