Sarmistha Sinha and Meera Prasad vs State of Jharkhand and Others

Amareshwar Sahay, J.—These two writ petitions have been filed against the common order dated 25/11/2002 passed by the Commissioner, South Chhotanagpur Division, Ranchi, in Ranchi SAR Revision No. 46/1997. This order of the Commissioner has been annexed as Annexurp-7 in WPC No. 6768/2002, Annexure-6 in WPC No. 6729/2002, by which in exercise of the revisional power the learned Commissioner has set aside the order dated 30.10.1996 parsed by the Dy. Commissioner, Ranchi in SAR Appeal No. 13 R, 16'' 94-95 and allowed the revision application, filed by Respondent No. 5 Bandhan Oraon.

The relevant facts, in short, are that a proceeding u/s 71A of the Chhotanagpur Tenancy Act, being SAR Case No. 26/89-90 was initiated on an application made by Bandhan Oraon, S/O Sanicharwa Oraon (Respondent No. 5 herein) against Smt. Pratima Bakshi (Respondent No. 6) for restoration of the land appertaining to Plot No. 1589 within Khata No. 121 area 52 decimals. It was claimed on the ground that the applicant Bandhan Oraon was illegally dispossessed from the said land though he is the descendent of the recorded tenant, and a member of Scheduled Tribe''. The writ petitioners Sarmistha Sinha and Meera Prasad were added as party respondents in the aforesaid proceeding before the S.A.R. Officer since they had purchased part of the disputed land by registered deeds of sale.

The Special Officer, SAR, by his order dated 30th November, 1994, contained in Annexure-3 to the writ petition, dismissed the application for restoration, mainly on the around chat on 22/11/1957, by a registered Kabuliat, the nature of Hoc disputed land had been changed and it was made "Chhaparbandi" with the permission, of the landlord and therefore, Section 71A of the Chhotangpur Tenancy Act has no application in case of ''Chhaparhandi'' lands.

Being aggrieved by the order parsed by the Special Officer, S.A.R., Bandhan Qraon (Respondent: No. 5) preferred, an appeal before the Deputy Commissioner, Ranchi, which was registered as S.A.R. Appeal No. 18 R, 15/94-95. The Deputy Commissioner, by terms of the order contained in Annexuie-4 dated 30/10/19,96, dismissed the appeal after hearing the parties and confirm the order passed by the Special Officer, SAR holding that Section 71A of the Chhotanagpur Tenancy Act does not apply in the case of Chhaparhandi land and that the application tiled, by the applicant for restoration of the land was barred by limitation since it was filed after a lapse of 40 years.

The respondent No. 5 thereafter, moved before the Commissioner, South Chhotanagpur Division, Ranchi, by filing a revision application against the orders passed by the Special Officer as well as against the order of the Deputy Commissions which was registered as Ranchi SAR Revision No. 14/997. the learned Commissioner by the impugned order dated 25/11/200, contained in Annexure7, has allowed die revision application and (sic) aside the orders passed by the Specie'' Officer as well as the order of the Deputy Commissioner, Ranchi, and directed for restoration of the land in question in favour of Respondent No. 5 Bandhen Orad It is this order, which has been challenged by both the writ petitioners in these two writ petitions.

The petitioners of both the writ petition namely, Sarmistha Sinha and Meera Prasad, are the purchasers to part of the lands in question. The petitioner Sarmistha Sinha has claimed to have purchased 6.25 Kathas of land from Smt. Pratima Bakshi. by a registered sale deed on 24/08/1990, whereas the petitoner Meera Prasad of WPC No. 6729/2002 has claimed, to have purchase 8 kathas of the lands out of the plot in question from Smt Sibani Mukerjee by a registered gale deed dated 31 /04/1984 and the said Smt. Sibani Mukherjee, i.e. her vendor had purchased the said land from Smt. Pratima Bakahi by a registered sale deed dated 08/04/1976.

The case of the petitioners is that the lands in question, i.e. plot No. 1589, under Khata No. 121 measuring an area of 152 acres was originally recorded in the name of Sanicharwa Oraon and Somra Oraon, both sons of Soma Oraon. By a registered deed of settlement dated 22/11/1951, (Annexure-1) the nature of the land of plot No. 1589 was changed and it was converted into a ''Chhaparbandi'' by the recorded tenant with the permission of the ex-landlord Narmdeshwar Pd. Singh. After the lands in question become ''Chhaparbandi'', the recorded tenant Soma Oraon sold and transferred part of his ''Chhaparbandi'' land, measuring 21 kathas 12 chhatak out of the total area of 152 acres, to Smt. Pratima Bakshi (Respondent No. 6) by a registered deed of sale dated 06/12/1951. Further is of the petitioners is that Smt. Pratima Bakshi constructed a house and other structure over the land purchased by her and she also got her name mutated in the office of the Ranchi Municipal Corporation and paid holding tax in her name She also filed return meter the provision of Urban Land Ceiling Act and claimed that tin sands were chhaparbandi and she did not possess excess land. Accordingly the proceeding under the Urban Land Ceiling Act initiated against her, was dropped. Thereafter, Smt Pratima Bakshi transferred 6.25 kathas of the said ''Chhaparbandi land of Plot 1589 to the writ petitioner Sarmistha Sinha by a registered sale deed dated 24/08/1990. After purchasing the land along with building, the petitioner Sarmistha Sinha, renovated the old house and constructed a Pucca building and also got her name. mutated in Ranchi Municiapal Corporation within holding No. 2026 (A)/II.

