The transfer of land in 1944 was not violative of Section 46 of the Chotanagpur Tenancy Act, 1908, as the embargo on such transfers was introduced only by an amending Act in 1947.

Satyabrata Sinha, J.

1. This writ petition is directed against an order dated 17-4-1989 passed by Respondent No. 2 as contained in Annexure-2 to the writ petition as also the order dated 19-5-1990 passed in SAR App. I R. 15 of 1990-91 by respondent No. 3 as contained in Annexure-3 whereby and where-under the said authority allowed the application filed by respondents 4 to 7 purported to be under Sec. 71-A of the Chotanagpur Tenancy Act, 1908 and dismissed the appeal preferred by the respondent Nos. 4 to 7 respectively.

2. The fact of the matter lies in a very narrow compass.

3. Respondent Nos. 4 to 7 filed an application purported to be under Section 71-A of the Act sometime in the year 1988 before respondent No. 2. In the said application the said respondents had not given any details with regard to the alleged transfer which was sought to be cancelled. In fact, in respect of relevant column (sic) column 5, the said respondents stated that no transfer was made.

4. Before respondent No. 2, the petitioner produced a registered deed of sale dated 13-5-1944 as so the other documents for the purpose of proving that the father of respondents No. 4 to 7 transferred the disputed land in favour of the father of the petitioner and thereafter they had been in possession of the land in question.

5. Respondent No. 2 held that there had been a violation of Sec. 46 of the Act and, therefore, directed that the petitioner should restore the land in question to respondents No. 4 to 7 on receipt of sum of Rs. 5. The petitioner preferred an appeal against the said order and in the said appeal the petitioner contended that as the petitioner as also the concerned respondents were members of the Scheduled Tribes there was no violation of Sec. 46 of the Act, inasmuch as even the provision for obtaining permission thereof before the transfer could be effected in favour of another member of the Scheduled Tribes come into brought on the statute book in the year 1947. The respondent No. 3, however, dismissed the said appeal holding that the Scheduled Area Regulation came into force in the year 1969 with retrospective effect. Sec. 71-A of the Act reads as follows:

71-A. 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 who is a member of the Scheduled Tribes has taken place in contravention of Sec. 46 or any other provision of the 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 enquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heirs, or in case the transferor or his/her is not available or is not willing to agree to such restoration, re-settle it with another raiyat belonging to the scheduled Tribes according to the village custom for the disposal of 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 transfer 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 Area Regulation, 1969 he may notwithstanding any other provisions of the Act, validate such a transfer where the transferee e