Rajesh Kumar Upadhyaya v. State of Jharkhand & Ors.

Learned counsel for the petitioner, Mr. Abhay Kr. Mishra has submitted, that petitioner - Rajesh Kumar Upadhyaya, son of late Jainath Upadhyaya resident of Meharma, P.O.- Marpa, P.S.- Balbadda, District- Godda has preferred this writ petition for quashing of the letter dated

16.08.2018 (Annexure-4) issued under the seal and signature of Territory Manager, Ranchi, L.P.G., Territory, whereby and whereunder the application of the petitioner submitted for award of the L.P.G. Distributorship has been rejected on the ground that the land offered by petitioner was not found suitable as per prevailing guidelines as lease agreement between petitioner and land owner was found notarized and not registered. Learned counsel for the petitioner has submitted, that petitioner has stated at paragraph-12 of the writ petition that the land was taken on lease by the petitioner from Rajesh Kumar Jha as he is the owner of the aforesaid land in question for a period 1st September, 2017 to 31st August, 2037 i.e. for 20 years lease, as such, the impugned order is bad in law. Learned counsel for the respondents/State, Mr. Gaurav Raj, A.C. to AAG-II has submitted, that such transaction is barred under Section 20 of the Santhal Parganas Tenancy Act, as such, such transaction cannot be accepted. Learned counsel for the respondent(s)/BPCL, Mr. Mrinal Kanti Roy has submitted, that petitioner has not known any deed with regard to the owner of the land and on the basis of the land, the ownership cannot be transferred in Santhal Pargana, which is provision of Section 20 -2- of the Santhal Parganas Tenancy Act, as such, the letter dated 16.08.2018 may be not interfered by this Court. Considering the rival submissions of the parties, this Court perused Section 20 of the Santhal Parganas Tenancy Act, which is referred hereunder:- “20. Transfer of raiyat's rights.- (1) No transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, shall be valid unless the right to transfer has been recorded in the record-of- rights, and then only to the extent to which such right is so recorded: (emphasis supplied) Provided that a lease of raiyati land in any sub-division for the purpose of the establishment or continuance of an excise shop thereon may be validly granted or renewed by a raiyat for a period not exceeding one year, with the previous written permission of the Deputy Commissioner: Provided further that where gifts by a recorded Santhal raiyat to a sister and daughter are permissible under the Santal Law, such a raiyat may with the previous written permission of the Deputy Commissioner, validly make such a gift: Provided also that an aboriginal raiyat may, with the previous written permission of the deputy Commissioner, make a grant in respect of him lands not exceeding one behalf of the area of his holding to his widowed mother or to his wife for her maintenance after his death. (2) Notwithstanding any thing to the contrary contained in the record-or-rights, no right of an aboriginal raiyat in his holding or any portion thereof which is transferable shall be transferred in any manner to anyone but a bona fide cultivation aboriginal raiyat of the parganan or taluk or tappa in which the holding is situated: Provided that nothing in this sub-section shall apply to a transfer made by an aboriginal raiyat of his right in his holding or portion thereof in favour of his gardi jamai or ghar jamai: [Provided further that a raiyat who is a member of aboriginal tribes or aboriginal castes may, with the previous sanction of the Deputy Commissioner and a raiyat, who is not a member of the aboriginal tribes or aboriginal castes may without such previous sanction, enter into a simple mortgage in respect of his holding or a portion thereof with any Scheduled Bank within the meaning of the Reserve Bank of India Act, 1934, or a society or bank registered or -3- deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935) or a financial instituting or with a Company or a Corporation owned by or in which not less than fifty one percent of share capital is held by the State Government, or the Central Government, or partly by the Central Government and which has been set up with a view to provide agricultural credit to cultivators.] (3) No transfer in contravention of sub-section (1) or (2) shall be registered, or shall be in any way recognished as valid by any Court, whether in exercise of civil, criminal or revenue jurisdiction. (4) No decree or order shall be passed by any Court or officer for the sale of the right of a raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order, unless the right of the raiyat to transfer has been recorded in the record-of-rights or provided in this Act and then only to the extent to which such right is so recorded or provided: [Provided that a holding or a portion thereof an occupancy raiyat may be sold in accordance with the procedure laid down in Bihar and Orissa Public Demands Recovery Act, 1914 (B and O. Act 4 of 1914) for the realisation of loans taken from any scheduled bank within the meaning of the Reserve Bank of India Act, 1934, or a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935) or financial institution, or a company or a corporation owned by or in which not less than fifty-one per cent of 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, but if the holding or portion thereof belongs to a raiyat who is member of aboriginal tribes or aboriginal castes, it shall not be sold to any person who is not a member of the aboriginal tribes or aboriginal castes. [(5) If at any time it comes to the notice of the Deputy Commissioner that a transfer of land belonging to a raiyat who is a member of the Scheduled Tribes as specified in Part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, has taken place in contravention of sub-section (1) or (2) or by any fraudulent method [including decrees obtained in suits by fraud or collusion', he may, after giving reasonable opportunity to the transferees, who is proposed to be evicted, to show cause and after making necessary enquiry in the matter evict the transferee from such land without payment of -4- compensation and restore it to the transferor or his heir, or in the case the transferor or heir is not available or is not willing to agree to such restoration, re-settle it with another raiyat belonging to the Scheduled Tribes according to the village custom for the disposal of an abandoned holding: Provided that if the transferee has within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner, shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same withing a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such a transfer where the transferee either, makes available to the transferor an alternative holding or portion thereof, as the case may be, of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor: Provided also that if after an enquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another raiyat, as the case may be to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be, and the amount of any compensation for improvements effected to land which the Deputy, Commissioner may deem fair and equitable.] [Explanation. - For the purpose of this section a financial institution means,- (i) a banking company as defined in the Banking regulation Act 1949; (ii) the State Bank of India constituted under the State Bank of India Act, 1955; (iii) a subsidiary Bank as defined in the State Bank of India) Subsidiary Bank) Act, 1959; -5- (iv) a corresponding new bank constituted under the banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; (v) Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963; (vi) the Agro- Industries Corporation; (vii) the Agricultural Finance Corporation Limited, a company incorporated under the Companies Act, 1956; and (viii) any other institution as may be notified in this behalf as a financial institution by the State Government in the Official Gazette.]” Accordingly, in view of Section 20 of the Santhal Parganas Tenancy Act, the instant writ petition is hereby dismissed. Jay/ (Kailash Prasad Deo, J.)