Harish Chandra Keshri vs State of Jharkhand

Heard Mr. Kundan Kumar Ambastha, counsel appearing for the petitioner.

Heard Mr. Atanu Banerjee, counsel appearing for the respondent-State.

Heard Mr. Santosh Kumar Tiwary, counsel appearing for the private Respondent no. 5.

At the outset, counsel for the petitioner submits that the State of Jharkhand which has been impleaded as a party in this case has to be represented

through the Secretary, Revenue, Registration and Land Reforms Department, Govt. of Jharkhand, Ranchi, but this description is missing in the cause-

title and accordingly, he seeks permission to make necessary correction in the cause-title in red ink during the course of the day. Counsel for the

respondents have no objection to this prayer. Accordingly the petitioner is permitted to make the aforesaid additions in the cause title in red ink during

the course of the day.

This writ petition has been filed for the following reliefs:

“a. For a direction for quashing the order dated 26.06.2014 (Annexure7), passed by the respondent No.3, the Deputy Commissioner, Ranchi in

Misc. Appeal No. 57 R 15 of 2012-13 in purported exercise of his power under Section 49(5) of the Chhotanagpur Tenancy Act, whereby and

whereunder he has set aside the permission of sale granted to the petitioner in Permission Case No. 9 of 1990-91 on 5.2.1992 and has annulled the

registered sale deed dated 2.11.1993 executed in favour of the petitioner by the private-respondent No. 5 Shibna Oraon and his co-sharers, which is in

teeth of the judgment passed by this Hon’ble High Court in writ petition bearing W.P.C. No. 4475 of 2005, whereby and whereunder this

Hon’ble Court allowed the writ petition of the petitioner by quashing the order dated 6.12.1996 of restoration passed under Section 71(A) of the

Chhotanagpur Tenancy Act, by the respondent no. 4, Special Officer (Scheduled Area Regulation), the order dated 4.11.1999, passed by the

respondent No. 3, the Deputy Commissioner, Ranchi and the order dated 8.7.2005, passed by the respondent No. 2, the Commissioner, South

Chhontanagpur Division, Ranchi; and

b. For a direction restraining the respondents from interfering with peaceful possession of the petitioner over the lands in question.â€​ Â

Counsel for the petitioner submits as under:

(a) The matter relates to cancellation of permission to transfer of property under Section 49(5) of Chotanagpur Tenancy Act, 1908. He submits that in

order to set-up small scale industry for manufacture of tiles, an application under Section 49 of Chotanagpur Tenancy Act, 1908 was filed before

the respondent no. 3 â€" Deputy Commissioner, Ranchi for grant of permission to purchase plot No. 1721 measuring an area of 0.58 acres in village

Tangar, district- Ranchi which was registered as Permission Case No. 9 of 1990-91 and pursuant to such application and after completing all the

formalities, the permission was granted vide order dated 05.02.1992 for a consideration amount of Rs. 35,000/-.

(b) After completing further formalities and upon payment of consideration amount, the sale-deed in connection with aforesaid property was registered

as registered-deed no. 8794 dated 02.11.1993 and the petitioner started his manufacturing unit and the property was also mutated in the name of the

petitioner.

(c) An application under Section 71A of Chotanagpur Tenancy Act, 1908 was filed by the private respondent for restoration of the same land which

has been transferred vide registered sale-deed dated 02.11.1993 and the same was registered as S.A.R. Case No. 135 of 1995 and after hearing the

parties, the Special Officer (Scheduled Area Regulation), Ranchi by order dated 06.12.1996 passed an order for restoration of land in favour of the

private respondent against which, an appeal was filed which was numbered as S.A.R. Appeal No. 14 R 28 of 1998-99 which was dismissed vide

order dated 04.11.1999.

(d) Against the dismissal of the said appeal, S.A.R. Revision Case No. 154 of 1999 was filed before the Commissioner, South Chhotanagpur Division,

Ranchi and the said revision petition was also dismissed vide order                 dated 08.07.2005 and

ultimately, against the order of restoration, the petitioner filed a writ petition before this Court being W.P. (C) No. 4475 of 2005 and the same was

allowed in favour of the petitioner vide judgment                dated 22.12.2008. By referring to the said judgment dated

22.12.2008, the counsel for the petitioner submits that a specific submission was made before this Court in that writ petition that transfer of the land

was made after complying with the provisions of Section 49(1) to 49(4)Â and it can only be annulled or set-aside by the State Government in exercise

of powers under the provisions of Section 49(5) of Chotanagpur Tenancy Act, 1908 and not otherwise and therefore, a submission was made that the

order of restoration passed under Section 71A of Chotanagpur Tenancy Act, 1908 was wholly without jurisdiction .

