Flora Hembrom, (Aged about 67 years) wife of Late Kisto Lakra, resident of Village v. 1. The State of Jharkhand 2. Manjula Oraon, wife of Bipin Khess, Resident of
Case Details
W.P.(C) No.1779 of 2018 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.1779 of 2018 ------ Flora Hembrom, (Aged about 67 years) wife of Late Kisto Lakra, resident of Village- Tigga, Chandatoli, P.O. and P.S. Karra, District- Khunti … Petitioner Versus 1. The State of Jharkhand 2. Manjula Oraon, wife of Bipin Khess, Resident of Village Tigga, P.O. and P.S. Karra, District- Khunti. 3. Commissioner, South-Chotanagpur Division, Ranchi, P.O. G.P.O., P.S.- Kotwali, Dist. Ranchi. 4. Deputy Commissioner, Khunti, P.O. + P.S. + Dist. Khunti 5. LRDC, Khunti, P.O. + P.S. + Dist. Khunti … Respondents ------
Legal Reasoning
towards the order passed by the co-ordinate Bench of this Court in the case of 2 W.P.(C) No.1779 of 2018 Dasrath Oraon vs. State of Jharkhand & Others passed in W.P. (C) No.4183 of 2005 dated 13.09.2005 and submits that therein a co-ordinate Bench has taken into consideration the provisions contained in Section 46 as well as Section 71 A of the Chota Nagpur Tenancy Act, 1908 and has come to the conclusion that if the transfer is made after obtaining the permission of the Deputy Commissioner under Section 46 (1) second Proviso (a) of the Chota Nagpur Tenancy Act, 1908, then the transferor can challenge the same under Section 46 (4-A) of the Chota Nagpur Tenancy Act, 1908 within a period of 12 years from the date of such transfer but application under Section 71 A of the Chota Nagpur Tenancy, 1908 after 12 years of such transfer is not maintainable and submits that all the three authorities being the L.R.D.C., Deputy Commissioner and the Commissioner having ignored this point of law, the respective orders passed by them are not sustainable in law. 6. Learned counsel for the petitioner next submits that this principle of law has been reiterated by another co-ordinate Bench of this Court in the case of Sadho Munda @ Sadhan Kumar Munda & Another vs. Commissioners, South Chhotanagpur Division, Ranchi & Others reported in [2006 (4) JCR 475 (Jhr)]. 7. Learned counsel for the respondent Nos.1 and 3 to 5 fairly submits that there is no dispute regarding the principle of law that if the transferor fails to challenge a transfer made in contravention of Clause A of second proviso to sub-section 1 of Section 46 of the Chota Nagpur Tenancy Act, 1908 then the same is to be filed within a period of 12 years from the date of transfer and not after that and hence, after that even the application under Section 71 A of the Chota Nagpur Tenancy Act, 1908 is not maintainable. 3 W.P.(C) No.1779 of 2018 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer to 46 (1) and 46 (4-A) of the Chota Nagpur Tenancy, 1908 which reads as under:- 46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof,- (a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a ’bhugut bundha’ mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the ’Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:] Provided further that,- (a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled Tribes and], who is a resident within the local limits of the area of the police station within which the holding is situate; (b) an occupancy-Raiyat, who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the holding is situate [* * *]; (c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the ’Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.] (4-A) (a) The Deputy Commissioner may, of his own 4 W.P.(C) No.1779 of 2018 motion or on an application filed before him by an occupancy- Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1): Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy- tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.” (Emphasis supplied) 9. The plain reading of the Section 46 (1) of the Chota Nagpur Tenancy Act, 1908 makes it abundantly clear that in view of second proviso an occupancy- Raiyat who is a member of the Scheduled Tribe, may transfer, with the previous sanction of the Deputy Commissioner, his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is member of the Scheduled Tribe and who is a resident within the local limits of the area of the police station within which the holding is situate. 10. The case of the petitioner is that the settlement was made to her husband namely Kisto Lakra. There is absolutely no material in the record either in the order of the L.R.D.C, Deputy Commissioner, Commissioner- South Chota Nagpur Division that Kisto Lakra was never a resident of the local limits of the area of the police station concerned. All the three authorities have faltered by only harping that the petitioner is not the resident of the local limits. The plain reading of Section 46 (4-A) of the Chota Nagpur Tenancy Act, 1908 makes it abundantly clear that the remedy for a transfer which is made in contravention of Clause A of the second proviso to Section 46 (1) of the Chota Nagpur Tenancy Act, 1908 is to file an application before the Deputy Commissioner for 5 W.P.