Budheshwar Gorain son of Late Sheocharan Gorain, aged about 78 years resident of Village-Asanbani v. 1. The State of Jharkhand. 2. The Divisional Commissioner, Singhbhum
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4936 of 2019 Budheshwar Gorain son of Late Sheocharan Gorain, aged about 78 years resident of Village-Asanbani, P.O. & P.S.- Saraikela, District- Saraikela Kharsawan (Jharkhand)- 832401. … … Petitioner Versus 1. The State of Jharkhand. 2. The Divisional Commissioner, Singhbhum (Kolhan) Division, at Kolhan Commissioner Office, P.O. & P.S. Chaibasa & District- West Singhbhum-833201. 3. The Additional Deputy Commissioner, District Collectorate, P.O., P.S. & District –Saraikela-Kharsawan-833219. 4. The Sub-Divisional Officer, Chandil, P.O. & P.S.- Chandil, District- Saraikela-Kharsawan-832401. 5. Sri Surjo Mohan Singh Son of Kokil Singh, resident of Village- Asanbani, P.O.-Kanderbera, P.S.-Chandil, District-Seraikella- Kharsawan, (Jharkhand)-832401. … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Resp. No. 5
Legal Reasoning
--- : Mr. A.K Rashidi, Advocate : Mr. Birendra Burman, Advocate --- 06/16.07.2024 1. Heard the learned counsel for the petitioner and the respondent No.5. 2. 3. Nobody appears on behalf of the State. It appears that two Vakalatnamas have been filed on behalf of the respondent No. 5 through different counsels. 4. On instructions of Mr. Shivam Utkarsh Sahay, Advocate who has filed the subsequent Vakalatnama, it has been submitted that the Vakalatnama filed earlier by Mr. Birendra Burman will remain as he has already filed counter affidavit. Consequently, Mr. Birendra Burman advocate has argued the case on behalf of the respondent no.5. 5. This writ petition has been filed by the following reliefs:- “For issuance of an appropriate writ/s, Order/s, Directions/s and quashing of order dated 01.08.2019 passed in S.A.R. Revision No. 32 of 2016 (Annexure- 1 6) passed by the Divisional Commissioner Singhbhum, Kolhan Division, order dated 01.11.2016 passed in S.A.R. Appeal No. 07/2016 (Annexure-4) passed by the Additional Deputy Collector, Saraikela- Kharsawa and quashing order dated 10.08.2016 passed in S.A.P. Case No. 16/2012-13 (Annexure-2) by the Learned Sub Divisional Officer, Chandil and its direction made to the Circle Officer to evict the Petitioner within 15 days from the date of passing the order. And further your Lordships may please to hold and declare that since the Basgit Purcha has not been cancelled under provision of Section 8 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 and no fraudulent transfer has been made in contravention Section 46 of the CNT Act, 1908, AND Any other Writ/s be issued Order/s, be passed, Direction/s be made as your Lordships may deem fit and proper for doing conscionable justice to the petitioner in the facts and circumstances of the case; AND ad interim pending to writ application further proceeding in relation with S.A.R. Case No. 16 of 2012-13 be stayed.” 6. The learned counsel for the petitioner has submitted that the petitioner is in possession of the property involved in the present case since 1977 and the application for restoration of land was filed by the private respondent in the year 2012 and was numbered as S.A.R Case No. 16 of 2012-13 and as such the application for restoration having been filed after more than 30 years was not maintainable. He submits that this aspect of the matter has not been properly considered by the authorities and therefore the impugned orders called for interference. 7. The learned counsel has also submitted that the petitioner has constructed structure over the property and is living on the same. The learned counsel has also submitted that with respect to this property a Purcha under provisions of Bihar Privileged Person (Homestead Tenancy) Act was issued in case No. 12 of 1985-86. The learned 2 counsel has also submitted that the petitioner is also ready to pay adequate compensation to the private respondent in order to retain the property in dispute. 8. He has further submitted that the petitioner and the private respondent had also filed a compromise petition which was also rejected by the Commissioner while passing the impugned order in the revision case. 9. The learned counsel appearing on behalf of the respondent No.5 has submitted that a counter affidavit has been filed in the present case and does not dispute that a compromise petition was filed before the revisional court. 10. After hearing the learned counsel for the parties, this Court finds that it is not in dispute that private respondent No.5 is the decedent of the recorded tenant and belongs to the Scheduled Tribe community. He had filed a petition under section 71A of Chota Nagpur Tenancy Act for restoration of 23 decimals of land in plot No. 1974 appertaining to Khata No. 455 situated at Mouza Asanbani P.S Chandil under revenue Thana No. 325 situated in village Asanbani, Chandil which was instituted as S.A.R. Case No. 16 of 2012 seeking restoration of possession over the aforesaid land. The petitioner claims that he was in peaceful possession of area of 12 decimals out of 23 decimal and rest 11 decimal was in possession of others. 