The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No.5050 of 2023 ---- Samridhi Builders, A Partnership Firm having its office at A-3 New A.G. Co-operative Colony, Kadru, Argora, Ranchi through its Partner Mr. Anand Kumar …. …. Petitioner Versus 1. State of Jharkhand, through the Secretary, Department of Revenue, Registration and Land Reforms, Govt. of Jharkhand, Ranchi 2. Deputy Commissioner, Ranchi 3. Special Regulation Officer, Ranchi 4. Jhirga Oraon …. …. Respondents ---- CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR ---- For the Petitioner For the Resp.-State For the Resp. No.4 09/Dated:8th May, 2024 :Mr. Prashant Pallav, Adv. Mr. Amit Sinha, Adv. Ms. Shivani Jhaluka, Adv. :Mr. Sachin Kumar, AAG-II Ms. Surabhi, AC to AAG-II Mr. Sahbaj Akhtar, AC to AAG-IA :Mr. Manoj Tandon, Adv. Ms. Neha Bhardwaj, Adv. Mr. Adamya Kerketta, Adv. ---- 1. 2. Heard learned counsel for the parties. The present writ petition has been filed for the following reliefs:- “a. For issuance of an appropriate writ(s), order(s) or direction(s) for quashing of the order dated 23rd of August 2023 (Annexure- 6) passed by the Respondent No.2 in S.A.R. Appeal No. 58 R 15/2020-21 whereby and whereunder the suo moto appeal registered by the Respondent No. 2 against the order dated 30th of October 2013 passed in S.A.R. Case No. 419 of 2006-07, has been allowed and further direction for dispossession of the Petitioner under Section 71A of the Chotanagpur Tenancy Act and possession be restored in favour of Respondent No. 4 has been passed ignoring the fact that the case was barred by limitation and principle of res judicata. b. For the issuance of such other writ(s), order(s) or direction(s) to stay the order dated 23rd of August 2023 passed by the Respondent No. 2 in S.A.R. Appeal No. 58 R 15/2020-21 till the pendency of the instant Writ Petition.” 3. The description of land is as follows:- “Land situated at Village Argora, P.S. Argora, Thana No. 207, District Ranchi, Khata No. 44, Plot No. 440 admeasuring an area of 84 Decimals.” 4. The litigations upon the said lands are as follows:- i. SAR Case No. 373 of 1992-93 was earlier filed by Birsa Oraon, Hoda Oraon (father of Respondent No. 4) and Bigal Oraon under Section 71A of CNT Act for restoration of same land which was rejected vide order dated 8th of November 1996 (Annexure-SA/4 of Supplementary Affidavit). ii. SAR Case No. 419 of 2006-07 was again filed by Hoda @ Budhu Oraon (father of Respondent No. 4) under Section 71A of CNT Act for restoration of same land which was also rejected vide order dated 30th of October 2013 (Annexure-2 of Writ Petition). 5. The petitioner has claimed his right, title and possession on the basis of following facts: i. The impugned piece of land was recorded in the name of Gondla Oraon in the R.S. Record of Rights. The respondent No.4 is claiming himself to be the legal heir of recorded tenants. ii. Soon after publication of the record of rights, the recorded tenants surrendered the scheduled property to the then Maharaja Pratap Uday Nath Shahdeo vide registered Patta bearing No.6163 dated 28.09.1943. The said Landlord settled the property in favour of one Bhawnath Sahu by Sada Hukumnama dated 02.02.1944. After settlement, the scheduled property was mutated in the name of Chedi Ram Sahu & Ors. (Son of late Bhawnath Sahu) vide Mutation Case No.24 R 27/1956-57. iii. Thereafter, the legal heirs of the recorded tenants, namely, Birsa Oroan, Hoda Oraon and Bigal Oraon filed an application 2 W.P.(C) No.5050 of 2023 under Section 71A of the CNT Act, 1908 against the legal heirs of Bhawnath Sahu for restoration of possession of the Scheduled Property which was registered as SAR Case No.373/1992-93 and the same was dismissed vide order dated 08.11.1996. iv. The son of Late Bhawnath Sahu sold the scheduled property to Shish Chandra Patel, Sunita Sinha, Vinod Kumar Sinha, Surendra Kumar Singh, Ravi Ranjan Prasad, Sanjay Kumar and Satish Kumar Baroliya vide separate sale deeds dated 28.02.2007 and the Scheduled Property was also mutated in the name of the purchasers. v. Thereafter the petitioner executed a registered agreement dated 19.06.2019 for construction of Residential Building over the Scheduled Property. vi. The father of respondent No.4, namely Late Budho Oraon @ Hoda Oraon again filed an application under Section 71A of the CNT Act for restoration of the Scheduled Property which was registered as SAR Case No.419 of 2006-07 but the same was dismissed vide order dated 30.10.2013 on the ground that the application for restoration of possession is barred by limitation and also on the ground of res judicata. vii. After a lapse of almost seven years, the State suo moto registered an appeal against the order dated 30.10.2013 passed in S.A.R. Case No.419 of 2006-07 which was registered as S.A.R. Appeal No.58 R 15/2020-21. viii. Final order dated 30.10.2013 was passed in S.A.R. Case No.419 of 2006-07 and the revision case being S.A.R. Revision Case No.179 of 2011 was dismissed on 02.03.2015. ix. Thereafter an objection was filed by the then M.L.A. Bishunpur before the R.M.C. which was rejected on 08.02.2020. However suo moto appeal has been preferred in the year 2021 by which notices were issued. 3 W.P.