The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4000 of 2013 ---- 1. Anjani Kumar Srivastava. 2. Vijay Kumar Singh. 3. Santosh Lal. 4. Paresh Nath Singh. Versus .…..Petitioners 1. The State of Jharkhand. 2. The Commissioner, South C.N. Division, Ranchi, P.S. Kotwali, District- Ranchi. 3. The Deputy Commissioner, Ranchi. 4. The Special Officer, Schedule Area Regulations, Ranchi, P.S. Kotwali, District-Ranchi. 5. Soma Oraon. ---- ..Respondents
Legal Reasoning
14. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam the power under Section 71-A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special Officer exercised his powers under Section 71-A 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. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5-1-1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15-1-1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies. 15. In the result, therefore, we are of the view that the Special Officer ought not to have exercised his powers under Section 71-A of the Act after such an unreasonable long period of time, in the facts and circumstances of the case brought to light”. The other judgement referred to by the learned counsel for the petitioners 9. i.e. Jai Mangal Oraon Vs. Mira Nayak (Smt.) and Others seems already to have been taken into consideration in the case of Situ Sahu and others (Supra). 10. Since the petitioners have led primacy to the delay of 46 years in filing the application for restoration under section 71 A of the CNT Act and which was a pivotal issue to be considered by the concerned respondents though the same has been given a go bye as would appear from a perusal of the impugned orders, the impugned order dated 16.5.2013 passed by the respondent No. 2 in SAR Revision No. 5/2010 is hereby quashed and set aside. So far as the order dated -5- 17.12.2009 passed by the respondent no. 3 is concerned, which relates to a remand before the respondent no. 4 to conduct an enquiry as to whether the structures were constructed prior to 1969 or not, the same is modified with a further direction to respondent no. 4 to consider the period of limitation as raised by the petitioners in accordance with law. The exercise to be done by the respondent no. 4 consequent to the order passed by the respondent no. 3 in Restoration Appeal Case No.87R-15 of 2008-
Arguments
Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioners For the Respondent-State For the Respondent No. 5 : Mr. Amar Kumar Sinha, Advocate : Mr. Amaresh Kumar, Advocate : Mr. Rohit, A.C. to AAG-1 : Mr. Ashish Kumar Thakur, Advocate -------- -------- 09/1.5.2023 Heard the parties. 2. In this writ petition, the petitioners have prayed for quashing of the order dated 28.8.2008 passed by the Special Officer, Schedule Area Regulation, Ranchi ( Respondent No. 4) in SAR Case No. 607 of 2005-2006, by which the application for restoration preferred by the respondent no.5 under section 71A of the CNT Act has been allowed. The petitioners are further aggrieved by the order dated 17.12.2009 passed by the respondent no. 3 in Land Restoration Case No. 87R-15 of 2008-2009 by which the matter was remanded back to the respondent no. 4 without at all considering the point of limitation raised by the petitioners. The petitioners are also aggrieved by the order dated 16.5.2013 passed by the respondent no. 2 in SAR Revision No. 005 of 2010 by which the order of the respondent no. 3 has been affirmed. 3. It has been submitted by Mr. Amar Kumar Sinha, learned counsel appearing for the petitioners, that the restoration application was preferred after a delay of 46 years and even though the petitioners had raised the said issue before the concerned respondents but no finding has been recorded by them. It has been submitted that the order of the respondent no. 2 would clearly indicate that various documentary evidence in support of the contention of the petitioners were submitted by indicating the fact regarding maintainability of the application for restoration under Section 71A after a lapse of 46 years but the order passed -2- by the revisional authority appears to reveal that the respondent no. 2 was oblivious to the fact that the respondent no. 3 had not at all considered the point of limitation raised by the petitioners. Mr. Sinha in support of his contention with respect to the fate of a delayed application for restoration has referred to the case of Situ Sahu and Ors. Vs. State of Jharkhand & Ors. reported in 2004 (4) JLJR 109 (SC) and Jai Mangal Oraon Vs. Mira Nayak ( Smt.) and Others reported in (2000) 5 SCC 141. It has thus been submitted that all the impugned orders denying the claim of the petitioners deserve to be set aside in view of the apparent non consideration of the delay in institution of the restoration case under section 71A of the CNT Act. 4. Mr. Ashish Kumar Thakur, learned counsel appearing for the respondent no. 5, has stated that all aspects of the matter have been considered while ordering restoration of possession by the respondent no. 4 and its successive affirmation up to the revisional forum. Learned counsel submits that only with respect to an enquiry to be conducted regarding the construction which was made prior to 1969 or not was the sole basis for remand made by the respondent no. 3 to the respondent no. 4 and since the order of the respondent no. 3 as well as the respondent no. 2 seems to have considered all the relevant aspects including the question of limitation, no interference is necessitated in the impugned orders. 