Surrender of land by a raiyat is not considered a transfer under the Transfer of Property Act and is therefore not subject to restoration under Sec.71-A of the Chota-nagpur Tenancy Act.

S. Roy, J.

1. By this application filed under Artiles 226 and 227 of the constitution of India, the petitioner has prayed for quashing order dated 19th March, 1975 passed by Respondent No.4 (Annexure 2), order dated 30th october 1975 passed by Respondent No.5 (Annexure 3) and order dated 7th january, 1975 passed by Respondent No 6 (Annexure 4) by which the land in question has been ordered to be restored to Respondent Nos.1, 2 and 3.

2. Khata No.30 of village Baheya, P. S. Angara in the district of ranchi was recorded in the name of Charan Pahan who left behind three sons, koka Pahan, Ledua Munda and Bhandari Munda. The respondent claims to be the heirs of the recorded tenant Charan Pahan. On report submitted by the Circle Inspector Angara, a proceeding under Sec.7i-A of the Chota-nagpur Tenancy Act (the Act") was drawn up by Respondent No.4 for restoration of plot Nos.745, 532 and 902 of the said khata No.30 to respondent Nos.1, 2 and 3. Notice was served on the petitioner who filed his show cause in which he inter alia contended that there was no transfer of the said three plots in contravention of Sec.46 of the Act or in any other provision of the Act and no order could be passed under Sec.71-A of the Act. Respondent No.4 by Annexure 3 held that it was a case of transfer in contravention of the provision of the Act and therefore liable to be restored under Sec.71-A of the Act. In appeal the order was confirmed by respondent No.5 and the revision preferred by the petitioner was dismissed by respondent No.6.

3. Mr. V. S. Prasad learned counsel appearing on behalf of the petitioner contended that the case of the petitioner in its show cause as will appear from Annexure 2, is that the sons of the recorded tenant surrendered the said plot to the ex-landlord by registered document on 13th August, 1951. On 1st December, 1951 the ex-landlord settled these plots with the petitioners who on 8th December, 1952 executed and registered a kabuliyatjin respect of th4se plots in favour of the ex-landlord. The petitioner was paying rent and was in possession of the land. He submitted that it is admitted case that the heirs of the recorded raiyat surrendered the land to the ex-landlord. He submitted that surrender as envisaged under Sec.72 of the Act is not a transfer and therefore not covered by Sec.71-A of the Act Mr. Sahai Sinha submitted that the surrender was made without obtaining previous sanction of the Deputy Commissioner in writing and therefore surrender was in contravention of Sec.72 of the Act. He further submitted that the surrender as envisaged under the Act is a transfer, and therefore, the land could have been restored under Sec.71-A of the Act.

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 whole or part and return either the whole holdingor any part of it to the land lord. My considered opinion is that surrender being a right arising out of 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 parts of the same transaction therefore Sec.46 of the Act was attracted and a proceeding under Sec.71-A of the Act was maintain able. There is no dispute about the legal position that if it is proved that the surrender of a raiyati land of a member of the Sched