Angilina Tirkey vs Commissioner, South Chhotanagpur Division and Others

Ajit Kumar Sinha, J.—The present writ petition has been preferred for issuance of a writ in the nature of certiorari or any other appropriate writ / order / direction for quashing the ex-parte original order dated 28.11.1988 (Annexure-1) passed by Respondent No. 3 whereby and whereunder the Respondents, directed for restoration of the lands under proceeding in the purported exercise of power u/s 71A of the Chhotanagpur Tenancy Act without any application of mind and without giving any opportunity to the petitioner of filing her show-cause and contesting the proceeding merely on the ground of non-appearance by relying upon the collusive report of the Peon as also for quashing the appellate order dated 26.12.1991 (Annexure-4) and the revisional order dated 18.5.1999 (Annexure-5) confirming the said ex-parte order, although the petitioner has acquired the properties in question after grating of due permission by the Deputy Commissioner, and therefore, there was no violation of the provision of the Chhotanagpur Tenancy Act and further although the petitioner''s father was recorded as Sikmidar in the revisional survey khatiyan prepared almost 70 years ago and therefore, the claim of restoration was hopelessly barred by limitation.

The facts in brief are set out as under:

A proceeding u/s 71A of the Chhotanagpur Tenancy Act was initiated by Respondent Nos. 4 & 5 against the petitioner for restoration of lands situated at plot No. 3799 under Khata No. 210 of Mouza - Argora, measuring 86 decimals. The said proceeding was registered as S.A.R. Case No. 461/86-87 in the court of Special Officer, Schedule Area Regulation, Ranchi. The petitioner refused to accept the notice and the proceedings were held ex-parte vide order dated 28.11.1988 and petition for restoration filed by respondent Nos. 4 & 5 were allowed. The petitioner challenged the same before the Additional Collector, Ranchi, vide Misc. Case No. 146R8 (II) 1988-89. The Appellate Authority vide its order dated 26.12.1991 dismissed the appeal holding that since the name of the father of the petitioner was recorded as non-raiyat his claim over the land becomes illegal beyond five years. Being aggrieved and dissatisfied with the aforesaid order dated 26.12.1991 the petitioner preferred a revision before the Commissioner, South Chhotanagpur Division, Ranchi being S.A.R. Revision No. 47/92. The Revisional Authority dismissed the same vide order dated 18.5.1999 which is sought to be challenged in the present writ petition.

The main contention raised by the learned Counsel for the petitioner Mr. Indrajeet Sinha, is that the ex-parte order passed by the Special Officer was illegal and it failed to follow the mandate of Rule 13 & 14 of the Chhotanagpur Tenancy Rules before conducting the proceeding ex-parte and thus it had committed a manifest error of law.

The second contention raised by the learned Counsel for the petitioner is that possession of the father of the petitioner over the land in question continued since 1935 and thus after a lapse of a period of five years from which the father of the petitioner had been put in possession as a non-raiyat, making possession of the father of the petitioner and thereafter the petitioner''s possession over the land in question hostile and thus no order of restoration u/s 71A of the Chhotanagpur Tenancy Act could have been passed after lapse of such a long period of time.

It has also been contended that the question whether the father of the petitioner had acquired the right to execute the gift deed or not was a question which could only be adjudicated by a Civil Court of competent Jurisdiction and not under a proceeding u/s 71A by an authority possessing limited jurisdiction.

It has also been contended that the petitioner''s father had valid right, title and interest as occupancy Raiyat over the land in question by remaining in possession for more than 12 years and in this regard he refers to and relies upon Section 76 of the Chhotanagpur Tenancy Act that the petitioner was denied the opportunity to prima-fade satisfy the authority that in view of the custom prevalent in the area that her father had acquired rights similar to that of an occupancy Raiyat.

Sri M.S. Anwar, learned senior counsel appearing for the respondent has submitted that notice was served upon the petitioner but he refused to accept the same and the process server had given a note that the notice was refused to be accepted. It has further been contended that respondent Nos. 4 & 5 are Raiyat holder of the plot in question and the same is recorded in the R.S. record of right in the name of the father of the private respondent and the rent was also paid by the respondents. It has also been contended that Doud Toppo, the father of the petitioner has been entered as an under Raiyat in Sikmi Khata No. 37. It has also been submitted that the induction of an under Raiyat on agricultural holding cannot be made for more than five years and thereafter, it comes within the meaning of transfer u/s 46 of the Chhotanagpur Tenancy Act and no document or permission was filed before the competent authority.

I have considered the rival submission and the pleading as well as the legal issues and the settled law with regard to right of under Raiyat and Sikmidar.

The first issue relates to non-compliance of the mandate of Rule 13(a) & (b) of Chotanagpur Tenancy Rules, 1959 and the exparte proceeding. It will be evident on reading Rule 13(a) and (b) of C.N.T. Rules, 1959 that if a person on whom a process is served, refuses to sign the acknowledgement or the serving officer inspite of best efforts could not find to whom the process is addressed the serving officer shall affix a copy of the process. The mandate of Rule 13(a) and (b) provides for two procedures of deemed service. Rule 13(a) provides that in case if the person to whom the process is to be served, refuses to sign the acknowledgement and the process server gives a report which is an admitted position in the present case, the service will be deemed to be completed and the second option provided is in Rule 13(b), wherein if inspite of best effort and reasonable diligence, service is not effected then the serving officer shall affix a copy of the process on the outer door or at some conspicuous part of the house.

