IMPORTANT POINT
The lapse of 40 years is not a reasonable time for exercise of power u/s 71A of the Chhota Nagpur Tenancy Act, even if it is not hedged in by a period of limitation.

Headnote:Chhota Nagpur Tenancy Act, 1908 -Section 71A-Application for restoration of land-Surrender of land by recorded tenants of land-Certain lands were originally recorded in names of K, B and J, ancestors of one G -J died immediately after the revisional survey - K and B surrendered the tenancy pertaining to the plot to the landlord, Maharaja of Chhotanagpur by a registered deed-Soon thereafter, the landlord settled the land on appellants on 25.2.1938-Appellants have been in possession of the land and cultivating it- G filed an application u/s 71A of the Act on 3.2.1978 for restoration of land on ground that appellants had fraudulently acquired the land-Special Officer allowed the application holding that the land belonged to ancestors of G , who were members of scheduled tribes and khatiyani holders of land and that surrender was illegal as all shareholders had not surrendered their rights-High Court dismissed writ application of appellants-Whether lapse of 40 years is a reasonable time for exercise of powers u/s 71A of the Act-(No).
       Held : The use of the words "at any time" in section 71A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act viz. to prevent inroads upon the rights of the ignorant, illiterate and backward citizens. Thus, where the Deputy Commissioner chooses to exercise his power under Section 71A it would be futile to contend that the period of limitation under Limitation Act has expired. The period of limitation under the Limitation Act is intended to bar suits brought in civil courts where the party himself chooses to exercise his right of seeking restoration of immovable property. But, where, for socio-economic reasons, the party may not even be aware of his own rights, the legislature has stepped in by making an officer of the State responsible for doing social justice by clothing him with sufficient power. However, even such power cannot be exercised after an unreasonably long time during which third party interests might have come into effect. Thus, the test is not whether the period of limitation prescribed in the Act of 1963 had expired, but whether the power under Section 71A was sought to be exercised after unreasonable delay. (Para 11)
       We will assume that the surrender of tenancy on 7.2.1938 and the settlement of the lands on the present appellant on 25.2.1938 were in quick succession and could be viewed as parts of the same transaction within the meaning of the term transfer as contemplated by the Act. Nonetheless, it has not been established before us that the transfer was contrary to any other provisions of the Act. (Para 13)
       Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. (Para 14)

JUDGMENT

Srikrishna, J.-These appeals, by special leave call into question the judgment of the Division Bench of the Patna High Court dismissing the writ application of the appellants.

2. In the area to which the Chota Nagpur Tenancy Act, 1908 (hereinafter referred to as the Act ) applied, certain lands were originally recorded in the names of Kochya Oraon, Bachua Oraon and Jagna Oraon, ancestors of one Goinda Oraon. They were the recorded tenants of land in Khata No. 13 of village Chhotanagpur. Jagna Oraon died immediately after the revisional survey. Kochya and Bachua surrendered the tenancy pertaining to plot Nos. 588, 1883, 1884 and 1885 in Khata No. 13 admeasuring 2.65 acres of the land to the landlord, the Maharaja of Chhotanagpur by a registered deed dated 7.2.1938. Soon thereafter, the landlord settled the land on the appellants on 25.2.1938. The appellants have been in possession of the land and cultivating it.

3. On 3.2.1978 the said Goinda Oraon filed an application under section 71A of the Act for restoration of the land in question on the ground that the appellants had fraudulently acquired the land by means of a sada hukumnama . This application was registered as S.A.R. Case No. 415/77-78. The Special Officer, Ranchi issued notices to the appellants and, after hearing the parties and recording evidence, came to the conclusion that the land belonged to the ancestors of Goinda, who were members of scheduled tribes and khatiyani holders of the land in question. Although, originally there were four co-sharers in the land, namely, Kochya Oraon, Bachua Oraon, Jagna Oraon and Goinda Oraon, the tenancies were surrendered only by Kochya and Bachua and not by the other two. The surrender was made on 7.3.1938 and the settlement in favour of the appellants was made on 25.3.1938. The Special Officer took the view that the surrender and the settlement of the land constituted one continuing act and was, therefore, contrary to the provisions of the Act. He also held that the surrender was illegal as all the shareholders had not surrendered their rights and decided that by reason of the provisions of Section 71A of the Act the tribals could not have been dispossessed from the aforesaid land. In this view of the matter, he allowed the application for restoration of possession to the applicant Goinda Oroan by an order made on 9.5.1980. The appellant appealed to the Additional Collector, Ranchi who affirmed the view of the Special Officer. A revision petition was also dismissed by the Commissioner upholding the views of the two authorities below.

4. The appellants challenged the order of the Revenue Authorities by a writ petition before the Patna High Court. The High Court dismissed the writ petition holding that section 71A of the Act is a beneficial legislation and the legislative intent is to extend protection to a class of citizens who were unable to protect their properties on account of backwardness, and, therefore, the Court had to give a broad and liberal construction to the legislative intent of protection. The High Court agreed with the authorities below that the surrender of the tenancy and the settlement of the land, coming in quick succession, was one continuous transaction which was hit by section 71A of the Act. The contention that the application for restoration was filed after the period of limitation, was rejected on the ground that the plea of limitation had not been raised at any stage of the proceeding. On this reasoning the High Court dismissed the writ application of the appellants. Hence, this appeal.

5. Before we take up the contentions in the appeal, a quick look at the applicable material legal provisions. The Chhota Nagpur Tenancy (Amendment) Act, 1908 is of 1908 vintage. By the amending Act of 1947 (Bihar Act 25 of 1947), which came into force with effect from 5.1.1948) section 46 was introduced in the statute. Section 46 of the Act puts restrictions on the transfer of the rights by raiyat who is a memb

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2004 Supreme(SC) 1041

IMPORTANT POINTThe lapse of 40 years is not a reasonable time for exercise of power u/s 71A of the Chhota Nagpur Tenancy Act, even if it is not hedged in by a period of limitation.

Cases Referred (4)

IMPORTANT POINT
The lapse of 40 years is not a reasonable time for exercise of power u/s 71A of the Chhota Nagpur Tenancy Act, even if it is not hedged in by a period of limitation.