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2023 DIGILAW 1510 (JHR)

Ram Sewak Sahu v. State of Jharkhand

2023-12-21

NAVNEET KUMAR, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : Sujit Narayan Prasad, J. 1. The instant appeal under clause 10 of the Letters Patent is directed against the order/judgment dated 14.08.2018 passed by the learned Single Judge of this Court in W.P.(C) No. 6437 of 2010, whereby and whereunder the learned Single Judge has refused to interfere with the order passed by the appellate as well as revisional authority by dismissing the writ petition. 2. The brief facts of the case as per the pleading made in the writ petition, which require to be enumerated herein, read as under: The private respondents had filed an application for restoration of land under Khata No. 79, Plot Nos. 1116 and 1119 of Village Dighiya, P.S.-Bero, District-Ranchi under Chotanagpur Tenancy Act. The plot no.1116 having area of 0.65 decimals of land of the aforesaid village was sold to Khaiya Sahu and Bodha Sahu in the year 1946 by Morha Oraon and Sukhu Oraon over which Bodha Sahu and Karu Sahu have constructed house and are residing over the same and Karu Sahu also constructed a house in the year 1948 on 0.03 acres of land over the said plot. Two cases were instituted bearing SAR No. 94 of 1993-94 and SAR No. 95 of 1993-94 and the concerned authority allowed the application for restoration and on the basis of report of the Circle Officer indicating that the period of construction over the property was around 35 years old, permitted the petitioners to retain the property upon payment of compensation. Against this, the private respondents filed appeal before the appellate authority being S.A.R. Case No. 02 R-15/1998 – 99 and the appellate authority passed the order dated 24.06.2010 setting aside the order dated 28.01.1998 passed in SAR Case No. 94/1993-94 and SAR Case No. 95/1993-94. Being aggrieved with the appellate order, the writ-petitioners filed revision being S.A.R. Revision No. 60 of 2010 but the said revision was also dismissed vide order dated 16.11.2010. Being aggrieved with the same, the writ petitioners approached before this Court by filing writ petition being W.P.(C) No. 6437 of 2010 which has also been dismissed declining to interfere with the order passed by the appellate as well as the revisional authority, against which the instant appeal has been preferred. 3. Being aggrieved with the same, the writ petitioners approached before this Court by filing writ petition being W.P.(C) No. 6437 of 2010 which has also been dismissed declining to interfere with the order passed by the appellate as well as the revisional authority, against which the instant appeal has been preferred. 3. It is evident from the factual aspect as per the pleading made in the writ petition as referred hereinabove that two cases were instituted bearing Case No. 94 of 1993-94 and Case No. 95 of 1993-94 for the purpose of restoration of land being land under Khata No. 79, Plot Nos. 1116 and 1119 of Village Dighiya, P.S.- Bero, District- Ranchi under Section – 71A of Chotanagpur Tenancy Act, 1908. It needs to refer herein that the present appeal is only with respect to the order passed in connection with plot no. 1116 which. The Special Officer, Scheduled Area Regulation has passed an order under second proviso to Section 71-A of the Chhotanagpur Tenancy Act by coming to the conclusion that the land was having with the substantial structure existing prior to coming into effect of the Scheduled Area Regulation Act, 1969. Accordingly, the compensation was directed to be paid as per the statutory command as under second proviso to Section 71-A of the CNT Act, 1908. The private respondents preferred an appeal being S.A.R. Case No. 02 R-15/1998 – 99 which was allowed by quashing and setting aside the order dated 28.01.1998 passed in SAR Case No. 94/1993-94 and SAR Case No. 95/1993-94. The appellants-writ petitioners, being aggrieved with the order passed by the appellate authority, has preferred a revision being S.A.R. Revision No. 60 of 2010 which was dismissed vide order dated 16.11.2010 declining to interfere with the order passed by the appellate authority against which the writ petition was filed being W.P.(C) No. 6437 of 2010 which has been dismissed against which the present appeal has been preferred. 4. Mr. 4. Mr. V.P. Singh, learned senior counsel appearing for the appellants-writ petitioners has taken the following grounds in assailing the impugned order: (i) The learned Single Judge has failed to appreciate the fact that the Special Officer, Scheduled Area Regulation in passing the order in Case No. 94 of 1993-94 and Case No. 95 of 1993-94 has come out with the conclusive finding based upon the enquiry conducted by the Circle Officer dated 21.10.1997 whereby and whereunder, it has come that the construction over the plot no. 1116 arising out of an area of 0.42 acres was having with the substantial structure over the last 35 years. The Special Officer, Scheduled Area Regulation based upon the said report has found the case under the second proviso to Section 71A of the CNT Act, 1908, as such, has passed the order compensating the private respondents as per the rate assessed based upon the market rate. The private respondents have accepted the said order and also withdrew the money. The ground, therefore, has been taken that once the substantial structure has been found to be there over the land in question existing prior to coming into effect of the Scheduled Area Regulation, 1969, hence, it is now the admitted case that the case is to be dealt with under second proviso to Section 71A of the CNT Act, 