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PATNA HIGH COURT
B.P.Singh and S.B.Sinha JJ.
Manbodh Mahto
Versus
State Of Bihar
Letter Patent Appeal No. 11 of 1986 ;
Decided On : SEPTEMBER 07, 1989
CHOTANAGPUR TENANCY ACT - SECTION 46 - INTERPRETATION - TRANSFER OF AGRICULTURAL HOLDING BY ABORIGINAL OR MEMBER OF SCHEDULED CASTE - VALIDITY - CONDITIONS - NOTIFICATION UNDER SECTION 46(9) - SCOPE - CONSTITUTION (SCHEDULED TRIBES) ORDER, 1950 - EFFECT - LOHARAS - WHETHER MEMBERS OF SCHEDULED TRIBE IN 1943 - QUESTION OF FACT - REMAND.
Fact of the Case:
The appellant challenged the orders passed by various authorities under the Chotanagpur Tenancy Act (CNT Act) related to the restoration of land to respondent No. 6. The appellant claimed that the transfer of land in favor of respondent No. 6 was not maintainable as it involved a transfer of land by a raiyat who is a member of the Schedule Tribe. The appellant also contended that Loharas, to which respondent No. 6 belonged, were not members of the Schedule Tribe in 1943 when the alleged transfer took place.
Finding of the Court:
The court held that the Loharas were declared to be members of the Scheduled Tribe for the first time by reason of S.R.O. No. 510 dated 6th September 1950, in terms of the Constitution (Schedule Tribes) Order, 1950 made under Clause (1) of Article 342 of the Constitution of India. The court also held that the phraseologies used in Article 342 of the Constitution of India and Section 46(9) of the CNT Act are different. While Article 342 empowers the President to specify the Tribes or Tribal Communities to be deemed as Scheduled Tribes, Section 46(9) of the CNT Act includes a person declared by the Governor, by notification, to be an aboriginal for the purpose of the said Section.
Issues: 1. Whether the transfer of land in favor of respondent No. 6 was maintainable under Section 46 of the CNT Act? 2. Whether Loharas were members of the Scheduled Tribe in 1943?
Ratio Decidendi: The court held that the Loharas were not mentioned as members of aboriginals in the notification issued by the Governor of Bihar in 1938 under Section 46(9) of the CNT Act. However, the court also held that it is permissible for respondent No. 6 to show that the Communities of Loharas were aboriginals or members of a Scheduled Tribe. The court relied on the Ranchi District Gazetteer which stated that the Loharas consist partly of immigrants from Bihar known as Kanaujia Loharas and partly of indigenous blacksmiths known as Kol Loharas or Nagpuria Loharas or Loharas.
Final Decision: The court allowed the writ petition, set aside the impugned order, and quashed the orders passed by the Deputy Collector, Additional District Magistrate, and Commissioner. The matter was remitted to the Land Reforms Deputy Collector, Khunti, District Kanchi, the Collector under the Scheduled Area Regulations, 1969 to decide the case afresh after giving an opportunity to both the parties to adduce evidence on the aforementioned issues.
S.B.Sinha, J.
1. This Letters Patent Appeal is directed against a judgment dated 3rd March, 1986 passed by a learned single Bench of this Court in CWJC No. 399 of 1981 in terms whereof the writ application filed on behalf of the appellant for quashing the orders dated 19.11.1975 passed by the Deputy Collector, khunti, Ranchi, (respondent No. 2), the order No. 3 and the order dated 23.6.1978, passed by the Additional District Magistrate (respondent No. 3) and the order dated 13.3.1981 passed by the Commissioner, South Chhotanagpur Division, Ranchi (responded No. 4) copies whereof were marked as Annexures 2, 3 and 4 to the writ application respectively was dismessed.
2. The proceedings in which the aforementioned orders were passed arose by reason of filing of an application by respondent No. 6 purported to be in terms of Sec. 71A of the Chotanagpur Tenancy Act (hereinafter referred to as the Act), for restoration of the land situate in village Mankidih, P.S. Tamar in the district of Ranchi, in respect of revisional survey settlement plot No. 254 measuring an area of 0.09 acres, plot No. 255 measuring an area of 0.32 acres, plot No. 258 measuring an area of 0.52 acres, plot No. 265 measuring an area of 0.41 acres and plot No. 268 measuring an area of 1.10 i.e. covering a total area of 2.44 acres.
3. In the aforementioned case which was registered as case No. 13 of 1970-71, the petitioner having been noticed appeared and filed a show cause inter alia on the ground that the said application was not maintainable as no transfer of any land in his favour by a raiyat who is a member of Schedule Tribe is involved. It was further alleged that respondent No. 6 was by caste a Lohar and not Lohara. It was further alleged that the appellants 15.11.43, when Loharas were not the members of the Schedule Tribe. According to the appellants the Loharas were declared to be the members of Schedule Tribe in the Year 1950 in terms of the provisions of constitution (Schedule Tribes) Order, 1950
4. According to the appellants in terms of Second Proviso appended to Sec. 46 of the Act, 1908 as amended by C.N.T. Amendment Act, 1938 (Bihar Act 1938) the prohibition of transfer was In respect of agricultural holding by an aboriginal within the meaning of Sec. 46(9) of the said Act as it then stood including a person declared by the Governor, by notification, to be an aboriginal for the purpose of the said Section.
5. It appears that the question raised in the aforementioned writ application, namely, that the Loharas were declared to be the members of Schedule Tribe for the first time by reason of S.R.O. No. 510 dated 6th of September, 1950 in terms of Constitution (Schedule Tribes) Order, 1950 made under Clause (1) of Article 342 of the Constitution of India, was not raised before the Respondent Nos. 2, 3 and 4.
6. As noticed hereinbefore, the only contention which was raised on behalf of the appellant before the concerned respondent was that respondent No. 6 was Lohar by caste and not Lohara by caste.
7. Unfortunately, the learned single Judge also did not consider this aspect of the matter in Iris judgment. Sec. 46(9) of the Act as amended by C.N.T. Amendment Act, 1938 reads as follows:
In this section the expression aboriginal includes any person declared by the Governor, by notification, to be an aboriginal for the purposes of this section, and the expression Scheduled Caste means any caste declared by the Governor, by notification, to be a Scheduled Caste.
The Governor of Bihar in purported exercise of his power under the aforementioned provisions issued a notification on the 7th of October, 1938 whereby the persons and castes named therein were declared to be aboriginal for the purpose of G.N.T. Act. In the said notification Loharas were not mentioned as members of aboriginals. After coming into force of the Constitution of India, the President of India in exercise of his power conferred upon him under Clause (1) of Article 342 thereof made an
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