The petitioner meera Prasad in WPC No. 6729/2002, has stated that Smt. Pratima Bakshi, sold 8 kathas of ''Chhaparbandi'' land of the aforesaid plot No. 1589 to Mrs. Sibani Mukherjee W/O Atula Nand Mukherjee by a registered deed of sale on 06/04/1976. Smt. Sibani Mukherjee got her name mutated in the Circle Office and also in the records of Ranchi Municipal Corporation. The said Sibani Mukharjee subsequently, by a registered sale deed dated 31/08/1984, sold the said 8 kathas of ''Chhaparbandi'' land in favour of the petitioner.

Mr. Amar Kumar Sinha as well as Mr. Ayush Aditya, learned Counsels appearing on behalf of the petitioners, submitted that it is a settled law that in a case of land, the nature of which is ''Chhaparbandi'' and is within the area of Municipal Corporation, an application u/s 71A of the Chhotanagpur ''Tenancy Act is not maintainable since Section 71A of the said At has got no application so far as the ''Chhaparbandi'' land, is concerned. They. further submitted that the application for restoration filed by the respondent No. 5 was also hopelessly barred by limitation, since it was filed after about a gap of 38 years.

Mr. Ayush Aditya, learned Counsel appearing for the petitioner in WPC No. 6729/2002 further submitted thai earlier also the respondent No. 5 had filed an application for restoration u/s 71 A of the Chhotanagyur Tenancy Act against the writ petitioner Meera Prasad being S.A.R. Case No. 26/89-90, which was already dismissed on 30/11/1994 and the appeal against the said dismissal order was also dismissed by the appellate court and. therefore, the second application for restoration filed by the Respondent No. 5 for the same cause of action against Meera Prasad is barrpd by resjudicata.

In support of their contentions, they have placed reliance in the case of Situ Sahu and Ors. v. State of Jharkhand and Ors. reported in 2004 (4) JLJR 109; Fulchand Munda Vs. State of Bihar and Others, ; Jai Mangal Oraon Vs. Smt. Mira Nayak and Others, ; Ashiwini Kumar Roy v. State of Bihar reported in 1987 BLT 332 (Pat)(RB); Anupama Roy v. The State of Bihar and Ors. reported in 2003 (3) JLJR 626 and Jaitu Oraon and Anr. v. The State of Jhnrkhand and Ors. reported in 2004 (2) JLJR 253; and Munni Devi and Ors. v. Special Officer, Special Area Regulation reported in 1989 BLT 407.

On the other hand, Ms. Shubha Jha, learned Counsel appearing for the respondent No. 5, by referring to the statements made in the counter affidavit filed on behalf of Respondent No. 5 submitted that the land in question was never convicted into Chhaparbandi and Sanicharwa Oraon, i.e. the father of the Respondent No. 5 never surrendered his raiyat land in favour of the landlord. The transfer of the land in question in favour of the petitioners or their vendor have been made in contravention of the provisions of Chhotanagpur Tenancy Act and, therefore, the learned Commissioner has rightly act aside the order passed by he Special Officer as well as the order of the Deputy. Commission a passed in appeal.

From the impugned order passed by the learned Commissioner contained in Annexure-7 in WPC No. 6768/2002 equivalent to Annexure-6 in WPC No. 6729/2002, it appears that the learned commissioner has based her orders on the ground that Sanicharwa Oraon could pot have executed, the Kabuliat alone because the lands were jointly held by Sanicharwa Oraon and, his brother.

There is no dispute of the fact that the total area of plot No. 1589 was 1.52 acres and even if it is accepted that the entire area was held and possessed by Sanicharwa Oraan and his brother even then Sanicharwa Oraon was definitely entitled, to sell hall of the area of the entire plot No. 1589 whereas Sanicharwa Oraon has sold only 36 decimals of lands to Smt. Pratima Bakshi after conversion of the land by registered deed dated 22/11/1951. Therefore, the finding by the learned Commissioner that Sanicharwa Oraon alone had no authority to transfer the land cannot be sustained.

In the present case, I find that the laid in question was allowed to be converted into ''Chhaparbandi'' by registered I need in the year 1951 itself and after conversion of die land into ''Chhaparbandi'', the same was sold by the father of the respondent No. 5 to Smt. Pratimet Bakshi by a registered Sale Deed dated 22/11/1951 and she also paid holding tax and ''Chhaparbandi'' rent etc. therefore it appears that the land in question was validly converted into ''Chhaparbandi'' land by the recorded tenant with permission of the land, lord by a registered Deed and subsequently, the said land was sold by registered Deed of Sale in favour of Smt. Pratima Bakshi on 22/11/1951 by a registered document.

