Lands covered by a town lease for dwelling purposes do not come within the purview of the Chhotanagpur Tenancy Act, 1908, and therefore, a proceeding under section 71(A) of the Act for restoration of such lands is not maintainable.

S. B. Sinha, J. - This petition is directed against an order dated 3-12-1986 passed by the Special Officer, Ranchi (respondent no. 1) as contained in Annexure-6 to the writ application whereby and whereunder the said respondent held that the petition for restoration filed on behalf of the respondent nos. 3 and 4 purported to be under section 71(A) of the Chhotanagpur Tenancy Act, 1908 was maintainable.

2. In view of the order proposed to be passed by me it is not necessary to state the facts of the case in details.

3. Suffice it to say that respondent nos. 3 and 4 filed an application for restoration of the land hearing plot no. 1085, Holding No. 862, situate on Purulia Road, of erstwhile Ranchi Municipality, Crow Ranchi Municipal Corporation. In the said proceeding before the respondent no.1, the petitioner raised a preliminary objection with regard to the maintainability of the said application, on various rounds namely:-

(a) Respondent Nos. 3 and 4 being Christians by religion they cannot be members of the Scheduled Tribes.

(b) The lands in question being not agricultural land and situated within the Municipal Area, the provision of the Chhotanagpur Tenancy Act have no application.

(c) The land in question being the subject matter of a town lease granted by the Deputy Commissioner in favour of the predecessor in the interest of the parties, for the purpose of raising dwelling house, the provisions of the said Act have no application.

4. From a perusal of the writ application, it appears that the respondent no. 1 merely took into consideration the first two objections raised on behalf of the petitioners and held that the said proceeding was maintainable in law.

5. Mr. K.K. Sahay, the learned counsel appearing on behalf of the petitioner drew my attention to the fact that it is undisputed that the lands in question being the subject matter of the town lease and having been demised for dwelling purposes, the provisions of Chhotanagpur Tenancy Act cannot have any application whatsoever. Mr. Sahay submitted that Chhotanagpur Tenancy Act applies only to Agricultural Holdings and not in respect of the lands which were sewed for non-agricultural purposes, and are situated within the Municipal limit of the Ranchi Town.

6. Mr. Sahay submitted that this fact has not been disputed in the counter affidavit filed on behalf of the respondent nos. 3 and 4 and as such this Court should issue a writ of prohibition as against the respondent no. 1 directing him not to proceed with the impugned proceedings. The learned counsel in this connection, has relied upon the cases of Hari Vishnu v. Abmad Ishaque reported in A.I.R. 1955 SC. 233 and Sewpujan Rai I. Ltd. v. Collector of Customs, reported in A.I.R. 1958 S.C. 845.

7. The learned counsel appearing on behalf of the respondent, on the other hand, submitted that the petitioners have no locus standi to maintain this writ application as they or their vendor, had no right title and interest in respect of the properties in suit and consequently they have also derived no right title and interest therein. The learned counsel further submitted that in the counter affidavit it has been stated that the petitioner and his family members are members of Scheduled tribes and they being raiyats, a petition under section 71(A) of the Chhotanagpur Tenancy Act would be maintainable.

8. Normally, this court in exercise of its writ jurisdiction is loathe to interfere with an order deciding a preliminary issue with regard to the maintainability of a proceeding under section 71(A) of the Chhotangpur Tenancy Act and to issue a writ of prohibition, prohibiting an authority to proceed with a proceeding initiated under a special jurisdiction.

9. However, in this case the situation is different in as much as the respondent nos. 3 and 4 in their counter affidavit have categorically admitted that the lands in question are covered by the town lease dated 2-12-1942 as contained in Annexure-2 to the writ application. In fact the