Ram Charan Mahto and Others vs The State of Bihar and Others

S.N. Mishra, J.—In this writ application under Articles 226 and 227 of the Constitution of India, the Petitioners have challenged the order dated 29.7.87 as well as 28.9.87, passed by the Respondent Additional Collector, Giridih and the Commissioner, Chotanagpur Division, whereby the Petitioners have been non-suited from the land in question, pertaining to Khata No. 4 and 67 situated in village Etka in the district of Giridih measuring an area of 3.97 acres in a proceeding u/s 46A of the Chotanagpur Tenancy Act (hereinafter referred to as ''the Act'') copies of the said orders are made Annexures-5 and 6 respectively to this writ application. The lands in dispute stands recorded in the name of one Sukhram Manjhi in the last survey records and the sons of the said recorded tenants transferred the said land by a registered deed in favour of one Jainath Manjhi in the year 1946. The said Jainath Manjhi along with Kashinath Manjhi executed Dar raiyati Patta in favour of Smt. Fulia alias Chorki widow of Dukhi Mahto in the year 1951 and came in possession of the lands in question. In the year 1984, one Ratan Manjhi son of Lakhiram Manjhi and Bhikhu Manjhi son of Jainath Manjhi filed a patition purported to be under Sections 46A and 71 of the Act before the Respondent Deputy Collector, Land Reforms being the Special Officer under the Act, which was registered as Restoration Case No. 2 of 1984-85. The Respondent Deputy Collector, Land Reforms, by his order dated 11.1.85 rejected the petition filed by the aforesaid Ratan Manjhi after having held that the Petitioner being under raiyat and is in possession of the lands for more than 12 years, the provision of Section 46A of the Act is not applicable in such cases and accordingly rejected the claim of the said Ratan Manjhi, a copy of the said order is made Annexure-8 to this writ application. No appeal and/or revision was filed against the said order. However, on 21.1.1985 again a petition u/s 46 of the Act has been filed by the widow of the Ratan Manjhi for restoration of the lands in dispute. The Special Officer by his order dated 4.7.85 has again dismissed the appeal on the finding as has been held earlier by the Special Officer that the Petitioners being under raiyat and having in possession of the lands for more than ten years, the provision of the Act will not be applicable in such cases, a copy of the said order is made Annexure-4 to this writ application. Being aggrieved by the said order, the Respondent No. 4 and 5 preferred an appeal being L.R.A. No. 21 of 1985-86 and the Respondent Additional Collector by his order dated 29.7.87 set aside the order dated 28.9.87, a copy of which is made Annexure-6 to this writ application. Mr. Devi Prasad, learned Counsel for the Petitioners has assailed the orders under challenge in this writ application firstly on the ground that the Petitioners are admittedly under raiyat and having in possession of the land in question for more than 12 years, neither the provisions of Section 46 nor Section 71A of the Act is applicable, inasmuch as, the land in dispute does not come within the schedule area in the district of Giridih. It is further submitted that admittedly the petition for restoration u/s 46 of the Act having been filed beyond the period of limitation as prescribed under the statute, the Respondent authority could not have entertained it and, that too, without deciding the question of limitation. The 3rd and last question is that the order passed by the Respondent authorities as contained in Annexures-5 and 6 are barred by resjudicata since the question has already been decided by the competent authority which has become final as no apneal or revision has been filed against the said order. From mere perusals of the order under challenge, it appears that none of the questions has been considered and decided either by the appellate (sic) and/or by the Respondent Commissioner in their orders. The Commissioner by a criptic order has dismissed the revision as the admission stage itself without meaning the Petitioners, as it appears from the order itself. As has been stated above thequestion which has been raised has and not been considered by the (sic) authority. In that view of the matter the order dated 29.7.87 as well as the order dated 29.8.87 as contained in An(sic) and 6 are hereby quashed and the (sic) is remitted back to the (sic) authority, who will hear the parties and (sic) pass a fresh order in the light of the observations made hereinabove and an accordance with law without being prejudiced by the order of this Court Let be (sic) recorded that I have not expressed any opinion on the merit of the case at this stage. This writ application is accordingly allowed to the extent indicated above.