In the case of Ashwini Kumar Roy v. State of Bihar reported in 1987 BLT 332 (Pat) (RB), the Division Bench of the Patna High Court, has deafly held that no proceeding u/s 71A of the Chhotanagpur Tenancy Act can be initiated for restoration of ''Chhaparbandi'' land. If the land is ''Chhaparbandi'' land it will be governed by Transfer of Properties Act and not by the Chhotanagpur Tenancy Act.

In the case of Anupama Roy v. The State of Bihar and Ors. reported in 2003 (3) JLJR 626, a Single Bench of this Court also quashed the order of restoration passed by the Courts below on the ground that the land in question was a ''Chhaparbandi'' land.

In this view pf the matter, as per the decision of the Division Bench in the case of Ashwini Kumar Roy v. State of Bihar reported in 1987 BLT 332 (Pat)(RB); Anupama Roy v. The State of Bihar and Ors. reported in 2003 (3) JLJR 626, I hold that the application u/s 71A of the Chhotanagpur Tenancy Act filed by the respondent No. 5 for restoration of the land in question, was not maintainable in view of the reasons stated hereinabove.

Now coming to the question of limitation. I find chat in the case of Jai Mangal Oraon Vs. Smt. Mira Nayak and Others, , the Supreme Court has held as follows:

Merely because Section 71A commences wilt, the word "at any time... ... ...", it cannot be taken to mean that those powers can be exercised without any point of time limit as in this case, after nearly about 40 yea s, rights of the parties acquired in the mean time under ordinary law and the law of limitation.

In the case of Situ Sahu and Ors. v. State of Jharkhand and Ors. reported in 2004 (4) JWR 109, the Supreme Court hold that the test Js not whether the period of limitation prescribed in 1963 Act has expired but whether the power u/s 71A of the Chhotanagpur Tenancy Act was sought to be exercised, after unreasonable delay and the lapse of 10 years is certainly not a reasonable time for exercise of power.

In the case of Fulchand Munda Vs. State of Bihar and Others, , it has been held that power u/s 71A of the Chhotanagpur Tenancy Act can be exercised by the Deputy Commissioner within a reasonable period of time, Gap of more than 50 years for challenging the transfer cannot be said to be the reasonable time.

In the present case, admittedly, the land in question was transferred in the year 1951 whereas, the application for restoration was filed in the year 1990 and the order for restoration has been passed by the Commissioner on 25.11.2002. Therefore, it is apparent that the application for restoration was filed after about 38 years whereas, the power u/s 71A has been exorcised after a gap of 51 years. Therefore, it can be said that the power for restoration was exercised after a long lapse of time which was not reasonable therefore it is held that the application for restoration tiled by the respondent No. 5 was barred by limitation.

It appears that the assertion of the petitioner Meera Prasad that earlier also an application u/s 71A of the Chhotanagpur Tenancy Act was filed against her by respondent No. 5 Bandhan Oraon being SAR Case No. 26/89-90 and the same was dismissed by the Special Officer as well as by the Appellant Authority. This point has already been settled by a number of judgments of this Court wherein it has been held that if on earlier occasions the application for restoration has been rejected and it has become final then subsequent application for restoration for the same and would be hit by principles of resjudicata. Reference in this regard may be made to the decisions in the case of Gadia Oraon and Others Vs. State of Jharkhand and Others, , and Bibi Makho and Others Vs. State of Bihar and Others, ; and Ram Chandra Sahu v. State of Bihar reported in 1990 (1) PLJR 604; and Smt. Satyawadi Devi v. State of Bihar reported in 1996 (2) PLJR 719".

It would not be out of place to mention here that though Mrs. Shubha Jha, learned Counsel has very vehemently argued on behalf of the respondent No. 5 and cited several decision such as reported in Pandey Orson Vs. Ram Chander Sahu and others, ; Jageshwar Sikhar and Ors. v. Yubrajin Srimati Baidehi Kuer and Anr. reported in 1970 PLJR 139; Deotu Ohdar v. State of Bihar reported in 1988 PLJR 211; State of Jharkhand and Others Vs. Arjun Das, ; Sakhiya Kumari Vs. State of Bihar (now Jharkhand) and Others, ; Sitlal Baitha @ Ram and Others Vs. Rudi Chamar and Others, ; Jainath Sahi Vs. The State of Bihar (now Jharkhand) and Others, and Ajay Metachem Ltd. v. Commissioner, South Chhotanagpur Division and Ors. reported in 2001 (1) JLJR 165, but lot a single decision cited by her is relevant for the points in issue in this cast Therefore, I have not discussed those decisions.

In view of the discussions and findings about, these two writ petitions are allowed. The orders dated 25/11/200 2 passed by the Commissioner, South Chhotanagpur Division, Ranchi, in Ranchi SAR Revision No. 4 6/1997 which has been annexed as Aimexure-7 in WPC No. 6768/2002 and Annexure-6 in WPC No. 6729/2002, are hereby get aside. Consequently, the order dated 30.10.1996 passed by the Dy. Commissioner, Ranchi in SAR Appeal No. 18R, 15/94-95 is hereby affirmed. However, in the facts and circumstance of the case, (here shall be no order as to cost.