1908. The Special Officer, Scheduled Area Regulation after coming to the conclusive finding about the substantial structure having been found prior to coming into effect of the Scheduled Area Regulation, 1969, has passed the order of compensation so as to compensate the raiyats, the private respondents herein. (ii) The private respondents, being aggrieved with the said order passed by the Special Officer, Scheduled Area Regulation, preferred an appeal which had been allowed. It has been contended by referring to the appellate order that there is no consideration of the factual aspect which was raised before him and hence, the order passed by the appellate authority is not sustainable in the eyes of law. It has been contended by referring to the appellate order that there is no consideration of the factual aspect which was raised before him and hence, the order passed by the appellate authority is not sustainable in the eyes of law. (iii) The writ petitioner/appellant herein being aggrieved with the order passed by the appellate authority, preferred revision by taking the ground that various issues have been raised regarding the locus of the private respondents, acceptance of the amount as determined under second proviso to Section 71-A of the Act and the amount having been accepted by the private respondents, the revisional authority has not appreciated the aforesaid fact, therefore, the writ petitioners were compelled to file writ petition before the learned Single Judge again raising the same issue which was raised before the revisional authority but the learned Single Judge has also not appreciated the aforesaid fact in right perspective, hence, the instant appeal. 5. Per contra, Mr. Rahul Kumar, learned counsel for the private respondents has defended the order passed by the appellate authority, revisional authority as also the judgment passed by the learned Single Judge on the following grounds: (i) The original authority while considering the case under second proviso to Section 71A of the CNT Act, 1908 committed gross illegality since the same has been passed based upon a report dated 21.10.1997 wherein the land has been shown to have construction over the last 35 years. The report dated 27.08.1997 although was before the Special officer, Scheduled Area Regulation but subsequent to the same, another report was called for from the Circle Officer, Bero wherein it was reported about the period of construction of the land over the land in question to be 35 years ago. The contention, therefore, has been made that if the Circle Officer, has already given a report on 27.08.1997 showing the construction over the land in question within 20-25 years which is after coming into effect of the Scheduled Area Regulation Act, 1969 but only in order to frustrate the statutory provision as contained therein for making the applicability of second proviso in order to validate the transfer for making compensation in favour of raiyat, another report was obtained on 21.10.1997 which is subsequent to the earlier report wherein the land has been shown to have construction over the last 35 years. (ii) The contention has been made that the learned Single Judge has considered the aforesaid aspect of the matter and as such, has agreed with the view taken by the appellate as also the revisional authority who have found the case of non-applicability of second proviso to Section 71-A of the Act. (iii) Submission has been made that it is a case where the Special Officer, Scheduled Area Regulation has passed an illegal order based upon the report dated 21.10.1997 but without giving any cogent finding with respect to the construction having been available since last 35 years said to be prior to enactment of the Scheduled Area Regulation Act, 1969. 6. The learned counsel has submitted that although the compensation amount has been paid as would appear from the order passed by the Special Officer, Scheduled Area Regulation in SAR Case No. 94/1993-94 and 95/1993-94 but the said amount has not been handed over in favour of the private respondents who were the original applicant before the Special Officer, Scheduled Area Regulation rather in favour of one Jaura Oraon who was never party to the proceeding, hence, even accepting the amount of compensation has been paid in favour of one Jaura Oaon but that cannot be said to be a ground to be agitated for not entertaining this application on the ground that the amount of compensation was fixed by the Special Officer, Scheduled Area Regulation has been accepted by Jaura Oraon who has been said to be legal heir of the khatiyani raiyat rather requirement as per the law to compensate the legal heir of the raiyat who are party to the proceeding and application for the purpose of restoration of the land and not to the party who is intruder to the proceeding. 7. The ground has been taken that the order passed by the appellate authority is not sustainable in the eyes of law since the contesting respondent who was the legal heir of the appellants-writ petitioner on date but without getting him substituted through the legal heir, the order has been passed. 8. 7. The ground has been taken that the order passed by the appellate authority is not sustainable in the eyes of law since the contesting respondent who was the legal heir of the appellants-writ petitioner on date but without getting him substituted through the legal heir, the order has been passed. 