Harish Chandra Keshri vs State of Jharkhand and Others

Amareshwar Sahay, J.—Heard Mr. Amar Kumar Sinha, learned Counsel for the petitioner, Mr. P.P.N. Roy, learned senior counsel appearing for Respondent No. 5 and Mr. L.K. Lal, learned Standing Counsel for respondent Nos. 1-4.

The question for consideration in the present case is as to whether the land in question which has been transferred by a registered document pursuant to an order granting permission by the Deputy Commissioner, Ranchi u/s 49 of the Chhotanagpur Tenancy Act, the claim of the respondent No. 5 for restoration of the said land under the provision of Section 71A of the Chhotanagpur Tenancy Act can be said to be maintainable and whether Respondent Nos. 2 to 4 have any jurisdiction to pass order for restoration of the disputed land in exercise of the power u/s 71A of the Chhotanagpur Tenancy Act, when no contravention of Section 46 or the other provisions of Chhotanagpur Tenancy Act has been alleged.

The relevant facts, in short, are that the respondent No. 5 filed an application before the Deputy Commissioner, Ranchi on 21/10/1995 u/s 71A of the Chhotanagpur Tenancy Act for restoration of 0.58 acres of land out of RS Plot No. 1721 under Khata No. 140 situated in Village Tangar in the District of Ranchi alleging therein that the said land was illegally and fraudulently taken by the petitioner through a registered sale deed in the year 1993. The said application was registered as SAR Case No. 135 of 1995. The respondent No. 4. i.e. the Special Officer by order dated 06/12/1996 as contained in Annexure-5 passed an order for restoration of the aforesaid land in the favour of the respondent No. 5.

The petitioner, thereafter, filed an appeal before the Deputy Commissioner, Ranchi being SAR Appeal No. 14 R 28 of 1998-99. The Deputy Commissioner dismissed the said appeal on the point of limitation by order dated 03/06/1999. The petitioner challenged the said order of the Deputy Commissioner by filing a revision before the Commissioner, which was allowed by the Commissioner by order dated 26/08/1999 and he remanded the matter back to the Deputy Commissioner to decide the appeal a fresh on merit after hearing the parties. Thereafter, by order dated 04/11/1999, as contained in Annexure-9, the Deputy Commissioner again dismissed the appeal. The petitioner, thereafter, moved before the Commissioner in revision being SAR Revision No. 154/1999 but the learned Commissioner by order dated 08/07/2005, as contained in Annexure-10, dismissed the revision.

In this application, the petitioner has challenged the orders passed by the SAR Officer, contained in Annexure-5, the order dated 04/11/1999 of the Deputy Commissioner, contained in Annexure-9 and the order dated 08/07/2005, passed by the Commissioner, contained in Annexure-10 to this writ application.

The case of the writ petitioner is that the land in question, i.e. Plot No. 1721, area 0.58 acres situated in village Tangar was recorded as Kaimi Raiyati land of Sadhwa Oraon. The recorded Raiyat Sadhwa Oraon had two sons, namely Ranka Oraon and Etwa Oraon. Ranka Oraon died issueless, whereas Etwa Oraon died leaving behind his only son Naruwa Oraon. Naruwa Oraon died leaving behind three sons and a widow. The Respondent No. 5 Shibna Oraon is one of the sons of Naruwa Oraon. In order to set up a small scale industry, for manufacture of tiles, the petitioner by filing an application u/s 49 of the Chhotanagpur Tenancy Act applied before the Deputy Commissioner, Ranchi for grant of permission to purchase the aforesaid land of Plot No. 1721 area 0.58 acres. It was registered as Permission Case No. 9/1990-91. After enquiry, the Circle Officer recommended for grant of permission and, thereafter, the Deputy Commissioner, Ranchi, being the competent authority under the C.N.T. Act, passed an order u/s 49 of the Chhotanagpur Tenancy Act on 05/02/1992 granting permission for sale of the aforesaid land in favour of the petitioner by Shibna Oraon and his co-sharers at a price fixed at Rs. 35,000/- payable by the petitioner to the said Shibna Oraon and his co-sharers. After receipt of the aforesaid consideration amount, fixed by the Deputy Commissioner, the respondent No. 5 Shibna Oraon and his co-sharers executed a deed of sale on 02/11/1993 with respect to the aforesaid lands in question in favour of the petitioner, which was registered as deed No. 8794 dated 02/11/1993 (Annexure-3) and thereby, the petitioner acquired the valid right, title, interest and possession over the land in question.

According to the petitioner, the respondent No. 5 by suppressing all these facts, filed an application u/s 71A of the Chhotanagpur Tenancy Act for restoration of the aforesaid lands on the ground that the petitioner has got illegally transferred the said land in his favour by respondent No. 5 and his co-sharers. The Special Officer passed an order for restoration of the lands in favour of the respondent No. 5 by order contained in Annexure-5. The appeal and revision against the order for restoration were also dismissed by the Deputy Commissioner and the Commissioner respectively by order contained in Annexures-9 and 10.

