IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 4040 of 2008
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Pradeep Vijay Toppo Petitioner
Versus
State of Jharkhand and others Respondents
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CORAM: HON'BLE MR. JUSTICE D.G.R. PATNAIK
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For the Petitioner: Mr. V. Shivnath, Sr. Advocate
For the Respondent State: Mr. Arvind Kumar Mehta, Advocate
For the Respondents 5 and 6: Mr. Sanjeev Kr Sahai, Shashi Kr. Sahai
and Mr. Lakhan Kumar Sahay, Advocates
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CAV ORDER
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Reserved On: 11.12.2008 Pronounced On: __17.12.2008
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6. 17.12.2008
Petitioner in this writ application has prayed for quashing the order dated
27.8.2007 (Annexure-4) passed by the Commissioner, South Chhotanagpur Division,
Ranchi (Respondent no. 2) in Case No. 27/2007. A further prayer has been made for
staying the operation of the impugned order (Anneuxre-4) during the pendency of this
writ application.
2. Petitioner’s case in brief is as follows:
One Bhosa Oraon was the recorded tenant of the lands within M.S. Plot No. 1327
Ward No. 4, measuring an area of 314 Karies within village-Konka in the district of
Ranchi.
By a registered sale deed dated 21.11.1940, the recorded tenant Bhosa Oraon sold
and transferred the said property in favour of Rilhana Orain. The transfer was made by a
member of the Scheduled Tribe in favour of another member of the Scheduled Tribe.
After purchase of the lands, the purchaser Rilhana Orain came into possession of
the lands and her name was duly mutated in the records of Ranchi Municipality. Upon
her death, her son Jacob Cornelius Toppo came in possession of lands and constructed a
residential house thereon and continued to remain in possession over the said land. After
his death, his two sons namely, the petitioner and his brother Yashpal Toppo, came in
possession of the land and their names were mutated in the records of Ranchi Municipal
Corporation and they have been paying rent regularly against grant of rent receipts.
Sometime in the later part of the year 2003, the private respondents 5 and 6 filed
an application under section 71A of the C.N.T. Act before the Special Officer, SAR,
Ranchi (Respondent no. 4) praying for restoration of the aforesaid lands to them. A
proceeding vide SAR Case No. 970/03-04 was initiated. Without serving any notice upon
the petitioner, an ex-parte order of restoration was passed by the Special Officer
(Respondent No. 4) in favour of the private respondents 5 and 6 on 28.08.2004.
On being informed about the ex-parte order, the petitioner filed SAR Appeal No.
88R-15/06-07 before the Additional Collector, Ranchi (Respondent No. 3)
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After hearing the parties, the respondent no. 3, by his order dated 17.1.2007
(Anneuxre-3), allowed the appeal and quashed the order of restoration passed by the
Special Officer.
Much later, in the month of June 2008, the petitioner could learn that the order of
Additional Collector was set aside by the impugned order passed by the Commissioner,
South Chhotanagpur Division, Ranchi (Respondent No. 2) in the revision Case No. 27 of
2007 preferred by the private respondents 5 and 6. While setting aside the order of the
Additional Collector, the Commissioner had remanded the case to the Special Officer,
SAR, Ranchi for passing a fresh order after giving opportunity to the petitioner to be
heard and after examining the documents adduced by the parties.
3. Assailing the impugned order, Mr. V. Shivnath, learned Senior Counsel appearing
on behalf of the petitioner, submits that the impugned order has been passed without
proper appreciation of the facts of the case and the law on the subject relating to the
dispute and without application of judicial mind. Learned counsel submits that the
impugned order of the Commissioner was passed ex-parte without affording any
opportunity to the petitioner of being heard and even without serving any notice upon the
petitioner. Referring to the copy of the order sheet pertaining to the records of the
Revision Proceeding, learned counsel explains that from a bare reading of the entire order
sheet, it would transpire that the revision application was filed by the private respondents
on 6.3.2007 before the respondent no. 2 on the basis of which, the Revision case no. 27 of
2007 was registered. The respondent no. 2 heard the applicants on the point of admission
and thereafter allowed the revision application by the impugned order, without issuing
any notice to the petitioner and without affording any opportunity to the petitioner of
being heard. Learned counsel explains that the respondent no. 2 had no jurisdiction to
pass the impugned order and to set aside the order passed by the Additional Collector in
view of the fact that transfer of the lands in favour of the ancestor of the petitioner was
effected on 21.11.1940 when there was no restriction of transfer between the members of
the Scheduled Tribes. As such, restoration application itself was not maintainable and
was liable to be dismissed.
