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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE THE CHIEF JUSTICE DR. RAVI RANJAN, HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD, J.
Shanti Bhutkunwar Pahan, W/o. Late Rajesh Bhutkunwar Pahan and Anr. – Appellants
Versus
The State of Bihar (Now Jharkhand) and Ors. - Respondents
L.P.A. No. 37 of 2018
Decided On : 21-12-2021
Key Points: - The appeal challenges the dismissal of a writ petition concerning the restoration of possession of land transferred in contravention of the Chota Nagpur Tenancy Act (!) (!) . - The land in dispute was Bakashta Bhuinhari Pahanai land, transferred in 1934 (!) . - The original writ petitioner filed a petition under Section 71-A of the Act for restoration of land, which was later converted to a petition under Section 48 (!) (!) (!) . - The transfer was made via a registered deed after seeking permission from the Deputy Commissioner (!) . - The challenge to the transfer was made approximately 45 years after the transfer (!) (!) . - Section 49(5) of the Act provides a remedy for challenging consent given by the Deputy Commissioner for transfer of Bhuinhari Pahanai land within twelve years (!) (!) (!) . - Section 71-A is a general provision for restoration of land unlawfully transferred, while Section 49(5) is a special provision for challenging consent for transfer of occupancy holding or Bhuinhari tenure (!) (!) . - The court held that the challenge to the transfer was not maintainable under Section 71-A due to the time lapse and the applicability of Section 49(5) as a special provision (!) . - The appeal was dismissed, confirming the lower court's decision on the legitimacy of the land transfer and restoration processes (!) (!) . - The court rejected the submission that there is no provision for delivery of possession to a non-tribal, stating that possession must be restored if it was delivered under an illegal order (!) (!) .
| Table of Content |
|---|
| 1. facts about land ownership and transfer. (Para 2 , 3) |
| 2. court's review of legal proceedings history. (Para 4 , 8) |
| 3. arguments for and against land transfer legality. (Para 5 , 6) |
| 4. discussion on statutory provisions regarding land transfer. (Para 10 , 12) |
| 5. decision on applicability of legal provisions. (Para 14 , 16) |
| 6. final dismissal of appeal. (Para 17 , 18) |
JUDGMENT :
(Dr. Ravi Ranjan, C.J.)
1. Matter was heard through video conferencing and there had been no complaint whatsoever regarding audio and/or video quality.
2. This appeal is directed against the judgment dated 24.11.2017 passed by the learned Single Judge of this Court in C.W.J.C. No.3317 of 1998(R) by the writ petition has been dismissed holding that there is no illegality or impropriety in the order passed by the Deputy Commissioner and affirmed by the Commissioner ordering for delivery of possession of land in favour of respondent No.6.
3. Brief facts, which would be necessary for consideration of lis and which emanate out of the pleadings of the parties, stand narrated as under:-
A land of Plot No.309 appertaining to Khata No.238 of an area about 1.09 acres situated in Village Samlong, PS-Namkum, District Ranchi belonged to one Madhi Pahan, i.e., grandfather of the original writ petitioner (since deceased) namely Rajesh Bhutkunwar Pahan as Bakashta Bhuinhari Pahanai land. It is claimed by the original writ petitioner/appellants that the land was transferred by his grandfather Madhi Pahan in favour of the predecessors-in-interest of respondent No.6 in contravention of Sections 46 , 48 and 49 of the Chota Nagpur Tenancy Act, 1908 (hereinafter to be referred to as ‘the Act’) through a registered sale-deed dated 23.05.1934. The said transfer was challenged by the petitioner/appellants by filing a petition under Section 71-A of the Act for restoration of land in his favour which was numbered as S.A.R. Case No.14/1979-80. The Special Officer, S.A.R. Court (respondent No.5 to the writ petition) vide order dated 29.04.1980 ordered the land to be restored and possession to be delivered in favour of the writ petitioner/appellants.
The respondent No.6 preferred an appeal before the Additional Collector/District Magistrate, Ranchi (respondent No.4), who, after hearing the parties, remanded the case to respondent No.5 i.e., the Special Officer, for fresh consideration vide order dated 15.05.1980.
After the remand, the Special Regulation Officer vide order dated 20.06.1980 (Annexure 3 to the memo of appeal) reviewed his earlier order and finally rejected the prayer for restoration of land holding that the land concerned is a Bakashta Bhuinhari and the transfer was made vide registered deed in the year 1933-34 after seeking permission from the Deputy Commissioner, therefore, no proceeding can be drawn under Section 4 8(4) of the Act and hence rejected the prayer for restoration of land.
Surprisingly, no appeal was preferred by the writ petitioner/appellants assailing the aforesaid order passed by the respondent No.5.
Thereafter, respondent No.6 filed a petition before the Special Regulation Officer making a prayer for restoration of possession of the land as the petition filed under Section 4 8(4) of Act of the writ petitioner was already dismissed, which was earlier allowed and on that pretext delivery of possession was given to him. Since the order has now become non-existent, the possession should be delivered back to the respondent No.6. However, the said prayer was rejected vide order dated 05.10.1987 holding that the authorities under the Chota Nagpur Tenancy Act, 1908 do not have power to deliver possession in favour of a non-tribal.
Misc. Case Appeal No.47-R-28 of 1987-88 was preferred against the aforesaid order before the Deputy Commissioner, Ranchi who vide order dated 04.02.1988 set aside the aforesaid order passed by the Special Regulation Officer in Misc. Application No.47R-28/87-88 and remanded the matter for imparting justice by delivering b
The central legal point established in the judgment is the protection of tribal land rights under the Chotanagpur Tenancy Act, 1908 and the necessity of following due process before vesting land upon....
Land does not automatically vest in the landlord upon a Raiyat's intestate death; procedural safeguards must be followed for restoration under the Chotanagpur Tenancy Act.
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