Johan Lakra vs State of Bihar and others

G.C. Bharuka, J.—Since common facts and law are involved in these two writ applications, therefore, these have been heard together and are being disposed of by this common judgment. These two writ applications have been filed by the petitioner, Johan Lakra, for quashing the orders dated 30.6.86 and 30.5.85 (annexure 8 in both applications) passed by the Special Officer, Scheduled Area Regulation, Ranchi, respondent no. 4 as well as the appellate and revisional orders filed as annexures 9 and 10 in both the applications respectively by which, pursuant to the provisions u/s 48 of the Chotanagpur Tenancy Act, 1908 (hereinafter in short ''the Act''), the authorities have directed for restoration of the lands held by the petitioner.

The foundational facts are not in dispute. The lands in question are plot nos. 1356 and 1355 of khata no. 154 and sikmi khata no. 22 respectively situated at Kokar, P.S. Kandey in the district of Ranchi. According to the revisional records of right prepared on 2nd of January, 1935 (annexure 3), Nathuni Kumhar and Chedi Kumhar, both sons of Jagat Kumhar, have been shown as in possession of the plots in question as Kayamidars and Sikmidars respectively. The Kayami right was acquired on rent of Rs. 3/ on the basis of a sada Hukumnama dated 25.9.1914.

After the death of the original Kayamidars/Sikmidars, it was inherited by the heirs, Ram Kishun Kumhar and others who sold the same to one Erich Kujur by virtue of a registered sale deed dated 8.8.1955. According to Erich Kujur, he had purchased these plots as a benamidar of Promod Tigga and, accordingly, he executed a deed of release in his favour. Pursuant to this deed of release, Promod Tigga got his name mutated in the revenue records and began to pay rent in his own name to the khewatdar.

After the death of Promod Tigga his son, Roshan Lal, after taking permission from the competent authority u/s 46 of the Act, sold 9.25 decimals of plot no. 1355 and 8.05 decimals of plot no. 1356 to the petitioner by virtue of registered sale deed dated 20.3.82. It is also not in dispute that right from 1914 the petitioner and his predecessor-in-interest are in continuous uninterrupted possession of the plots in question.

It seems that on the basis of two different applications filed by respondent no. 5, Birsa Munda, dated 26.5.84 (annexure 1) proceedings were initiated by respondent no. 4 u/s 71A of the Act but subsequently the same were converted into one u/s 48 of the Act on the ground that the lands in question were Bhuinhari lands.

After hearing the parties in respect of their rival claims respondent no. 3, by the impugned orders dated 30.6.86 and 30.5.85 respectively as contained in annexure 8, has directed for eviction of the petitioner from the lands in question and restoring the same to respondent no. 5. After discussing the facts, as stated above, he has held that the repeated transfers have been effected by practising fraud without making respondent no. 5 even a party to the said transactions and, therefore, according to him, the transfers are not valid.

Section 48 of the Act reads as under :�

Restriction of the transfer of Bhuinhari tenure.�(1) A member of a ''Bhuinhari'' family may transfer any ''Bhuinhari'' tenure as defined in the Chota Nagpur Tenures Act, 1869 (Ben. Act 2 of 1869) which is held by him or any portion thereof in the same manner and to the same extent as an aboriginal ''raiyat'' may transfer his right in his holding under Clauses (a) and (b) of sub-section (2) of Section 46.

(2) The (State) Government may make rules permitting a member of a ''Bhuinhari family who holds any ''Bhuinhari tenure to transfer such tenure or any portion thereof by sale, gift, exchange or will, subject to such restrictions and conditions as may be specified in the said rules.

(3) Save as provided in sub-section (1) or in any rules made under sub-section (2), a transfer of a Bhuinhari tenure or any portion thereof shall not be valid to any extent.

(4) If a member of a ''Bhuinhari family transfers any ''bhuinhari tenure which is held by him or any portion of such tenure in contravention of the provisions of this section or on the expiration of the period for which any such member has transferred his ''Bhuinhari'' tenure or any portion thereof in accordance with the provisions of this section or any rules made thereunder, the Deputy Commissioner may, of his own motion or on the application or such member, eject the transferee and place such member in possession of the said ''Bhuinhari tenure or portion at any time within twelve years from the date of the transfer or from the expiration of the period of the transfer, as the case may be.

Sub-section (4) of section 48 of the Act quoted above, empowers the Deputy Commissioner to eject the transferee and place such member of the Bhuinhari family in possession of a Bhuinhari tenure or portion at any time within twelve years from the date of the transfer or from the expiration of the period of transfer, as the case may be.

One of the arguments advanced on behalf of the petitioner in the present writ applications is that the impugned orders of ejectment and restoration have been passed beyond the statutory period provided under sub-section (4) of section 48 of the Act and in any view of the matter, since the settlement, may be legal or illegal, was made in 1914 and the petitioner and his predecessor-in-interest have remained in continuous uninterrupted hostile possession for about 70 years, therefore, they have perfected their title by way of adverse possession which cannot now be disturbed by invoking the provisions, referred to above.

In support of the second limb of submission, reliance has been placed on behalf of the petitioner on a decision of the Supreme Court in the case of Sri Manchegowda etc. v. State of Karnataka and others (AIR 1984 Supreme Court, 1151) which was rendered in relation to Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of certain lands) Act (no. 2 of 1979). Their Lordships, though upheld the constitutional validity of sections 4 and 5 imposing prohibition on transfer but in paragraph 24 it has been held the said provision has to be read down so as to safeguard the interest of the transferee who had perfected his title in the land by prescription, by long and continuous enjoyment thereof in accordance with the law before commencement of the Act. Paragraph 24 of the judgment reads as under :�

Though we have come to the conclusion that the Act is valid yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of period of prohibition do not come within the purview of the Act and cannot be proceeded against under the provisions of this Act. The provisions of this Act make the position clear, as sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferee had ceased to be viodable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferee could not be rendered void by virtue of the provisions of the Act without Violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lauds having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the. Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act.

Therefore, in view of the statutory provisions, noticed above, as well as the law laid down by the Supreme Court, before making any declaration in terms of section 48 (4) of the Act, it was incumbent upon the Deputy Commissioner under the Act to apply himself to the aspects as to whether (i) there was any transfer by a member of the Bhuinhari family in respect of the lands within the statutory period and (ii) whether such an action is permissible in view of the limitation as to time provided for initiation of such proceedings as well as for perfection of title by a person possessing the land in contravention of any law.

Since in the present case, the authorities under the Act have not applied themselves to these aspects, therefore, I am left with no option but to quash all the impugned orders and direct respondent no. 4 to hear the parties after giving reasonable opportunity to them to adduce evidence on the issues involved and pass fresh orders in accordance with law. The writ applications are, accordingly, allowed. There will be no order as to costs.