Considering the aforesaid facts the contention raised by the learned Counsel for the petitioner seems to be erroneous and misconceived since there is due compliance of Rule 13(a) of the C.N.T. Rules 1959 and the service will be deemed to be complete because of the report given by the process server that the petitioner refused to accept notice. Even otherwise the petitioner has preferred the 1st Appeal before the Deputy Commissioner, followed by the Second Appeal before the Revisional Authority i.e. the Commissioner and had taken all relevant grounds and the appellate authority as well as the Revisional authority gave a concurrent finding both on the question of notice as well as on merits against the petitioner.

In order to decide the second issue it is relevant to quote Section 76 of the C.N.T. Act and Explanation (II) thereof and the same are being reproduced hereunder:

Saving of custom.- Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by its provisions.

Illustrations

(i) ....

(ii) A custom or usage by which an under "Raiyat" can obtain rights similar to those of an occupancy'' Raiyat is similarly, not in consistent with, and is not expressly or by necessary implication modified or abolished by the provisions of this Act, and will not be affected by this Act.

(iii) ....

(iv) ....

An under Raiyat is a class of tenant, holding the land under a Raiyat recognized by custom under Tenancy Law. Section 44 of the Act speaks about the Raiyat''s right to receive the land on a lease but it does not include under Raiyat. Section 46 of the Act also does not speak about any restriction for creating subsidiary under Raiyati tenancy. Illustration (II) of Section 76 of the Act makes it clear that any such custom by which an under Raiyat can obtain a right similar to those of an occupancy Raiyat is similarly not in consistent with, and not expressly or by necessary implication modified or abolished by the provision of this Act and thus, it will not be affected by this Act.

The aforesaid saving clause u/s 76 of CNT Act clearly provides that the person who has been put in possession of a land as an under raiyat, but subsequently with the lapse of time and in accordance with the prevalent customs of the locality, has acquired the rights of an occupancy raiyat then the same will not be affected by this Act. There is another aspect that the adjudication by an authority exercising limited powers u/s 71A of the C.N.T. Act at the behest of respondent No. 4 and 5 was also without jurisdiction.

The land in question was transferred by way of a registered gift Deed on 17.11.1959. The aforesaid gift was executed after due permission from the Deputy Commissioner in Misc. Case No. 146-R-8(II) of 1958-59 vide order dated 29.04.1959 and thus there was no violation of Section 46 of Chota Nagpur Tenancy Act. A specific case has been made out that in Argora village where the land is situated, a person who has remained in possession for a period of more than 12 years, is vested with occupancy rights and, thus, the petitioner''s father acquired the rights of an occupancy raiyat on the basis of local customs and he had every right to execute the gift deed in favour of the petitioner. The petitioner''s father name has been recorded as Sikmidar in the revisional survey records of right almost 70 years before the date of filing of restoration application.

The third issue which requires consideration is with regard to limitation. The learned Counsel for the petitioner has submitted that the application filed by Respondent Nos. 4 & 5 was time barred and the delay in filing restoration petition was unreasonable since the father and consequently the petitioner have remained in possession over the land in question much prior to the year 1935. The law with regard to limitation is well settled.

It cannot be taken to mean that the powers could be exercised without any time limits. The Hon''ble Supreme Court considered this issue in Jai Mangal Oraon Vs. Smt. Mira Nayak and Others, and at para-16 held that the period of 40 years could not be condoned in view of the rights of parties having been acquired in the mean time under the ordinary law as well as law of limitation.

This issue was again considered in Situ Sahu and Others Vs. The State of Jharkhand and Others, with reference to amended Article 65 of the Limitation Act, 1963 which provided 30 years under the Limitation Act for moving application for restoration and the Hon''ble Supreme Court held that 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. In that view held that Special Officer had not exercised its power correctly u/s 71A of Chotanagpur Tenancy Act after such lapse of unreasonable long time. Again in a recent Judgment as reported in Fulchand Munda Vs. State of Bihar and Others, , the Hon''ble Supreme Court again reiterated the same view by holding that the power should be exercised within a reasonable period of time and in that case the gap of more than 50 years in challenging the transfer was held as not a reasonable time for exercising the power. Even this Court vide its order in a similar matter as reported in Akhouri Akhileshwari Charan Lal and Others Vs. State of Bihar and Others, while relying upon the aforesaid Judgment reiterated the view of reasonableness and held that application for restoration has to be moved and/or the power has to be exercised by the Deputy Commissioner within a reasonable period of time.

Thus the contention raised by the learned Counsel for the petitioner has substance and merit both on the ground of saving clause u/s 76 of CNT Act and limitation. Even though the word in Section 71A of CNT Act is "at any time" the same has to be within a reasonable time. In the instant case the admitted position remains that the father of the petitioner was in possession of the land in question prior to 1935 and consequently the petitioner remained in possession over the land in question pursuant to the gift deed being executed in the year 1959 and the petition for restoration was filed and registered as S.A.R. Case No. 461/1986-87 after a lapse of almost 70 years from the date when the father came in possession and the delay is quite unreasonable as settled by the Hon''ble Supreme Court and this Court (Supra).

Considering the aforesaid facts and circumstance of the case, this writ petition is allowed on the question of limitation since the restoration application was not filed within a reasonable period of time as laid down by the Hon''ble Supreme Court.