8. Learned counsel for the private respondents in response to the said submission has submitted that it is incorrect on the part of the appellant to take the ground that the order has been passed against the dead person since the order sheet reflects that both the parties have been directed to apprise the revenue authority about their status as to whether the parties are alive or dead and if required to file substitution application but very surprisingly the concerned party did not bother to file any substitution application in a case and now the ground is being taken that the original respondents had died. 9. It is also incorrect on the part of the appellant to take the ground that no opportunity was given to the appellants-writ petitioners and unilaterally has been fixed for orders even though the order dated 28.05.2010 shows that both the parties are absent but it would be evident from the finding recorded by the appellate court that the appellant and respondents absent on call and as such, the matter was adjourned by directing the appellant to file written argument on 10th June and the case was posted for orders. However, on each and every date, the parties have been represented as would appear from the order sheet and thereafter in pursuance of the direction passed on 28.05.2010, no written argument was filed by the respective parties, as such, based upon the material placed on record, the order was passed by the appellate authority. 10. The question now has been raised that when both the parties all along had been represented by the counsel, if chosen not to appear and opportunity to file written argument was given and even if the opportunity was not availed in subsequent stage, the plea cannot be allowed to be taken that the prejudice has been caused. 11. 10. The question now has been raised that when both the parties all along had been represented by the counsel, if chosen not to appear and opportunity to file written argument was given and even if the opportunity was not availed in subsequent stage, the plea cannot be allowed to be taken that the prejudice has been caused. 11. Learned counsel has further submitted by referring to the order of the revisional authority wherein all aspect of the matter has been taken into consideration and considering the fact that no cogent evidence of having substantial structure prior to coming into effect of Scheduled Area Regulation Act, 1969 is there, hence, declined to interfere with the order passed by the appellate authority. 12. Learned counsel has further submitted based upon the aforesaid documents that the learned Single Judge has also appreciated the facts in entirety and came to the conclusion that the case is wherein there is no applicability of second proviso to Section 71-A of the CNT Act since there is no cogent evident to have construction existing prior to coming into force of the Scheduled Area Regulation Act. 13. Further the learned Single Judge has come to the conclusion that no cogent evident has been produced with respect to the date of dispossession. Learned counsel has submitted based upon the ground that the order passed by the appellate court, revisional court and the judgment passed by the learned Single Judge, therefore, suffers from no infirmity. 14. Mr. Indranil Bhaduri, learned counsel for the respondent- State has supported the argument advanced on behalf of the learned counsel for the private respondents in entirety. 15. We have heard the learned counsel for the parties, perused the documents available on record ad also the finding recorded by the learned Single Judge in the impugned order. 16. The fact which is not in dispute in this case is that a proceeding has been initiated on the application made by one Mangu Oraon. 17. The case was contested by the appellants-writ petitioners herein by taking two-fold grounds. 16. The fact which is not in dispute in this case is that a proceeding has been initiated on the application made by one Mangu Oraon. 17. The case was contested by the appellants-writ petitioners herein by taking two-fold grounds. First, that there is no violation of Section 46 of the CNT Act since due permission is there and second which has been said to be alternative ground that even accepting there is no permission of the Deputy Commissioner as required under Section 46 of the CNT Act even then the transfer needs to be validated by taking into consideration the provision of Scheduled Area Regulation Act, 1969. 18. It appears from the order passed by the Special Officer, Scheduled Area Regulation that he came to the conclusion that the land has been transferred without seeking permission from the Deputy Commissioner as required under Section 46 of the Act. However, he has called for a report from the Circle Officer regarding the availability of construction and if construction is there then what is the date of such construction so as to give a finding about the applicability of the Scheduled Area Regulation Act, 1969. 19. It appears from the record which is part of the paperbook that there are two reports, i.e., one report is dated 27.08.1997 as contained in letter no.597(2). It appears from the said report dated 27.08.1997 that the report was submitted with respect to Khata No. 79 Plot No.1116 which comprised of 0.65 acres of land out of which 0.41 acres of land is the subject matter of restoration. The period of construction has been shown to be last 25 years. For ready reference, the details which is by way of tabular chart is being reproduced as under: 2½ IykaV uaŒ 1116 ,oa 1119 jdck 0-65 ,dM+ tehu ij vkoklh; ljapuk dh fLFkfr fuEu izdkj ls gS& ¼d½ [kkrk uaŒ 79 IykV uaŒ 1116 jdck 0-65 ,dM+ ØŒlaŒ vkoklh; lajpuk fdldk gS fdruh Hkwfe ij vofLFkr gS fuekZ.k ds o"kZ dh tkudkjh vuqekfur ewY; 1- iDdk@dPpk edku ,oa /kjokjh Ukkjk;.k lkgq firk [kS;k lkgq 0-12 MhŒ yxHkx yxHkx 25 o"kksZ ls izrhr gksrk gS 150000@& 2- iDdk@dPpk edku ,oa /kjokjh Ckks/kk lkgw