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2022 DIGILAW 645 (JHR)

Suhari Devi @ Sahari Devi v. State of Jharkhand

2022-06-13

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2022
ORDER : I.A. No.2187 of 2022 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 129 days in preferring this Letters Patent Appeal. 2. Heard parties. 3. Having regard to the averments made in the application and submissions made on behalf of the parties, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 129 days in preferring the appeal is hereby condoned. 4. I.A. No. 2187 of 2022 stands allowed. L.P.A. No.222 of 2019 The instant appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 04.09.2018 passed by learned Single Judge of this Court in W.P.(C) No.7313 of 2012 whereby and whereunder the writ petition has been dismissed by declining to interfere with the order dated 24.07.12 passed by respondent no. 2 allowing land Restoration Revision No. 50/04 filed by the respondents 6 to 8 whereby the order dated 07.04.04 passed by respondent no. 3 in R.A.N. Case No. 01/01 restoring the lands in question in favour of the petitioner, has been set aside and the order dated 03.10.94 passed by respondent no. 4 in land Restoration Case No. 14/93 whereby the claim of restoration of the lands in question in favour of the petitioner has been rejected. 2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- It is the case of the writ petitioner that Land Restoration Case No. 14/1993 was initiated by the Land Reforms Deputy Collector, Hazaribag on the basis of letter issued by the Circle Officer, Mandu bearing Letter No. 586 dated 6.6.1986 and vide order dated 03.10.1994 Land Restoration Case was dismissed by holding that the said authority could not figure out the date on which recorded tenants were dispossessed from the property and simultaneously also recorded that recorded tenants were dispossessed for more than 12 years. It is the further case of the writ petitioner that the order dated 03.10.1994 passed in Land Restoration Case No. 14/1993 was challenged before the appellate authority in R.A.N. Case No. 1/2001 wherein the appellate authority recorded that the private respondents had placed their claim on illegal documents and the petitioner was dispossessed for a period less than 12 years and accordingly appeal was allowed. The private respondents filed revision before the revisional authority being Land Restoration Revision No. 50/2004 which was disposed of vide order dated 24.07.2012. The revisional authority recorded that the private respondents herein were in possession of the property since 1934. The writ petitioner, being aggrieved with the order passed by the revisional authority dated 24.07.2012 in Restoration Revision No.50/2004, invoked the jurisdiction conferred to this Court under Article 226 of the Constitution of India by filing writ petition being W.P.(C) No.7313 of 2012 taking the ground that the continuous Khatiyan prepared after vesting carries the name of the ancestors of the petitioner showing possession as also various documents filed by way of supplementary affidavit, have not been considered. The private respondents appeared and took the ground that the restoration proceeding was initiated on the basis of a report of the Circle Officer contained in letter dated 06.06.1986 wherein it was observed that the recorded tenants were dispossessed for more than 20 years. The learned Single Judge, after taking into consideration the fact about the filing of the restoration application during the statutory period of 12 years as stipulated under Section 46(4)-A of the Chota Nagpur Tenancy Act, 1908 (hereinafter to be referred to as the Act, 1908), has dismissed the writ petition, against which the present intra-court appeal has been preferred. 3. Mr. M.K.Roy, learned counsel appearing for the appellant-writ petitioner, has submitted that the learned Single Judge has not appreciated the fact that the writ petitioner was in possession over the land in question and within 12 years the restoration application has been filed but without its consideration the learned Single Judge upheld the order passed by the revisional authority wherein the revisional authority has come to conclusive finding about filing of restoration application after the period of 12 years as stipulated under Section 46(4)-A of the Act, 1908, therefore, the order passed by the learned Single Judge is not sustainable in the eyes of law. He further submits that the finding recorded by the learned Single Judge by holding the restoration application having been filed beyond the period of 12 years is based upon no substantial evidence and, as such, on this ground alone the order passed by the learned Single Judge should be held to be not sustainable. 4. While on the other hand, Mr. Rakesh Kr. Shahi, learned A.C. to S.C.(L&C)-I, appearing for respondent State of Jharkhand, has taken the plea defending the order passed by the learned Single Judge wherein the ground has been taken that the fact about dispossession of the private respondents from the land in question as has been referred in the order passed by the authority is of the year 1934 and there is no response to that dispossession and, therefore, the order passed by the appellate authority, wherein the appellate authority has come to conclusion of filing of the restoration application within the period of 12 years, has been reversed by the revisional authority taking the date of dispossession from the year 1934. Therefore, if the writ petition has been dismissed by upholding the order passed by the revisional authority basing upon the reason of filing of the restoration application after the period of 12 years and taking it into consideration if the learned Single Judge has upheld the view of the revisional authority, it cannot be said to suffer from error and, therefore, the prayer has been made to dismiss the instant appeal. 5. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. 