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1995 Supreme(Pat) 478
PATNA HIGH COURT
S.K.Homchaudhuri and Gurusharan Sharma JJ.
Daniel Oraon
Versus
Shamim Ahmad
Letter Patent Appeal No. 56 of 1990 ;
Decided On : AUGUST 31, 1995
The term "transfer" in Sec. 71A of the Chotanagpur Tenancy Act should be given a liberal interpretation to include situations where possession has passed from one person to another, including through execution of a decree. The provision is intended to extend special protection to members of the Scheduled Tribes, and a narrow interpretation would limit the scope of that protection.
Headnote:
CHOTANAGPUR TENANCY ACT - SEC. 71A - TRANSFER OF LAND - RESTORATION OF POSSESSION - JURISDICTION OF DEPUTY COMMISSIONER - INTERPRETATION OF DECREE - SCOPE OF PROTECTION TO SCHEDULED TRIBES.
Fact of the Case:
Appellant, a member of the Scheduled Tribes, applied for restoration of possession of land under Sec. 71A of the Chotanagpur Tenancy Act, alleging fraudulent execution of decrees in rent suits and subsequent sale of the land. The Sub-Divisional Officer, appellate authority, and Commissioner found fraud and ordered restoration of the land to the appellant. The High Court, on a writ petition, set aside the orders, holding that transfer by operation of law through execution of a decree was not covered by Sec. 71A.
Finding of the Court:
The Supreme Court reversed the High Court's decision, holding that the term "transfer" in Sec. 71A should be given a liberal interpretation to include situations where possession has passed from one person to another, including through execution of a decree. The Court emphasized the protective intent of the provision and the need to extend special protection to members of the Scheduled Tribes.
Issues: 1. Whether the transfer of land through execution of a decree is covered by the term "transfer" in Sec. 71A of the Chotanagpur Tenancy Act? 2. Whether the Deputy Commissioner has jurisdiction to restore possession of land to a member of the Scheduled Tribes under Sec. 71A, even if the person did not seek remedies under other provisions of the Act?
Ratio Decidendi: 1. The term "transfer" in Sec. 71A of the Chotanagpur Tenancy Act should be given a liberal interpretation to include situations where possession has passed from one person to another, including through execution of a decree. The provision is intended to extend special protection to members of the Scheduled Tribes, and a narrow interpretation would limit the scope of that protection. 2. The Deputy Commissioner has jurisdiction to restore possession of land to a member of the Scheduled Tribes under Sec. 71A, even if the person did not seek remedies under other provisions of the Act. Sec. 71A provides an overriding power to the Deputy Commissioner to restore land to a member of the Scheduled Tribes who has been deprived of it in contravention of the Act or by fraudulent methods.
Final Decision: The appeal was allowed, and the High Court's judgment was set aside. The orders of the Sub-Divisional Officer, appellate authority, and Commissioner were restored.
S.K.Homchaudhuri, J.
1. This appeal is directed against the judgment and order dated 17th March, 1990, passed by the learned Single Judge in C.W.J.C. No. 962 of 1984 (R).
2. Undisputed facts in this case are that the land measuring 11.36 acres appertaining to Khata No. 34 of village Changatoli, P.S. Karra, District Ranchi, was recorded in the name of Nabi Munda, father of the appellant and others. The appellant, a member of Scheduled Tribes, made an application under Sec. 71A of the Chotanagpur Tenancy Act (hereinafter mentioned as the Act) for restoration of the possession of the said land. The claim of the appellant was resisted by Respondent No. 1, the petitioner in C.W.J.C. No. 962 of 1984 (R), contending, inter-alia, that the holding was sold in Execution Case No. 66R 9 of 1940-41 to Chaugatoli Co-operative Society on 10.3.1941 and the sale was confirmed on 29.8.1941. The Co-operative Society having surrendered the land, landlord settled the same with one Yukub Khan. As Yakub failed to pay the rent, the landlord instituted a suit for recovery of arrear and the holding was sold in Rent Execution Case No. 96 Rule 9 of 1950-51 and respondent No. 1 purchased the said land in the execution case, and the sale certificate was issued in his favour.
3. The application under Sec. 71A of the Act filed by the appellant on 30.9.1970 was registered as Case No. 182 of 1970-71. The Sub-Divisional Officer, Khunti, Ranchi, who are delegated with the power of the Deputy Commissioner under Sec. 71A of the Act, by the order dated 21.2.1975, rejected the application of the appellant. The appellant preferred an appeal against the order dated 21.2.1975 and the appellate authority, by the order dated 07.8.1979, allowed the appeal and remanded the case to the Sub-Divisional Officer for fresh enquiry and disposal of the application in accordance with law. On perusal of the materials on record, the Sub-Divisional Officer, amongst others, found:-
(i) Rent Suit No. 506 Rule 8 of 1938-39 against the father of the appellant, namely, Nabin Oraon was decreed for realisation of Rs. 61.00 on account of arrear of rent and that on 27.2.1941 the decree-holder land-lord received Rs. 50.00 from the judgment-debtor on account of arrear of rent and allowed time for 10 (ten) months to the judgment-debtor, Nabin Oraon, to clear the balance. However, keeping the raiyat Nabin Oraon in the dark, the decree was executed in Execution Case No. 66R 9 of 1940-41 and the entire raiyati land measuring 11 acres and odd was sold in auction for paltry sum of Rs. 20.00 to Chaugatoli Co-operative Society, and the sale was confirmed by the court by order dated 28.8.1941. There was nothing on the record to show that Chaugatoli Co-operative Society was delivered possession on the tenanted holding.
(ii) The holding was sold in auction in execution of the decree in flagrant violation of the provisions of Sec. 208 of the Act; inasmuch as (a) under the provision of Sec. 208 of the Act, only the portion of such holding should be sold the proceeds of the sale of which would be sufficient to satisfy the sale or satisfy the amount due under the decree. In the instant case, the value of the holding was assessed at Rs. 746.00 and 8 annas, yet for realisation of the decretal amount of Rs. 61.00 , the entire holding was sold in auction for paltry sum of Rs. 20.00 and (b) Sec. 208 of the Act also mandates that if the holding of an aboriginal "Raiyat" or of a Raiyat who is a member of a Scheduled caste, is sold, such land should be sold to the highest bidder who is an aboriginal or a member of a Scheduled caste, as the case may be and shall not be sold to any person other than an aboriginal or a member of a Scheduled caste unless no aboriginal or member of a Scheduled caste bids for such land an amount which is not less that the amount specified in the proclamation of sale. There was, however, nothing on the record which discloses that before selling the land in the auction to the Chaugato