firk LoŒ eaxy lkgw 0-23 MhŒ yxHkx 100000@& 3 dPpk edku /kjokjh dk: lkgq firk exy lkgw yxHkx 0-30 MhŒ yxHkx 30 o"kksZ ls izrhr gksrk gS 75000@& 20. The second report is dated 21.10.1997 which is also part of the paperbook which contains reference of the letter no.597(II) dated 27.08.1997. It appears from the said report which contains details of the period of construction over khata no.79 Plot no. 1116 area 0.65 acres showing therein the construction over the land in question over the last 35 years. For ready reference, the said tabular chart is being reproduced as under: ¼d½ [kkrk uaŒ 79 IykaV uaŒ 1116 jdck 0-65 ,dM ØŒlaŒ vkoklh; ljapuk fdldk gS fdruh Hkwfe ij vofLFkr gS fuekZ.k ds o"kZ dh tkudkjh vuqekfur ewY; 1- iDdk@dPpk edku ,oa /kjokjh ukjk;.k lkgw firk [kS;k lkgw 12 MhŒ yxHkx yXkHkx 35 o"kksZ ls izrhr gksrk gS 150000@& 2- iDdk@dPpk edku ,oa /kjokjh cks/kk lkgq firk LoŒ eaxy lkgq 23 MhŒ yxHkx 100000@& 3- dPpk edku /kjokjh dk: lkgq firk exay lkgq 30 Mh yxHkx 75000@& 21. The Special Officer, Scheduled Area Regulation although has called upon a report and the said report was also received which is dated 27.08.1997 but has not been considered wherein the construction has been shown for the last 25 years but the consideration was given to another report dated 21.10.1997 wherein the construction has been shown to be present over the last 35 years. 22. The Special Officer, Scheduled Area Regulation based upon the report dated 21.10.1997 has brought the fact of the case under the Scheduled Area Regulation Act, 1969 presuming the construction over there for the last 35 years which has been treated to be prior to Scheduled Area Regulation Act, 1969 and accordingly, had passed the order under second proviso to Section 71-A of the CNT Act, 1908 by making compensation to the raiyat. 23. The said order was carried to appeal being SAR No.94/1993-94 and 95/1993-94 dated 28.01.1998 in Appeal No. 2/R-15/1998-99 by the raiyats and the ground was taken that there is no construction said to be available prior coming into effect of the Scheduled Area Regulation Act, 1969, hence, it is a case where the land is to be restored in view of the provision of Section 71-A since the same was taken over the possession by the appellants-writ petitioners without having any permission from the Deputy Commissioner as required under Section 46 of the CNT Act. 24. 24. The appellate authority has accepted the said submission and has reversed the order passed by the Special Officer, Scheduled Area Regulation by holding that the land is fit to be restored since the same has been transferred without any permission as required under Section 46 of the CNT Act. The revisional authority has taken the same view. 25. Thus, it is evident that the Special Officer, Scheduled Area Regulation has considered the case not of restoration of land as per the application filed for restoration in absence of permission required under Section 46 of the CNT Act rather considered the case under second proviso to Section 71-A. 26. The question which requires to be looked into by this Court that what was the occasion for the Special Officer, Scheduled Area Regulation to have two reports. Whether actually it was warranted, if yes, what was the reason and whether such reason is there in the order passed by the Special Officer, Scheduled Area Regulation. 27. This Court, in order to answer the said issue, deems it fit and proper to refer the provision of Section 46 and Section 71-A of the CNT Act, which read as under: “[46. Restrictions on transfer of their right by Raiyat. 27. This Court, in order to answer the said issue, deems it fit and proper to refer the provision of Section 46 and Section 71-A of the CNT Act, which read as under: “[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: 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 Tribes 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 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 subsection (1) shall be binding on the landlords. (3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever 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.] (4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (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. [(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. (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 Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions 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 (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. (5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. [(6) In this Section [and in Section 47],- (a) "Scheduled Casted" means such castes, races or tribes as are specified in Part II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950; (b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and (c) "Backward classed" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.] [71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. – If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat [or a Mundari Khunt-Kattidaror a Bhuinhari] who is a member of the Scheduled Tribes has taken place in contravention of Section 46 [or Section 48 or Section 240] or any other provisions of this Act or by any fraudulent method, [including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding : Provided 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 : 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 coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor: Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another Raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable.]” 28. Section 46 put embargo upon the transfer of land of the raiyat falling under the Scheduled Area. The Section 71-A contains a provision that if at any time it comes to the notice of the Deputy Commissioner that the land has been transferred by way of lease transfer or any mode as provided under the Transfer of Property Act without permission of the Deputy Commissioner, such transfer is to be annulled after providing opportunity of hearing to the parties concerned. 