4. A counter-affidavit has been filed on behalf of the respondents 1 to 4. It is
explained that the proceeding for restoration of lands was initiated by the Special Officer,
SAR, Ranchi on the basis of the application filed by the private respondents under section
71A of the C.N.T. Act. Notice was issued to the petitioner in the said proceeding, but
despite issuance of notice when the petitioner did not appear, the Special Officer, SAR,
Ranchi decided the case ex-parte allowing the prayer for restoration of the lands in favour
of the private respondents.
It is further explained that against the order of the Special Officer, the petitioner
preferred an appeal before the Additional Collector, Ranchi vide S.A.R. Appeal No. 88R-
15/06-07. In the appeal, both the parties were heard. While allowing the prayer of the
petitioner, the Additional Collector recorded his findings on two issues, firstly, that
adequate opportunity was not given to the petitioner of being heard since, notices though
issued, were sent on incorrect names and addresses and the second issue being that the
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validity of transfer made by the original recorded tenant in favour of the ancestor of the
petitioner by a registered sale deed dated 21.11.1940, was a valid transfer and was not hit
by the provisions of section 46 of the C.N.T. Act since, no permission was required for
transfer of lands by a member of the Scheduled Tribe to another member of the
Scheduled Tribe in the year 1940 and the provisions of the C.N.T. Act, cannot be applied
with retrospective effect.
It is further explained that the proceeding in the revision application filed by the
private respondents against the order of the Additional Collector, was heard by the
Commissioner (Respondent No. 2), who by the impugned order, had remanded the case
back to the Special Officer, SAR, Ranchi for recording a fresh order after hearing the
parties and after examining the documents adduced by the parties.
5. The private respondents 5 and 6 have also filed their counter-affidavit wherein
they have denied and disputed the entire claim of the petitioner and have even gone to the
extent of challenging the sale deed relied upon by the petitioner as being a fake and
manufactured document and making a counter assertion that the lands stood recorded in
the name of their ancestor Bhosa Oraon and the petitioner had forcibly dispossessed them
from the land and even proceeded to make construction of a house thereon.
6. From the rival pleadings, the undisputed fact which emerges is that though, the
Commissioner (Respondent No. 2) had initiated a revision proceeding on the basis of the
application filed by the private respondents 5 and 6 against the order of the Additional
Collector, but no notice was issued to the petitioner, nor was any opportunity afforded to
the petitioner of being heard. Apparently, the impugned order was passed ex-parte against
the petitioner. It also appears that the learned Commissioner did not make any discussion
on the findings as recorded by the Additional Collector on the two main issues namely,
that the Special officer, Ranchi had passed an ex-parte order of restoration in favour of
the private respondents without ensuring service of notice upon the petitioner and on the
other issue, on the point of law, that transfer of lands in question made by the original
recorded tenant in favour of the petitioner’s ancestor being a transfer by one member of
the Scheduled Tribe made to another member of the Scheduled Tribe by virtue of the
registered sale deed executed in the year 1940, did not suffer from any illegality in view
of the fact that there was no restriction on such transfer at the relevant time and that such
restriction came for the first time into force only after enforcement of the CNT Act in
1947 and the Act cannot be applied with retrospective effect.
7. In the light of the manner in which the impugned order has been passed by the
respondent no. 2, it is manifest that the impugned order has been passed without
application of mind and without even issuing notices to the petitioner and affording any
opportunity to the petitioner of being heard. Such an order against the principles of
natural justice, as such, it cannot be sustained in law. An objection has been raised by the
respondents on the ground that since the impugned order merely remands the case back to
the Special Officer, SAR for a fresh decision on the application for restoration, it cannot
be said that the issues involved in the dispute have been finally adjudicated and as such,
this writ application is not maintainable.
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In reply, learned counsel for the petitioner submits that in view of the patent
illegality and perversity in the impugned order, this Court in exercise of its supervisory
jurisdiction can certainly interfere with the impugned order and pass appropriate orders
for correcting the illegality. I find force in the arguments advanced by the counsel for the
petitioner. The impugned order suffers from perversity, lack of application of judicial
mind by Respondent No. 2 and is against the principles of natural justice and also
amounts to abdication of his responsibility as a Revisional Court.
8. In the light of the above discussions, I find merit in this application. Accordingly,
the same is allowed. The impugned order (Annexure-4) is hereby set aside. However,
without expressing any opinion on the merits of the case, the matter is remitted back to
the Commissioner, South Chhotanagpur Division, Ranchi (Respondent No. 2) to pass a
fresh order on the revision application filed by the private respondents 5 and 6, after
giving adequate opportunity of hearing to the parties concerned.
(D.G.R. Patnaik, J)
Ranjeet/N.A.F.R.