(e) He submits that after considering the submissions made by the petitioner and after considering the various judgments cited by the petitioner, this

Court vide order dated 22.12.2008 in W.P.(C) No. 4475 of 2005 held that the transfer of property was made after obtaining permission under Section

49 of Chotanagpur Tenancy Act, 1908, the property cannot be subject matter of restoration under Section 71A of Chotanagpur Tenancy Act, 1908.

He submits that accordingly the order passed under Section 71A of Chotanagpur Tenancy Act, 1908 regarding restoration of land and all the

subsequent orders of appeal and revision arising out of said order dated 06.12.1996 passed by the Special Officer, Scheduled Area Regulation, Ranchi

were set-aside in W.P.(C) No. 4475 of 2005.

(f) Thereafter, another petition was filed by the private respondent which was numbered as Miscellaneous Case No. 57 R 15 of 2012-13 and the same

was coupled with a petition for condonation of delay under Section 5 of the Limitation Act, 1963 and the Deputy Commissioner vide order dated

26.06.2014 passed the impugned order although the same has been numbered as Miscellaneous Appeal No. 57 R 15 of 2012-13. He submits that by

this order the Deputy Commissioner cancelled the aforesaid permission granted to the petitioner vide aforesaid Permission Case No. 9/1990-91 dated

05.02.1992. The said authority further ignored the delay in filing application for cancellation of Permission by taking recourse to Section 14 of the

Limitation Act, 1963.

(g) He further submits that the order passed by the Deputy Commissioner is wholly without jurisdiction in as much as the power under Section 49(5)

of the Chotanagpur Tenancy Act, 1908 for cancellation of permission to transfer has been conferred upon the State Government and the learned

Deputy Commissioner could not have passed the said order. He submits that while passing the order, the Deputy Commissioner was further misguided

by his understanding that this Hon’ble Court in W.P.(C) No. 4475 of 2005 held that the permission by the Deputy Commissioner under Section 49

of the Chotanagpur Tenancy Act, 1908 can only be annulled and set-aside by the Deputy Commissioner under Section 49(5) of the Chotanagpur

Tenancy Act, 1908.

(h) He submits that the Deputy Commissioner while passing the impugned order has also invoked Section 14 of the Limitation Act, 1963 and had

entertained the application. He submits that under Section 49(5) of Chotanagpur Tenancy Act, the period of limitation prescribed is only 12 (twelve)

years. In the instant case, the petition for cancellation was filed on 13.09.2012 whereas, permission for transfer was granted on 05.02.1992. He

submits that the provisions of the Limitation Act, 1963 are not applicable to the provisions of the Chotanagpur Tenancy Act, 1908 and accordingly,

neither Section 5 of the Limitation Act, 1963 can be invoked nor Section 14 of the Limitation Act, 1963 can be invoked.

(i) He submits that the order of the Deputy Commissioner, Ranchi is wholly without jurisdiction and now the matter cannot be taken up by the State

Government as the application for cancellation has become time-barred upon expiry of 12 years from the date of grant of permission as back as on

05.02.1992.

Counsel for the private respondent, on the other hand, submits that the permission to transfer was granted on 05.02.1992 and immediately

thereafter, an application under Section 71A of Chotanagpur Tenancy Act, 1908 was filed which was numbered as S.A.R. Case No. 135 of 1995

wherein, a prayer was made to annul the registered sale-deed of the year, 1993. The application for restoration was allowed by S.A.R. Court and the

appeal as well as the revision against the said order was dismissed by the appellate authority and the revisional authority respectively. Ultimately, in

W.P.(C) No. 4475 of 2005 it was held that an application under Section 71A of the Chotanagpur Tenancy Act, 1908 was not maintainable and the

proper remedy is under Section 49(5) of Chotanagpur Tenancy Act, 1908. Accordingly, the order of the High Court was passed on 22.12.2008 and

thereafter, the private respondent filed his application before the authorized officer of the State Government-cum-Deputy Commissioner which was

numbered as Miscellaneous Case No. 57 R 15 of 2012-13, which was allowed by the impugned order.