(C) No.5050 of 2023 6. On the basis of above factual matrix, following issues have been raised. i. The land in question has been surrendered through registered surrender deed on 28.09.1943 and there is no finding that the surrender and settlement was same transaction and as such Section 71A of the CNT Act is not applicable. ii. It is the second proceeding and as such principle of Res Judicata will apply to SAR proceedings. For this purpose, learned counsel for the petitioner has relied upon para-12 of the judgment of Hon’ble Apex Court in the case of Kaushik Cooperative Building Society vrs. N. Parvathamma reported in (2017) 13 SCC 138. iii. It has been submitted that the suo moto appeal is not permissible. The relevant Sections i.e. Section 215(5) and 216 of the Chotanagpur Tenancy Act, 1908 are quoted hereinbelow:- Section 215-Appeal from orders of Deputy Commissioner:- (5) All other orders under the provisions of this Act shall be appealable to the Commissioner, if passed by a Deputy Commissioner, and to the Deputy Commissioner or to any officer specially empowered by the [State] Government by notification, to hear such appeals, if passed by an officer exercising powers of a Deputy Commissioner.” Section 216. Limitation of appeals under Section 215. - (1) Every appeal under Section 215 shall be presented to the Commissioner, the Deputy Commissioner or any officer specially empowered by the [State] Government under sub-section (5) of Section 215 as the case may be, within [ninety days] from the date of the order or the decree appealed
Legal Reasoning
against. (2) Appeals to the Judicial Commissioner or to the High Court shall be presented within the time provided for the presentation of appeals to a District Judge or the High Court, as the case may be, under the Code of Civil Procedure, 1908 (V of 1908) by the law for the time being in force for the limitation of appeals. 7. On the basis of above provisions, submission has been advanced that the appellate authority has no authority to initiate the proceeding suo moto. Further there is concept of limitation that has also been not followed and on that basis the appellate order is wholly without jurisdiction. 4 W.P.(C) No.5050 of 2023 8.
Legal Reasoning
It has been further submitted by learned counsel for the petitioner that before the appellate authority some of the litigating parties were dead i.e Late Chedi Sahu and Late Dehru Sahu and as such the entire proceeding is bad in law. 9. Learned counsel for the State has opposed the prayer and submissions has been advanced that; i. the State being guardian role has been assigned and accordingly the matter has been taken up after due enquiry and justice has been done. The import of the Scheduled Area Regulation Act is clear and loud that the State is supposed to protect the interest of the Scheduled Tribe. ii. The specific finding has been recorded that the transaction is contrary to Section 46 of the CNT Act and as such Section 71A of the CNT Act is applicable and right order has been passed. iii. Since it is a suo moto appeal so limitation will not apply. For this, he has further relied that there is no concept of limitation for original proceeding. 10. Learned counsel for the respondent No.4 has also opposed the prayer and his main contention is that original order has been passed by an authority which was never authorised to pass such an order, at the time of passing the order. For this purpose, he has relied upon the notification dated 21.12.2012. 11. It has been further submitted that there are disputed question of facts which cannot be decided under the writ jurisdiction. Further, there is statutory provision of revision which has not been invoked and the petitioners have directly approach the Writ Court. 12. Having heard learned counsel for the parties and from perusal of record, the admitted factual matrix emerges as follows:- i. The land in question has been surrender on 28.09.1943 through a registered surrender deed and that has not been denied by any authorities. ii. No finding has been recorded that the surrender and settlement is same transaction. 5 W.P.(C) No.5050 of 2023 iii. If surrender and settlement is not same transaction then the jurisdiction of Section 71A of the CNT Act is not available as because the land in question is no more a land belonging to the Scheduled Caste/ Scheduled Tribe. iv. It is a successive proceeding for the same cause of action and otherwise also it is bad in law and reference can be made to the judgment reported in (2017) 13 SCC 138 in the case of Kaushik Cooperative Building Society Vrs. N. Parvathamma & Ors. v. It further appears that there is a provision of appeal and that field has been occupied by the Sections 215 and 216 of the CNT Act which is quoted above. vi. The provision itself suggest that the appeal has to be filed under Section 215 of the CNT Act and the limitation has been provided under Section 216 of the CNT Act. Section 216 of the CNT Act provides 90 days for filing of appeal. vii. In the present case, there is no condonation of delay rather the delay part has not been considered by the authority at all. viii. Further, it appears that there is no concept of suo moto appeal. The argument of the learned counsel for the State that the suo moto appeal is available is not borne out from any section, rather the section prescribes a procedure that has to be followed. ix. It further appears that the suo moto appeal has been taken up at the instance of the sitting MLA and it has continued against the dead person and further it was beyond the period of limitation and as such the entire exercise by the appellate authority is without jurisdiction. x. So far as the issue of the order passed by the unauthorised original authority is concerned that also goes against the respondents. An order passed by an unauthorised person cannot be corrected by the appellate authority. 13. In view of above discussion, this Court finds that the impugned order dated 23.08.2023 (Annexure-6) passed by the Deputy Commissioner, Ranchi in S.A.R. Appeal No.58 R 15/2020-21 is not sustainable accordingly it is, hereby, quashed and set aside. 6 W.P.(C) No.5050 of 2023 14. Parties are at liberty to work out their remedy in accordance with law.
Decision
15. With above observation, the present writ petition stands disposed of. 16. Pending I.A., if any, also stands disposed of. (Rajesh Kumar, J.) Shahid/- uploaded 7 W.P.(C) No.5050 of 2023