Mr. Amar Kumar Sinha, learned Counsel appearing for the petitioner, submitted that since the land in question had been transferred in favour of the petitioner by the respondent No. 5 and his co-sharers by a registered sale deed, after taking permission of the Deputy Commissioner u/s 49 of the Chhotanagpur Tenancy Act and, therefore, the application filed by the respondent No. 5 for restoration of the said lands in question u/s 71A of the Chhotanagpur Tenancy Act was not maintainable and the respondent Nos. 2 to 4 had no jurisdiction or authority to pass any order for restoration of the said lands in favour of respondent No. 5 in exercise of the powers u/s 71 A of the Chhotanagpur Tenancy Act. He further submitted that the transfer of the land so made after complying the provision of Section 49(1) to 49(4) can only be annulled or set aside by the State Government in exercise of the powers under the provisions of Section 49(5) of the Chhotanagpur Tenancy Act and not otherwise. He further submitted that Section 71-A of the Chhotanagpur Tenancy Act, for restoration of those lands was not applicable in the facts and circumstances of the case since the lands were transferred after permission of the Deputy Commissioner u/s 49 of the Chhotanagpur Tenancy Act. In support of such submissions he has relied on the decisions of this Court in the case of " Etwa Oraon Vs. Smt. Kusum Devi and Others, , in the case of "Sri Rajendra Nath Kapoor v. State of Bihar and Ors. reported in 1990 BLT 352 (DB)" and in the case of ''Kusum Devi, etc. v. State of Bihar and Ors. reported in 2004 (3) JCR 343 ".

On the other hand, Mr. P.P.N. Roy, learned senior counsel appearing for respondent No. 5, has submitted that the amount of consideration was not paid to the respondent No. 5 and, therefore, the registered deed of sale, which was executed in favour of the petitioner was subsequently, cancelled by the respondent by a deed of cancellation. It is submitted that the petitioner got the land transferred by committing fraud and, therefore, the learned courts below have rightly passed an order for restoration of the land in favour of the respondent No. 5.

Mr. L.K. lal, learned Standing Counsel very fairly submitted that the transfer of any land after grant of permission by the Deputy Commissioner, u/s 49 of the Chhotanagpur Tenancy Act, can only be annulled and set aside under the provisions of Section 49(5) of the Chhotanagpur Tenancy Act and not u/s 71A of the Chhotanagpur Tenancy Act, which has already been held by the Division Bench of this Court.

In the case of "Sri Rajendra Nath Kapoor v. State of Bihar and Ors." (Supra) the Division Bench of Patna High Court, Ranchi Bench has held as follows:

Regulation 1 of 1969 came into force in February, 1969 and Section 49(5) was introduced in 1976. It must be presumed that the legislature knew that Section 71A had been introduced in 1969 empowering the Deputy Commissioner to pass order under certain circumstances, yet the legislature inserted Sub-section (5) in Section 49 for the first time in 1976. This indicates that the scope of Section 7A and 49(5) are completely different. The former speaks about fraud on the transferor- raiyat whereas the letter speaks about misrepresentation or fraud on the Deputy Commissioner. In Section 49(5) the reference is to Sub-sections (1) and (2) of Section 49 whereas in Section 71A; Section 46 has been specifically mentioned. It is general rule of interpretation of statutes that special provision will over ride the general provision. When there is a specific provision of annulling transfer made with consent of the Deputy Commissioner, the recourse must be had to that and an application under the general provision, i.e. u/s 71A of the Act is barred. Moreover, as noticed, above the forum is also different.

In the case of "Kusum Devi, etc. v. State of Bihar and Ors. Reported" (Supra) the decision rendered in "Sri Rajendra Nath Kapoor" was also followed and, thereafter, in the case of "Etwa Oraon" (Supra) it has been held that any such circumstances for annulling the transfer made u/s 49 of the Chhotanagpur Tenancy Act, Section 71A of the Chhotanagpur Tenancy Act is not applicable and no such application made u/s 71A of the Chhotanagpur Tenancy Act would be maintainable.

In this view of the matter, it appears that the point raised in this writ petition is fully covered by the aforesaid three decisions of this Court. It is not disputed in the present case that the land in question was transferred after taking permission of the Deputy Commissioner u/s 49 of the Chhotanagpur Tenancy Act and, therefore, it has to be held that the application filed by the respondent No. 5 for restoration of the land in question u/s 71A of the Chhotanagpur Tenancy Act was not at all maintainable. Consequently, the orders passed by the Special Officer, contained in Annexure-5, Deputy Commissioner, contained in Annexure-9 and the order passed by the Commissioner, contained in Annexure-10, by which the land has been ordered to be restored in favour of the respondent No. 5 u/s 71A of the Chhotanagpur Tenancy Act cannot be sustained.

Accordingly, this writ application is allowed. The order dated 06/12/1996, passed by the Special Officer, Scheduled Area Regulation, Ranchi, contained in Annexure-5, the order dated 04/11/1999, passed by the Deputy Commissioner, contained in Annexure-9 and the order dated 08/07/2005, passed by the Commissioner, contained in Annexure-10 are hereby quashed. In the facts and circumstances of the case, there shall be no order as to costs.