29. The second provision speaks for validating such transfer if there is substantial structure found to be there prior to coming into effect of the Scheduled Area Regulation Act, 1969. The substantial structure as has been defined under Section 71-A of the CNT Act is being reproduced as under: “"substantial structure” or “building" means structure or building the value of which on the day of initiation of inquiry, was determined by the Deputy Commissioner to exceed Rs. 10,000 but does not include structure or building of any value, the material of which can be removed without substantially impairing the value of.” 30. Although Section 71-A starts with the word “if at any time” but the same has been clarified by the Hon'ble Apex Court in the case of Situ Sahu & Ors. vs. State of Jharkhand & Ors. [2004 (4) JCR SC 211] that at any time does not mean that the application for restoration is to be filed beyond the reasonable period rather it be filed within reasonable period by taking note of article 65 of the Limitation Act, 1969 by considering the period of 30 years contained therein. However, herein, there is no issue of limitation but only for the purpose of clarification, the same is being referred here. 31. It is evident from the provision of regulation 01.01.1969, a substantial structure is to be there so as to validate the transfer, meaning thereby, evidence is required to be led by non-raiyat with the cogent evidence that the substantial structure was there existing prior to coming into effect of the Scheduled Area Regulation Act, 1969. 32. 31. It is evident from the provision of regulation 01.01.1969, a substantial structure is to be there so as to validate the transfer, meaning thereby, evidence is required to be led by non-raiyat with the cogent evidence that the substantial structure was there existing prior to coming into effect of the Scheduled Area Regulation Act, 1969. 32. It is admitted case herein that no documentary evidence has been produced by the learned counsel for the appellants-writ petitioners although it is onus upon him to substantiate the case of having substantial structure prior to coming into effect of the Scheduled Area Regulation Act, 1969 since the said provision is by way of exception in order to validate the transfer and when any raiyat is taking the plea then it is onus upon him to substantiate the said claim. Such necessity is due to the reason that the second proviso to Section 71-A is by way of exception to validate the invalid transfer if the substantial structure is found to be there prior to Scheduled Area Regulation Act, 1969 which is strictly to be provide so as to take advantage of the exceptional provision. 33. Herein, the admitted fact in this case is that no evidence has been led with respect to the fact of having substantial structure said to be existed prior to coming into effect of the Scheduled Area Regulation Act, 1969 and that is the reason the Special Officer, Scheduled Area Regulation has called upon a report from the circle officer and in terms of the report dated 27.08.1997, the construction has been shown to be existed prior to 25 years ago. 34. The said report although was there on record but very surprisingly another report was called for by making reference of the earlier report dated 27.08.1997 and now this time in subsequent report the construction over the land has been shown to be 35 years ago. 35. The Special Officer, Scheduled Area Regulation has called for the second report but there is no reference of any reason therein as to what warranted him to call for the second report. 36. 35. The Special Officer, Scheduled Area Regulation has called for the second report but there is no reference of any reason therein as to what warranted him to call for the second report. 36. This Court, in absence of any reason to that effect, is of the view that there was no requirement to call for the second report which is absolutely in contradiction to establish the right of the appellants-writ petitioners of having construction over the land in question since in earlier report it was 25 years but in the subsequent report it is 35 years. The reason for calling upon the said report, according to our view, is if the report dated 27.08.1997 would have been taken into consideration then the construction was said to be post Scheduled Area Regulation Act, 1969 and it is for this reason the second report was called for showing the land said to be there for the last 35 years and by doing that the construction has been shown to be prior to coming into effect of the Scheduled Area Regulation Act, 1969. 37. This Court, on consideration of the aforesaid fact, is of the view that while calling upon the second report and in absence of any reason thereof, the Special Officer, Scheduled Area Regulation has committed gross illegality. 38. Further, apart from the said report dated 21.10.1997 which in conflict with the earlier report dated 27.08.1997 there is no other evidence to come to the conclusive finding of having substantial construction over the land in question said to be existed prior to coming into effect of the Scheduled Area Regulation Act, 1969. 39. The aforesaid fact has been carried to the appeal and the appellate authority has found the case of no substantial construction prior to 1969 in absence of any cogent evidence and the same was the finding recorded by the revisional authority. 