Mikhail Soreng, Mikhail Kharia vs State of Jharkhand

1. Heard Mr. P.P.N. Roy, Senior Advocate appearing for the petitioner.

2. Heard Mr. Rajiv Anand, G.A.-IV appearing for the respondent-State.

3. Heard Mr. Sandeep Verma, counsel appearing for the respondent no. 3.

4. This writ petition has been filed for the following reliefs:

“For quashing the order dated 11.07.2000 at Annexure-2 as passed in Gumla Revenue Revision No. 113/89 passed by learned Commissioner,

South Chotanagpur Division, Ranchi (Respondent no. 2) whereby and whereunder the revision application was allowed in terms of quashing the

restoration order u/s 71A of C.N.T. Act dated 28.4.89 passed by Additional Collector, Gumla in S.A.R. Appeal no. 4 R 15 of 1988-89.†5. Senior

counsel for the petitioner submits that the ancestors of the petitioner were the recorded tenant of the property involved in this case and an application

for restoration of land under section 71A of Chotanagpur Tenancy Act, 1908 was filed by the petitioner before the S.A.R. Court which was

numbered as S.A.R. Case No. 30 of 1986-87, and was allowed in favour of the petitioner by the S.A.R. Officer.

6. Against this order an appeal being S.A.R. Appeal No. 4 R 15 of 1988-89 was filed by the private respondent, which was dismissed .

7. Thereafter the private respondent filed revision which was numbered as Gumla Revenue Revision No. 113 of 1989. This revision application has

been allowed by the Commissioner, South Chotanagpur Division, Ranchi vide impugned order dated 11.07.2000 by holding that the application for

restoration filed by the petitioner in the year 1986-87 was time barred and while holding this he has considered the registered deed of surrender

executed by the recorded tenant dated 05.11.1952 which was subsequently said to have been settled in favour of the private respondent in the year

1955.

8. Counsel for the petitioner by referring to the appellate order S.A.R. Appeal No. 4 R 15 of 1988-89 submits that the specific case of the petitioner

is that the registered deed of surrender dated 05.11.1952 was itself prepared by practicing fraud upon the ancestors of the petitioner and he further

submits that prior permission of the Deputy Commissioner was not taken prior to execution of this document. However, during the course of argument

the counsel for the petitioner could not give the date of dispossession of the petitioner and he submits that no order of restoration could have been

passed on the basis of the registered deed of surrender executed in the year, 1952.

9. Counsel for the respondent submits that the application for restoration of land under Section 71A of the Chotanagpur Tenancy Act,1908 was

filed by the petitioner in the year 1986-87 and from the perusal of the impugned order passed by the Commissioner, South Chotanagpur Division,

Ranchi as contained in Annexure-2 to this writ petition, it appears that the ancestors of the petitioner, who were the recorded tenants of the

property, were dispossessed from the property as back as in the year,  1952  by  way  of  registered  deed  of Â

surrender  dated 05.11.1952 in favour of Chotanagpur Encumbered Estate and the specific case of the respondent herein is that the property was

settled in their favour in the year, 1955.

10. Counsel for the respondents further submits that the revisional authority held that the application for restoration was time-barred in as much as

the application for restoration was filed only in the year, 1986-87 i.e. after expiry of more than 30 years. He submits that in view of the judgment

passed by Hon’ble Supreme Court in the case of “Situ Sahu Vs. State of Jharkhand†it has been held that the term “at any timeâ€

mentioned in Section 71A of Chotanagpur Tenancy Act, 1908 does not entitle the recorded tenant to file their application beyond reasonable time.

He submits that the learned Commissioner has held the application for restoration to be timebarred and has allowed the revision application and there

is no illegality or perversity in the impugned order. Therefore, this impugned order has been rightly passed.

11. This Court finds that the order passed by the original court is not on record. This Court also finds that the application which was filed by the

petitioner for restoration of land under Section 71A Chotanagpur Tenancy Act, 1908 is also not on record. The appellate order is on record which has

been annexed and marked as Annexure-1 to this writ petition. This Court further finds as already recorded above, the counsel for the petitioner during

the course of arguments could not give the date of dispossession from the property from which he claims to have been dispossessed.Â

12. This Court further finds that the point of limitation has not been considered by the appellate authority. It appears that the revisional authority

has calculated the date of dispossession from the date of surrender by the recorded tenant in the year 1952 by a registered instrument dated

05.11.1952 and has accordingly held that the application for restoration of land filed by the petitioner was itself time barred. In the case reported in

(2004) 8 SCC 340 ( Situ Sahu and others versus State of Jharkhand ) it has been held by Hon'ble the Supreme Court at paragraph no. 14Â

that power under section 71A of Chotanagpur Tenancy Act, 1908Â Â has to be exercised within a reasonable time. In the instant case the petitioner

had filed application in the year 1986-87 for restoration of land after expiry of more than 30 years from registered deed of surrender dated 05.11.1952

and the counsel for the petitioner has not been able to indicate the date of dispossession of the petitioner, this Court is of the considered view that the

petitioner has failed to file his application within a reasonable time and accordingly his application was barred by limitation. This Court is further of the

considered view that the impugned order by which the application for restoration of land was said to be barred by limitation having the date of

dispossession as 05.11.1952 i.e. the date of registration of the deed of surrender, does not suffer from any illegality or perversity.

13. In the case of Situ Sahu (supra), it has been held by the Hon’ble Supreme Court that even if the transfer is by fraudulent method , the

application for restoration of land under Section 71A of Chotanagpur Tenancy Act, 1908 has to be filed within a reasonable period. The term “at

any time†has been interpreted by the Hon’ble Supreme Court to mean that the application for restoration has to be filed within the reasonable

period. Para 14 of the aforesaid judgment (Situ Sahu) reads as under: “14. We shall now examine the last argument of Shri Narasimha that the

transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for

we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam the power under Section 71-A could have been exercised

only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special Officer exercised his

powers under Section 71-A within a reasonable period of time. 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. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case which

was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior

sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947Â (with

effect from 5-1-1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15-11942).

Obviously, therefore, no such provision existed in 1938, and the same reasoning applies.â€​

14. Considering the facts and circumstances of this case and considering the fact that the application for restoration was filed beyond the period of

30 years from the registered deed of surrender, this Court does not find any illegality or perversity in the impugned order dated 11.07.2000 passed by

the learned Commissioner, South Chotanagpur Division, Ranchi and accordingly, this writ petition is dismissed.

         Â