5. submitted by the learned counsel appearing for the respondent no. 5. 6. Mr. Rohit, learned A.C. to AAG-1, has basically reiterated what has been The factual aspects as would reveal from the averments made in the instant application is that the lands of R.S. Plot No. 1227 of Khata No. 72 under Khewat no. 2 situated at Vilage-Hatma, Nagra Toli, P.S. Ranchi (now Lalpur) District-Ranchi were previously held, owned and possessed by Sukur Oraon and others which was also entered in the R.S. Record of Right. Sukur Oraon and others got 64 decimals of land out of R.S. Plot No. 1227 of Khata No. 72 of the said village converted into Chhaparbandi with the permission of the then landlord by virtue of a Hukumnama dated 25.2.1953. It has been stated that rent was paid to the landlord before vesting and after vesting they were recognized as Chhaparbandi tenants by the State and rent was being paid to the State. It has further been stated that Sukur Oraon and Rogha Oraon, Sons of Munda Oraon, Ropna Oraon, Son of Birsa Oraon on account of legal necessity, sold 10 Kathas Chhaparbandi land out of R.S. Plot No. 1227 of Khata No. 72 of the said village to the father of the petitioner no. 1 by virtue of a registered deed of sale dated 17.9.1959 for a valuable consideration and the father of petitioner no. 1 was put in possession over the said property. Again by virtue of a registered deed of sale -3- dated 19.1.1960, two kathas of Chhaparbandi land was sold to the father of the petitioner no. 1 who was put in possession of the same. On purchase of the said property, the father of the petitioner no. 1 got his name mutated and Chhaparbandi rent was realized in his name. A residential building was constructed in the year 1965 over the aforementioned land and electricity and water connection was also taken where the family members including the petitioner no. 1 started residing. After the death of the father of petitioner no. 1 namely Rama Shankar Srivastava, the petitioner no. 1 and other legal heirs inherited the property and came in possession of the same where they are residing along with their family members. It has also been averred in the writ petition that so far as the petitioner no. 2 is concerned, his father had purchased 5 kathas of the said Chhaparbandi land vide registered deed of sale dated 12.9.1959 from Sukur Oraon and others for a valuable consideration and he was put in possession of the same pursuant to which his name was also mutated. Similarly, the father of the petitioner no. 3 had also purchased 5 kathas of Chhaparbandi land from Sukur Oraon and others vide registered deed of sale dated 12.9.1959 for a valuable consideration and he was put in possession of the same. Subsequent thereto, another one katha of land adjacent to the said plot was purchased by the father of petitioner no. 3 from the father of the petitioner no. 1. It also appears that the father of the petitioner no.4 had also purchased a plot of land from Sukur Oraon and others by virtue of a registered deed of sale dated 17.9.1959 and thereafter on 24.7.1959. An application was preferred by the respondent no. 5 under section 71A of the CNT Act before the Special Officer, Schedule Areas Regulation, Ranchi for restoration of the lands out of the said R.S. Plot No. 1227 of Khata No. 72 of the said village, which was registered as SAR Case No. 607 of 2005-2006. The Special Area Regulation Officer (Respondent no. 4) had passed an order of restoration on 28.8.2008 by restoring the lands in favour of respondent no. 5 and being aggrieved with the same, the petitioners preferred an appeal before the respondent no. 3 who had allowed the appeal and remanded the matter back to the respondent no. 4 to conduct an enquiry as to the residential house, which was constructed was prior to 1969 or not. Since the petitioners were aggrieved by the fact that the question of limitation was never considered by the respondent no. 3, a revision application was preferred before the respondent no. 2 which however was also rejected vide order dated 16.5.2013 and all the three applications are under challenge in this writ petition. 7. petitioners reveals that a primary question of limitation was raised as the As has been noted above, the submission of the learned counsel for the -4- application for restoration under section 71A of the CNT Act was preferred after 46 years, which was never considered either by the respondent no. 4 or by the respondent no. 3 and respondent no. 2. It seems from the order dated 16.5.2013 passed in S.A.R. Revision No. 005 of 2010 that the various documents submitted by the petitioners before the respondent no. 3 has been taken note of and erroneously the respondent no. 2 has come to a conclusion that the respondent no. 3 had passed a reasoned order with respect to not enquiring as to whether the structure over the land in question was built prior to 1969 or not. The order of the revisional authority also does not speak of any consideration having been made with the point of limitation raised by the petitioners. 8. At this juncture, it would be profitable to refer to the case of Situ Sahu and others Vs. State of Jharkhand and others (Supra) wherein it has been held as follows:-
Decision
09 shall also take into consideration the period of limitation as noted above and pass a reasoned and speaking order expeditiously. This writ petition stands disposed of. Rakesh/- (Rongon Mukhopadhyay,J)