(C) No.1779 of 2018 annulling such transfer but there is a limitation prescribed in first proviso of Section 46 (4-A) (a) of the Chota Nagpur Tenancy Act, 1908 of 12 years. 11. Now, coming to the facts of this case, though this original transfer was made on 17.04.1984 but the same was never challenged before the Deputy Commissioner within 12 years of such transfer but the application under Section 71 A was made much after the expiry of the period of 12 years i.e. in the year 2012-13. So, in the considered opinion of this Court; in view of the settled principle of law, as already referred to above, there is no scope for the respondent No.2 to invoke the power of the officer concerned under Section 71 A of the Chota Nagpur Tenancy Act, 1908 or claiming restoration of possession of the land on the ground that the same was unlawfully transferred more so when the transfer to the original transferee being the husband of the petitioner namely Kisto Lakra is not under challenge. 12. Under such circumstances, this Court is of the considered view that all the three officers being the L.R.D.C., Khunti, Deputy Commissioner, Khunti and Commissioner- South Chota Nagpur Division, Khunti have committed a gross illegality and perversity by ignoring this aspect in passing their respective orders, hence, the same are not sustainable in in law. 13. Accordingly, the order dated 13.03.2018 (copy of which has been kept at Annexure-3 of this writ petition) passed by the learned Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No.48 of 2013 whereby and where under the revision preferred by the petitioner against the order dated 09.05.2013 (Annexure-2 of this writ petition) passed in SAR Appeal No.30R- 15/2012-13 was dismissed by the Deputy Commissioner, Khunti, and also the order dated 10.11.2012 (copy of which has been kept at Annexure-1 of this writ petition) passed in SAR Case No.02/2012-13 passed by learned Land Reforms 6 W.P.(C) No.1779 of 2018 Deputy Collector, Khunti whereby the application under Section 71 A of the Chota Nagpur Tenancy Act, 1908 filed by the respondent No.2 was allowed ex parte, being not sustainable in law, are quashed and set aside. 14.
Arguments
For the Petitioner : Mr. Amit Kumar Sinha, Advocate For the Resp. Nos.1, 3 to 5 : Mr. Jayant Franklin Toppo, GA V For the Resp. No.2 Mr. A. R. Kisku, AC to GA V : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Though notice has validly been served upon the respondent No.2 and Vakalatnama has also been filed on behalf of the respondent No.2 yet no one turns up on behalf of the respondent No.2 in spite of repeated calls. 3. This Writ Petition has been filed under Article 226 of the Constitution of India with a prayer for issuance of appropriate Writ (s)/ Order (s)/ Direction (s), specially in the nature of certiorari for quashing the order dated 13.03.2018 (copy of which has been kept at Annexure-3 of this writ petition) passed by the learned Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No.48 of 2013 whereby and where under the revision preferred by the 1 W.P.(C) No.1779 of 2018 petitioner against the order dated 09.05.2013 (Annexure-2 of this writ petition) passed in SAR Appeal No.30R-15/2012-13 was dismissed by the Deputy Commissioner, Khunti and also for quashing the order dated 10.11.2012 (copy of which has been kept at Annexure-1 of this writ petition) passed in SAR Case No.02/2012-13 passed by learned Land Reforms Deputy Collector, Khunti; whereby the application under Section 71 A of the Chota Nagpur Tenancy Act, 1908 filed by the respondent No.2 was allowed ex parte. 4. The case of the petitioner is brief is that in the year 1984, a settlement was arrived at between Gendra Oraon and Kisto Lakra who is the husband of the petitioner in respect to plot No.86, Khata No.6, Thana No.163, area 4.21 acres, Police Station- Karra with the prior permission of the Deputy Commissioner as provided for under Section 46 of the Chota Nagpur Tenancy Act, 1908. In the year 2012-13, the respondent No.2 filed an application which was numbered as SAR No.02/2012-13 claiming that her ancestors had not settled the said land which is the subject matter of this writ petition, hereinafter called as case land because she was not aware of any such settlement. It was contended by the respondent No.2 that the alleged settlement was done by fraud because the petitioner was not resident of the same police station, hence, there was a violation of the Section 46 of the C.N.T. Act. Vide order dated 10.11.2012, the L.R.D.C. allowed the application for restoration of the land ex parte. S.A.R. Appeal No.30R/2012 was dismissed by the Deputy Commissioner, Khunti on the ground that the petitioner in whose favour the land was settled, was not the resident of the same police station, hence, there is violation of Section 46 of the C.N.T. Act, and for the same reason, the revision was also filed. 5. Learned counsel for the petitioner draws the attention of this Court
Decision
In the result, this Writ Application stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 07th of March, 2024 AFR/ Animesh 7