Counsel for the private respondent submits that he had addressed the petition to the authorized officer of the State Government and the specific

provision of Section 49(5) of Chotanagpur Tenancy Act, 1908 was also mentioned in the petition and the Deputy Commissioner had also entertained

the said petition and had decided the matter vide order dated 26.06.2014 under a misconception of law that he is empowered to do so and ultimately,

the impugned order was passed.

He submits that even if the impugned order passed by the Deputy Commissioner, Ranchi is held to be without jurisdiction, the right of the private

respondent to proper adjudication of his application under Section 49(5) of the Chotanagpur Tenancy Act, 1908 cannot be said to have extinguished

in view of the specific provisions of Section 14 and Section 5 of the Limitation Act, 1963.

Counsel for the private respondent also submits that as per Section 230 of the Chotanagpur Tenancy Act, 1908, the applicability of the Limitation

Act, 1963 is not barred. He submits that the petition which was filed and addressed to the authorized officer of the State Government ought to have

been sent by the Deputy Commissioner to the State Government who is represented through Secretary, Revenue, Registration and Land Reforms

Department, State of Jharkhand, Ranchi for proper adjudication but the same having been entertained and adjudicated by the Deputy Commissioner,

the private respondent herein is not at fault.

He further submits that even the counsel appearing on behalf of the petitioner did not point it out before the Deputy Commissioner that he had no

jurisdiction to pass order under Section 49(5)Â of the Chotanagpur Tenancy Act, 1908.

Counsel appearing for the respondent-State, on the other hand, submits that as per the provisions of Section 49(5) of the Act, the competent

authority is the State Government and the State Government will be represented by the Secretary, Revenue, Registration and Land Reforms

Department, Government of Jharkhand, Ranchi. He submits that apparently the power has been exercised by the Deputy Commissioner under some

misconception of law that he is empowered to exercise powers under Section 49(5) of the Chotanagpur Tenancy Act, 1908. He further submits that

the matter may be remitted to the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, Ranchi and the

Deputy

Commissioner may be directed to remit the entire records of Miscellaneous Case No. 57 R 15 of 2012-13 to the aforesaid Secretary so that

appropriate order under Section 49(5) may be passed by the competent authority.

Counsel for the respondent-State also submits that so far as point of law regarding applicability of Limitation Act, 1963 is concerned, Section 230

of the Chotanagpur Tenancy Act, 1908 is very clear and accordingly, it cannot be said that the provisions of Section 5 and Section 14 of the Limitation

Act, 1963 are not applicable and accordingly, he submits that the contention of the petitioner that the matter cannot be taken up by the State

Government as the period of 12 years has already expired is devoid of on merit.

After hearing the counsel for the parties and after going through the materials on record, this Court finds that the permission for transfer was

granted on 05.02.1992 and the S.A.R. case under section 71A of Chotanagpur Tenancy Act, 1908 for restoration of land was filed on 21.10.1995

which was allowed in favour of the private respondent herein. Against the said order passed in the S.A.R. case, the appeal and the revision was

dismissed and thereafter, the writ petition was filed which was numbered as W.P.(C) No. 4475 of 2005 and the writ petition was ultimately decided on

22.12.2008 holding that the petition under Section 71A of the Chotanagpur Tenancy Act, 1908 for restoration of land which was filed by the private

respondent herein, was itself not maintainable.

Thereafter, the private respondent filed application addressed to the authorized officer of the State Governmentcum- Deputy Commissioner which

was numbered as Miscellaneous Case No. 57 R 15 of 2012-13 invoking the provisions of Section 49(5) of the Chotanagpur Tenancy Act, 1908. It

appears that before the Deputy Commissioner, none of the parties pointed out that the power under Section 49(5) of the Chotanagpur Tenancy Act,

1908 has to be exercised by the State Government. Under such circumstances, the Deputy Commissioner, after hearing the parties, passed an order

of annulment of the permission which is the impugned order in this writ petition and now the petitioner has taken a plea that the order passed by the

Deputy Commissioner in purported exercise of power under Section 49(5) of the Chotanagpur Tenancy Act, 1908 is also without jurisdiction.