11. It was the case of the petitioner upon issuance of show cause that Khatiyni Raiyat namely Hemant Singh on account of legal necessity sold the land to the petitioner orally and the petitioner came in possession of the properties since 1977 and had constructed a home and godown and has been residing with his family peacefully without any objection. It was also his case that a Purcha was issued in his favour under the provisions of the aforesaid Act namely Bihar Privileged Persons (Homestead Tenancy) Act, 1947 vide B.P.H.T Case No. 12 of 1985-86 and on the aforesaid premises the petitioner claimed that he was in possession of the property for last more than 30 years. 3 12. It has also come on record that certain property was also acquired for construction of National Highway and an award to the tune of Rs. 18,54,427/- has been prepared but the same has not been paid to the legal representatives, the predecessor of the private respondent No.5. 13. This Court finds that the petitioner claimed possession over the properties since 1977 on the basis of oral transfer and claimed that he has constructed his house etc. on the property but the learned Sub- Divisional Magistrate while allowing the petition under Section 71A of the Chota Nagpur Tenancy Act has clearly recorded that the property is recorded in the name of Hemant Singh, S/O Mohan Singh and accordingly it is recorded in the name of Scheduled Tribe community. The petitioner could not produce any document in connection with transfer of land way back in 1977 and the settlement under B.P.H.T was also found to be against the provisions of Chota Nagpur Tenancy Act and was found doubtful with respect to the payment of rent in connection with the said property. 14. It has also been recorded that Register II in connection with the property records the name of the original Raiyat and rent has been paid up-till 2015-16 and accordingly the claim of the petitioner was rejected by the learned Sub-Divisional Magistrate and there was a direction to return the property to the applicant (Private respondent). 15. An appeal was filed by the petitioner and as per the appellate
Decision
order contained in Annexure-4 to the writ petition it was numbered as S.A.R. Appeal No. 7 of 2016-17. The appellate authority has also perused the records and dismissed the appeal and has observed as follows: - “मौजा आसनबनी, थाना सं0-325, खाता सं0-455, खेसरा सं0-1974, कि्ቦ- दोन तीन, रिबा 0.23 एिड़ भूकम हाल स्वे खकतयान में हेम्ቌ कसंह किता मोकहन कसंह, जाकत- भूकमज िे नाम िर दजज है जो अनुसूकित जनजाकत िे ्ቦेणी िे ्ቤ्वि हैं। ्वादीगण िे ्ቛारा बतलाया गया कि 12 किसकमल भूकम इनिे दखल में है कजसिा लगान भुगतान इसिे ्ቛारा किया जाता है ए्वं शेष 11 किसकमल भूकम अ् िे दखल में है। इसी भूकम िा िूणज लगान ्ቚकत्वादी आकद्वासी रै यत ्ቛारा भी कदया जाता है जो दोहरी जमाबंदी िो ्ቚदकशजत िरता है | 2. ्वादी ्ቛारा ्ቚ्ቜुत BPHT ्वाद सं0-12/85-86 संकद्ሾ है क्ोंकि उसिर ओ्वर राइक ंग किया हुआ है ए्वं लगान रसीद में भी ओ्वर 4 राइक ंग है। अगर BPHT ्वाद सं0-12/85-86 ्वा्ቜक्वि होता है तो आकद्वासी रै यत िी भूकम में भी ि ौती होती जबकि आकद्वासी रै यत िो िूणज लगान रसीद कनगजत हो रही है। यह ्ቚदकशजत िरता है कि आकद्वासी भूकम हड़िने हेतु आ्वेदि ्ቛारा छल- ्ቚिंि िा सहारा कलया गया। क्ोंकि आकद्वासी भूकम गैर आकद्वासी िे ि्ቌ में ह्ቜांतररत िरने िर िूणजतः िाबंदी है।“ 16. Thereafter, the petitioner filed a revision being S.A.R. Revision No. 32 of 2016 and the revision was also dismissed by citing reasons. It has been specifically mentioned that the oral sale was not proved and the revisional authority also rejected the compromise petition filed on 17.07.2019. 17. Considering the aforesaid facts and circumstances, this Court finds that the petitioner claims to be in possession of the property since 1977 on the basis of oral sale but the petitioner is not able to prove his claim of oral sale which was said to have happened as back as in the year 1977 and accordingly the contention of the petitioner that he was in possession over the property since 1977 could not be established by the petitioner before the authorities who have considered the materials on record and passed the impugned orders. 18. Further the appellate authority has also observed in connection with the B.P.H.T Purcha as quoted above that it was containing several cuttings. 19. Considering the totality of facts and circumstances of this case, this Court finds that all the three authorities have considered the materials on record and have found that the private respondent was entitled for restoration of land under section 71A of Chota Nagpur Tenancy Act. The claim of the petitioner that he was in possession since 1977 stood rejected and there is no material placed on record before this Court to show that the petitioner was in possession over the property since 1977. Thus, the argument of the petitioner that they were in possession since 1977 has no basis and the learned commissioner has also recorded in the impugned order that the petitioner has no base for the possession of the land in question. Further, the authorities having recorded that there was violation of section 71A of Chota Nagpur Act, 1908. This court is of the considered view that the learned commissioner has rightly refused to 5 act and pass order in terms of compromise between the petitioner and the respondent no.5. 20. In view of the aforesaid facts and circumstance, this Court finds no illegality or perversity in the impugned orders calling for any interference under article 226 of the Constitution of India. All the three authorities having held against the petitioner, no case for interference has been made out. 21. Accordingly, this writ petition is dismissed. 22. Pending I.A., if any, is closed. Rakesh (Anubha Rawat Choudhary, J.) 6