6. The undisputed fact in this case as per the pleading made in the writ petition is that the land in question is being claimed by the private respondents by virtue of transfer in an auction proceeding, being Certificate Case No.632 of 1933, and accordingly possession over the land in question was given in favour of the private respondents as back as on 24.11.1934 and the private respondents claim possession over the land in question since the year 1934. Based upon the report of the concerned Circle Officer, a proceeding was initiated for restoration of the aforesaid land by the Land Reforms Deputy Collector, Hazaribagh, being Land Restoration Case No.14/1993 wherein the Land Reforms Deputy Collector has dismissed the aforesaid restoration application on the ground that the recorded tenants were dispossessed for more than the period of 12 years and as such, the restoration application has been held to be barred by limitation as per the provision contained under Section 46(4)-A of the Act, 1908. The appellant/writ petitioner preferred an appeal before the appellate authority being R.A.N. Case No.1/2001. The appellant authority reversed the order passed by the Land Reforms Deputy Collector by holding the dispossession of the writ petitioner within the period of 12 years. The private respondents preferred revision before the revisional authority being Land Restoration Revision No.50/2004 which was disposed of vide order dated 24.07.2012 wherein the revisional authority has reversed the order passed by the appellate authority by holding the year of dispossession of the private respondents from the property in question since 1934 and, therefore, the entire proceeding has been held to be barred by limitation having been filed after lapse of 12 years. The appellant-writ petitioner, being aggrieved with the order passed by the revisional authority, approached this Court by filing writ petition being W.P.(C) No.7313 of 2012 which having been dismissed, against which the present intra-court appeal has been filed. 7. This Court, after appreciating the rival submissions advanced on behalf of the parties, deems it fit and proper to refer the provision of Section 46(4-A) of the Act, 1908, which reads as hereunder :- “46. Restrictions on transfer of their right by Raiyat. - … … 1. … … 2. … … 3. 7. This Court, after appreciating the rival submissions advanced on behalf of the parties, deems it fit and proper to refer the provision of Section 46(4-A) of the Act, 1908, which reads as hereunder :- “46. Restrictions on transfer of their right by Raiyat. - … … 1. … … 2. … … 3. … … (4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry 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 subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.” It is evident from the aforesaid provision that in case of transfer of land having in the non-schedule area, the application for its restoration is required to be filed within 12 years, if transferred without the permission of the Deputy Commissioner of the concerned district. 8. Herein, the plea has been taken on behalf of the writ petitioner that the land in question has been transferred in favour of the private respondents and within the period of limitation of 12 years, taking it into consideration the Circle Officer conducted an enquiry and submitted a report before the Deputy Collector Land Reforms, based upon the said report a proceeding was initiated for restoration of the land in question being Land Restoration Case No.14/1993. The Deputy Collector Land Reforms, however, dismissed the restoration application holding the said application barred by limitation since the same was filed beyond the period of 12 years. The appellate authority reversed the same holding that the application has been filed within the period of 12 years. However, the same was reversed by the revisional authority. 9. The Deputy Collector Land Reforms, however, dismissed the restoration application holding the said application barred by limitation since the same was filed beyond the period of 12 years. The appellate authority reversed the same holding that the application has been filed within the period of 12 years. However, the same was reversed by the revisional authority. 9. It is an admitted fact that the private respondents are claiming possession over the land in question since the year 1934 by virtue of transfer in an auction proceeding, being Certificate Case No.632 of 1933. The appellant-writ petitioner has not disputed the aforesaid year of transfer of land since the land in question has been purchased by way of auction purchase. The appellate authority, however, has cast aspersion upon the court whereby the land has been transferred by way of auction purchase. 10. The question is that when the land has been transferred by way of an auction in Certificate Case No.632 of 1993 and by virtue of the same if anyone has come into possession of the land, unless the proceeding will be reversed by any court of law, such plea of commission of illegality is not available to be raised by the parties. The appellant-writ petitioner has not rebutted the transfer of the land said to have been made in the year 1934. The revisional authority, on appreciation of the transfer of land in the year 1934, has reversed the finding recorded by the appellate authority holding the restoration application to be barred by limitation since the same was filed after lapse of 12 years. 11. The legal position is explicit as per Section 46(4-A) of the Act, 1908 which stipulates that the application for restoration of land can be filed within the period of 12 years if the land has been transferred without the permission of the Deputy Commissioner falling in the non-schedule area. The revisional authority has considered the transfer of the land way back in the year 1934 and counting the limitation from the year 1934, conclusion has been arrived at that the application for restoration admittedly has been filed in the year 1993, therefore, the same is beyond the period of 12 years and the restoration application which was allowed by the appellate authority has been reversed by upholding the order passed by the Deputy Collector Land Reforms. 12. 12. The learned Single Judge on appreciation of the legal position of filing of the restoration application, as per the provision of Section 46(4-A) of the Act, 1908 which provides to file such application within the period of 12 years from the date of possession, but herein, the appellant-writ petitioner since has not furnished any date of possession in rebuttal to the year of possession of the year 1934, as per the case of the private respondents and, as such, the conclusion arrived at in upholding the order passed by the revisional authority dated 24.07.2012 in Land Restoration Revision No.50/2004, which according to our considered view, cannot be said to suffer from any error. 13. Accordingly, the instant appeal fails and is dismissed.