Section 49(5) of the Chotanagpur Tenancy Act, 1908 reads as follows:

“(5) The State Government may, at any time within a period of twelve years from the date on which written consent is given by the Deputy

Commissioner in regard to the transfer of any holding or part thereof belonging to an occupancy-raiyat, who is a member of the Scheduled Tribes

either on its own motion or on an application made to it in this behalf set aside such written consent and annul the transfer, if after holding an inquiry in

the prescribed manner and after giving reasonable opportunity to the parties concerned to be heard it finds that the consent had been obtained in

contravention of the provisions of sub-sections (1) and (2) by misrepresentation or fraud, and in case any holding or part thereof has been transferred

on the basis of such written consent direct the Deputy Commissioner to take further necessary action under clause (c) of sub-section 4-A of Section

46.â€​

 This Court finds that upon bare reading of Section 49(5) of the Chotanagpur Tenancy Act, 1908, it is clear that the power under Section 49(5) of

Chotanagpur Tenancy Act, 1908Â has to be exercised by the State Government and the consequential followup action has to be taken by the Deputy

Commissioner.

Accordingly, this Court holds that the impugned order dated 26.06.2014 passed by the Deputy Commissioner in purported exercise of powers

under Section 49(5) of the Chotanagpur Tenancy Act, 1908 is wholly without jurisdiction.

Further the other point regarding limitation and the contention of the petitioner that the matter cannot be taken up now by the State Government

as 12 years have already elapsed from the date of permission, has to be decided by this Court. This Court is not inclined to accept the contention

raised by the petitioner particularly in view of provisions of Section 230 of the Chotanagpur Tenancy Act, 1908 which does not bar the applicability of

provisions of Section 14 of the Limitation Act. 19. Section 230 of Chotanagpur Tenancy Act, 1908 reads as under:-

“230. Application of the Indian Limitation Act, 1908. - The provisions of the Indian Limitation Act [1908], (9 of 1908) shall, so far as they are not

inconsistent with this Act, apply to all suits, appeals and applications under this Act.â€​

This Court further finds that sufficient time has elapsed on account of the matter being taken up under different provisions of Chotanagpur

Tenancy Act, 1908 by the authorities who had no jurisdiction to exercise the power and orders were passed on merits which have been ultimately

found to be without jurisdiction. In such circumstances it cannot be said that the right of the private party has extinguished upon expiry of 12 years

from the date of permission of transfer. In such circumstances this Court is of the considered view that the private respondent is entitled to have

benefit of Section 14 of the Limitation Act, 1963 which reads as follows:

“14. Exclusion of time of proceeding bona fide in Court without jurisdiction-

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil

proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the

same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain

it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil

proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such

proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-section (1) shall apply in

relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that

the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.â€​

This Court further finds that the application being Miscellaneous Case No. 57 R 15 of 2012-13 was addressed to the Authorized Officer of the

State Government-cum-Deputy Commissioner, Ranchi and the Deputy Commissioner instead of entertaining the matter himself ought to have remitted

the matter to the State Government for appropriate decision, but it seems that the Deputy Commissioner was himself under the misconception of law

that he has got powers to exercise powers under Section 49(5) of the Chotanagpur Tenancy Act, 1908. In such circumstances there is neither any

fault of the private respondent herein nor there is any lack of bonafides on the part of the private respondent herein while prosecuting his case before

the Deputy Commissioner. Accordingly, order dated 26.06.2014 passed by the Deputy Commissioner in purported exercise of powers under Section

49(5) of Chotanagpur Tenancy Act, 1908 is hereby set-aside being wholly without jurisdiction and the matter under section 49(5) of Chotanagpur

Tenancy Act, 1908 has to be taken up by the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, Ranchi.

Accordingly, the Deputy Commissioner, Ranchi is directed to remit the case record of Miscellaneous Case No. 57 R 15 of 2012-13 ( numbered as

Miscellaneous appeal No. 57 R 15 of 2012-13) to the Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand,

Ranchi who, in turn, is directed to take appropriate decision in the matter after hearing the parties within a period of six months from the date of

receipt of a copy of this order alongwith the case records of Miscellaneous Case No. 57 R 15 of 2012-13 ( numbered as Miscellaneous appeal No.

57 R 15 of 2012-13) .

This writ petition is hereby allowed with the aforesaid observations and directions.