40. Learned counsel for the appellants-writ petitioners has taken the ground that in view of the order passed by the Special Officer, Scheduled Area Regulation for making payment of compensation, the money was also deposited and the same was accepted by the raiyats. 41. 40. Learned counsel for the appellants-writ petitioners has taken the ground that in view of the order passed by the Special Officer, Scheduled Area Regulation for making payment of compensation, the money was also deposited and the same was accepted by the raiyats. 41. Serious objection has been made to such submission and the admitted case of the appellants-writ petitioners is that the amount of compensation was received by Jaura Oraon who has been considered to be one of the legal heirs of the recorded raiyat, therefore, question has been raised that when the contesting raiyat had not accepted the amount of compensation, hence, merely because the raiyat who was not party to the proceeding had accepted the amount of compensation, the same cannot be said to be accepted by the contesting raiyats. 42. We have appreciated the aforesaid argument and in order to come to the conclusion in this regard, have gone across the record and found that the contesting raiyat, namely, Mangu Oraon who had been substituted after his death had not accepted the amount of compensation rather the it is the admitted case of the appellants-writ petitioners that the amount of compensation was received by Jaura Oraon. 43. The question arises that when Jaura Oraon was not party before the Special Officer, Scheduled Area Regulation then under what capacity, the said amount has been disbursed in his favour which also cast doubt upon the conduct of the Special Officer, Scheduled Area Regulation and instead of calling upon the contesting respondents, the order has been passed for making payment of compensation in favour of one Jaura Oraon after verifying the fact that the Jaura Oraon was also one of the legal heir of the recorded tenants. 44. According to our considered view, even thought Jaura Oraon was the legal heir of the recorded tenant but since he was not party to the proceeding, hence, it was incumbent upon the Special Officer, Scheduled Area Regulation to pass order of making payment of compensation in favour of the contesting respondent. 45. 44. According to our considered view, even thought Jaura Oraon was the legal heir of the recorded tenant but since he was not party to the proceeding, hence, it was incumbent upon the Special Officer, Scheduled Area Regulation to pass order of making payment of compensation in favour of the contesting respondent. 45. We are further of the view that merely because the amount of compensation has been directed to be paid by coming to the conclusion that the construction is there prior to coming into effect of the Scheduled Area Regulation Act, 1969 but making payment of compensation without any cogent evidence what led the Special Officer, Scheduled Area Regulation to come to the conclusion of applicability of the Scheduled Area Regulation Act, 1969 of having substantial structure prior to coming into effect of the Scheduled Area Regulation Act, 1969. 46. The acceptance of money even by one of the legal heirs of the recorded raiyat will not come in the way of restoration of land, reason being that when the very basis of the order itself has been found to be illegal, i.e., there is no cogent evidence of substantial structure said to be there prior to coming into effect of the Scheduled Area Regulation Act, 1969 then the very exceptional provision as contained under second proviso to Section 71-A will not be applicable and once the said provision will not be applicable then the question of making payment of compensation cannot arise. If the contention of the learned senior counsel will be accepted then the same will be in the teeth of the object and intent of the CNT Act which has been enacted by way of beneficial piece of legislation to provide security and protection to the members of the tribal people living in the scheduled area. 47. Further, the purpose of enactment is that the statute considers the raiyat living in the scheduled area to have no knowledge (novice) and that is the reason the Deputy Commissioner has been made custodian to this case on behalf of the raiyats so as the raiyats living in the scheduled area may not be fooled and their landed property which is being used for the agricultural purpose which is the main source of livelihood of the raiyats will not ultimately be frustrated. 48. 48. The ground has been taken that the appellate authority has not provided any opportunity of hearing as also the appellant died during the pendency of the appeal. 49. Learned senior counsel in order to substantiate this argument has drawn the attention of this Court towards the order sheet of the appellate authority. 50. We in order to come to the conclusion as to whether any prejudice has been caused to the party concerned, the appellants herein, has minutely considered the order sheet which is part of the paperbook wherefrom it is evident that the appellant had appeared after receipt of notice all along. It appears from the order dated 13.05.2010 that last opportunity was given to advance argument with the observation made therein that if the argument will not be concluded on 28.05.2010, the next date, then the order will be passed. The matter was posted on 28.05.2010 but both the parties were absent. It has been referred in the said order that “Heard the Appellant-Respondent absent on call. Appellant to file W/A by 10th June. Put up for order.” 