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1982 Supreme(Pat) 181

PATNA HIGH COURT
Shivanugrah Narain, Satyeshwar Roy and Uday Sinha JJ.
Amarendra Nath Dutta
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 120 of 1979 ;
Decided On : DECEMBER 23, 1982

Headnote:Constitution of India Art. 244 (1) & Sch. 5 para 5 (2)-Bihar Scheduled Area Regulation 1969 is a valid piece of legislation emananing from the lagislative authority in the plenitude of power (Relied on AIR 1970 S.C. 951)-Provision relates to Administration & Control of schedule Areas considering all the provisions of the statute-It does not suffer from the vires of being a delegated piece of legislation. (Para 14, 15, 17, 18, 19 & 58)

       Chotanagpur Tenancy Act 1908, 71A Bihar Scheduled Areas Regulation 1969, adding 71A to the Chotanagpur Tenancy Act is not retrospective in operation but confirming power on the Deputy Commissioner to evict persons to whom transfers had been made prior to coming into force of Sec. 71A is valid since a part of the requisite for its action is drawn from a moment of time prior to its passing (Relied on AIR 1965 S.C. 1491): AIR 1982 A.P.1 (F.B.), distinguished)-Dy Commissioner has power under sec 71(A) to examine the transfer made in contravention of see 46 or any other provision of the Act of by any fraudulent method-Adverse possession shall mean adverse possession for 30 years from the date of the transfer. (Para 11, 12, 65, 73, 74 & 76)

       Constitution of India Art. 13(2) & 14-Bihar Scheduled Area Regulation Act 1969-"Expression Law" in Art 13(2) dose not include a law amending Such 5-Validity of the amendment Act can not be tested with reference to this Article-Amendment Act is not ultravires of the Art 14. (Para 30 & 32)

       Constitution of India Art 368-Schedules Areas Act 1977 is not ultravires the powers of the President-Inclusion of new Areas is not unreasonable-Constitution of India Amendment Act 1976 amending 5th Schedule to the Constitution is not ultra vires. (Para 38, 54, 58 & 59)

       

Judgment

SHIVANUGRAH NARAIN, J.

1. In this application under Articles 226 and 227 of the Constitution of India, the petitioners pray for quashing the notices, copies whereof are Annexures-1 to the writ petition and Annexures-1/1 to 1/14 to the first amendment petition to the writ application, by which excepting Annexures-1/1 and 1/3 which are directed to different persons - the Block Development Officer. Patamda, respondent No. 2 has called upon the petitioners to show cause as to why the lands specified in the notices, which were alleged to have been taken possession of by the petitioners illegally, be not restored to various applicants, who had filed applications for restoration of their lands before the Block Development Officer. It is not necessary to state the particulars of the lands or the names of the applicants before respondent No. 2. It is enough to state that all the lands are situate within the jurisdiction of the Patamda Block which lies in Dhalbhum Sub-Division in the district of Singhbhum. Petitioners also pray for a direction to the respondents namely, the State of Bihar, the Block Development officer, Patamda Block, the Sub-Divisional Officer, Dhalbhum, the Deputy Commissioner, Singhbhum, and the Union of India, who are respondents 1 to 5 respectively ordering them to forbear from taking steps in pursuance of the impugned notices or otherwise interfering with the petitioners right, title, interest in and possession over the lands in respect of which the notices have been issued. It is not disputed that the Block Development Officer, Patamda, is a Deputy Commissioner within the meaning of the expression as used in Sections 46 and 71-A of the Chhotanagpur Tenancy Act, 1908 (hereinafter called "the Act"). The statutory provision, in exercise of the powers conferred by which the notices have been issued, is not stated in the notices. According to the petitioners, the notices have been issued in exercise of the powers conferred by Section 71-A of the Act. According to the counter-affidavit filed on behalf of the State of Bihar and respondents 2 to 4, which have been relied upon by the other appearing respondents, the notices have been issued both under Sections 46 and 71-A of the Act. The learned Advocate General who appeared on behalf of respondents 1 to 4 and the learned Advocates who appeared for the Union of India or the private respondents, however, expressed their willingness to argue on the footing that the notices had been issued under Section 71-A of the Act. Therefore, for the proposes of this case, we will proceed on the assumption that the impugned notices have been issued in exercise of the powers conferred by Section 71-A of the Act.

2. In exercise of the powers conferred upon him by paragraph 6 of the Fifth Schedule to the Constitution of India, made, on 26th January, 1950. "The Scheduled Areas (Part A States) Order, 1950" (hereinafter called "the 1950 Order") specifying certain areas in various Part A States as Scheduled Areas. Among the areas in the State of Bihar declared as Scheduled Areas by the 1950 Order was the district of Singhbhum, excluding Dhalbhum Sub-Division. Acting in exercise of the powers conferred by Paragraph 5 of the Fifth Schedule to the Constitution, the Governor of Bihar, made the Scheduled Areas Regulation Act, 1969 (hereinafter called "the Regulation"). The Regulation amended in their application to the Scheduled Areas various Acts, including the Indian Limitation Act, 1963 and the Chhotanagpur Tenancy Act, 1908. The Regulation amended Article 65 of the Indian Limitation Act by substituting 30 years, as the prescribed period of limitation in place of 12 years. It also made certain amendments to the Act regarding which it is only necessary to state that it added a new Section 71-A to the Act. Section 71-A empowered the Deputy Commissioner to restore possession to raiyats belonging to the Scheduled Tribes over lands, if the Deputy Commissioner was satisfied that the transfer o
























































































































































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