51. The learned senior counsel has tried to impress upon the Court that when both the parties were absent on that date, where is the question of hearing the appellant/respondent. 52. We have considered the order dated 28.05.2010 along with the order dated 13.05.2010 wherein last opportunity was given to advance argument on 28.05.2010 but both the parties had not represented in the proceeding and as such, it has been observed that both the parties are absent, however, one line has been referred there “Heard the Appellant-Respondent” But, thereafter, the appellate authority has passed the order “absent on call.” 53. This Court even accepting that the word has been written as “Heard the Appellant-Respondent” but subsequent thereto, it has been stated that both “absent on call.” and that is the reason the appellant was given opportunity to file written argument. The order was passed on 24.06.2010 wherefrom it is evident that the appellant Mango Oraon was present but even in spite of call, the opposite party had not appeared. It has further been observed that by making reference of the order dated 28.05.2010 opportunity was also granted to file written argument by 10.06.2010 but no written argument was filed. Thereafter, the appellate authority has proceeded and decided the matter. 54. It has further been observed that by making reference of the order dated 28.05.2010 opportunity was also granted to file written argument by 10.06.2010 but no written argument was filed. Thereafter, the appellate authority has proceeded and decided the matter. 54. The question herein is that if the writ petitioner/appellant herein himself has chosen not to appear and even in spite of the order passed on 13.05.2010 by giving last opportunity to advance his argument on 28.05.2010 but on 28.05.2010, they had chosen not to appear. Even on 24.06.2010, the appellants-writ petitioners had not appeared and if in such situation, the appellate authority has passed order, can it be said to be improper. 55. According to our considered view, it cannot be said to be improper since if the writ petitioner/appellant herein himself has chosen not to appear when he was knowing fully well that next date has been fixed on 28.05.2010 with a specific stipulation made in the order dated 13.05.2010 that if the argument will not be done on 28.05.2010 then appropriate order would be passed and in terms thereof, the case was posted for order in presence of the appellant. 56. The law is well settled that the party concerned if chosen not to appear after appearance in the proceeding, cannot be allowed to take the ground that he has been deprived from the opportunity to defend. Reference in this regard be made to the judgment rendered in the case of Bank of India vs. Apurba Kumar Saha, (1994) 2 SCC 615 wherein it has been held that an employee who had refused to avail the opportunities provided to him in a disciplinary proceeding to defend himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him after the disciplinary proceeding conducted against him by the Bank-employer had resulted in punishment. Paragraph-4 of the aforesaid judgment is being reproduced as under: 4. Having regard to the arguments addressed by learned counsel on both sides we have gone through the papers and seen that the High Court's view that there was violation of principles of natural justice, in conducting the disciplinary proceedings against the respondent, was wholly unjustified. Paragraph-4 of the aforesaid judgment is being reproduced as under: 4. Having regard to the arguments addressed by learned counsel on both sides we have gone through the papers and seen that the High Court's view that there was violation of principles of natural justice, in conducting the disciplinary proceedings against the respondent, was wholly unjustified. The records of the disciplinary proceedings show that the respondent had avoided filing of the written explanation for the charges of misconduct levelled against him and also had for no valid reason refused to participate in the disciplinary proceedings. A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the Bank-employer had resulted in violation of principles of natural justice of fair hearing. In State Bank of India and Others vs. Narendra Kumar Pandey, (2013) 2 SCC 740 the Hon'ble Apex Court, by placing reliance upon the judgment rendered by Hon'ble Apex Court in Bank of India vs. Apurba Kumar Saha (1994) 2 SCC 615 has reiterated the same view. Relevant paragraph of the said judgment, i.e., paragraphs-22 and 24 are being reproduced as under: 22. We are of the view that the High Court also committed an error in holding that since no witness was examined in support of the charges, it was a case of no evidence. In an ex parte inquiry, in our view, if the charges are borne out from the documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the inquiring authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges. 24. In Bank of India v. Apurba Kumar Saha this Court held: (SCC pp. 616-17, para 4) “4. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges. 24. In Bank of India v. Apurba Kumar Saha this Court held: (SCC pp. 616-17, para 4) “4. … A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the bank employer had resulted in violation of principles of natural justice of fair hearing.” Further the ground has been taken that one of the appellants had died but there is no substitution. 57. We have considered the order dated 29.08.2007 passed by the appellate authority wherefrom it is evident that none represented on behalf of the appellant, the private respondents herein while the appearance was there on behalf of the opposite party no.1. Both the parties have been directed to give information to the appellate authority about the details of the family members whether they are alive or dead. Further order is there that substitution if any be also filed. But it appears from the subsequent orders that the opposite party, the appellant-writ petitioners has represented all along but there is no compliance of the order dated 29.08.2007, as such, it is not a case where the opportunity was not granted to the appellant-writ petitioners rather it was well within the knowledge of the representative of the appellant-writ petitioners but even though he was conscious, no application was filed. 58. Thus, it is evident that it is not a case where the opportunity was not provided of filing substitution application rather vide order dated 29.08.2007, the said opportunity was granted but not availed. 59. Further, whether the death of the appellant which is now being taken as a ground in assailing the impugned judgment, can be said to be a ground at this stage when the concerned appellate authority was not apprised of the death of the party concerned. 60. 59. Further, whether the death of the appellant which is now being taken as a ground in assailing the impugned judgment, can be said to be a ground at this stage when the concerned appellate authority was not apprised of the death of the party concerned. 60. The law is well settled that it is incumbent upon the party concerned to bring to the notice of the authority in case of death of a party so that necessary correction in the arrays of the party be made and for which the opportunity is required to be given by the adjudicating authority. Herein, it is not the case of the appellants-writ petitioners that no such opportunity was given even accepting the fact that there was death of one of the appellants. 61. Further the aforesaid fact has not been taken before the revisional authority or before the learned Single Judge. We are exercising the power of intra-court appeal under clause 10 of the letters patent and as such, we are supposed to go through the finding recorded by the revenue authorities/administrative authorities and the judgment passed by the learned Single Judge so as to come to the finding that any infirmity has been committed either by the revenue authorities/administrative authorities or the learned Single Judge. But the aforesaid point having not been raised before the revisional authority or before the learned Single Judge, we are of the view that it is no a stage where it is to be considered. 62. This finding is in addition to the finding which has been recorded hereinabove on this issue. 63. We after having discussed the factual aspect in entirety and coming to the order passed by the learned Single Judge, we have found from paragraph-23 thereof wherein thoughtful consideration has been given with respect to the fact about coming into possession of the property by the appellate/writ petitioners. Such finding has been given based upon the fact that no deed said to be registered sale deed or document has been produced by the writ petitioners before any of the authority to substantiate their purchase of the property in the year 1945 or any date subsequent thereto. Rather, the petitioners never claimed the property from the private respondents herein who are descendants of one of the recorded tenants of the property. 64. Rather, the petitioners never claimed the property from the private respondents herein who are descendants of one of the recorded tenants of the property. 64. The ground has been taken by the private respondents was that they were dispossessed from the property just 10 to 12 years back, hence, the learned Single Judge has come to the conclusion that onus was on the petitioners to establish as to since when they were in possession of the property which the petitioners had failed to discharge. 65. Such finding, according to our considered view, is perfectly appropriate in view of the fact the CNT Act is a beneficial piece of legislation, hence, there is principle of applicability of reverse onus upon the petitioners who is taking the ground to frustrate the statutory provision of dispossession prior to 10-12 years in order to make out a case of long possession of the land in question. 66. The learned Single Judge has also given finding by discarding the claim of having construction over the land in question said to be existed prior to 1969 which was based upon the report of the Circle Officer, which in turn, was based on eye estimate. The same was discarded by discarding the order about the payment of compensation which we have already deliberated hereinabove in detail. 67. The learned Single Judge has also taken into consideration that it is based upon the appellants-writ petitioners to prove possession over the property over the land in question said to be existed prior to 1969 but no evidence has been produced to that effect. Further the learned Single Judge has also disclaimed the ground based upon the compromise decree since the private respondent were not party to the said decree. 68. The learned Single Judge based upon the said ground has refused to interfere with the order passed by the appellate and the revisional authority. 69. We, after going through the judgment passed by the learned Single Judge coupled with the factual as well as the legal position as discussed above in detail, is of the view that the judgment passed by the learned Single Judge suffers from no infirmity. 70. Accordingly, the instant appeal fails and stands dismissed. 71. Pending interlocutory application(s), if any, also stands disposed of.