Writ Petition (Civil) Nos. 910, 906, 924,930 and 1413 of 2004
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In the matter of an application under Article 226 of the Constitution of India.
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1. Kamlakasi Jha
2. Rekha Jha
3. Rajiv Lochan Jha (WPC 910/04)
Rajeev Jha (WPC 906/04)
1. Ajay Singh
2. Sanjay Singh (WPC 924/04)
1. Mrs. Rama Jha
2. Veena Jha
3. Poonam Jha
4. Rajeev Jha (WPC 930/04)
Ashok Marwaha (WPC 141304) — — — — — Petitioners
Versus
1. The State of Jharkhand
2. Commissioner, South Chhotanagpur Division, Ranchi
3. Deputy Commissioner, Ranchi
4. Special Officer, Scheduled Area Regulation, Ranchi
5. Tajo Mundain
5(a) Chintu Munda
5(b) Sancho Mundain
6. Kaleshwar Munda
7. (a)Somari Mundain
7(b) Suraj Munda (all writ applications) — — —- —- Respondents
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For the Petitioners (WPC 910,906,924 & 930/04): Mr. Devi Prasad, Sr. Advocate and
Mr. Sudarshan Shrivastava, Advocate
For the Petitioners (WPC 1413/04): Mr. Ayush Aditya, Advocate
For the Respondent State: Mr. L.K. Lall, SC (L&C)
For the Respondents 5 to 7: Mr. Dilip Kumar Prasad and
Mr. Ram, Prakash Singh, Advocate
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CAV JUDGMENT
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Reserved on: 18. 02.2010 Pronounced On: 25.02.2010
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PRESENT
HON’BLE MR. JUSTICE D.G.R. PATNAIK
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D.G.R. Patnaik, J: Since the issues involved in these writ applications are identical, they are
taken up together for disposal by this common order.
2. These writ applications arise out of the common order dated 30.10.1996
passed by the Appellate Authority in the individual SAR Appeals, allowing the appeals
filed by the private respondents, directing restoration of the lands, under section 71A of
the CNT Act, in respect of the three appellants namely, the appellants / petitioners of
WPC Nos. 910/04, 906/04 and 930/04. In the remaining two appeals while allowing the
appeals of the private respondents, the Appellate Authority had directed for assessment of
compensation to be paid as per proviso to Section 71A of the Act.
It may be mentioned that by the interim order dated 26.02.2004 passed in
these writ applications, the operation of the impugned orders have been stayed.
3. Heard Learned counsel for the parties including the counsel for the private
respondents.
4. From the rival submissions of the learned counsel for the parties, the
admitted facts which emerge are, as follows:-
The lands in dispute in the present writ applications, are the lands
pertaining to plot nos. 648 and 655 under Khata no. 25 situated at village Kathargonda,
P.S. Gonda Town, District- Ranchi.
In the Revisional Survey Record of right, these lands were recorded in the
name of Jhubla Munda, son of Kolha Munda who was in possession of the lands.
By virtue of a Registered Deed of Mokrari Settlement dated 25.11.1940,
the then landlord transferred the permanent heritable and transferable Mokarari
settlement and tenure interest of the various lands of the village of village Kathar,
including the disputed lands, in favour of one Smt. Saudamani Devi.
Later, the recorded raiyat Jhubla Munda applied for and obtained
permission from the settlee Saudamani Devi for grant of Chapperbandi right over the
lands in her possession. The permission was granted by virtue of the Registered Deed of
Chhapperbandi lease dated 2.1.1953.
After having obtained permission for converting the lands into
Chhaparbandi, Jhubla Munda sold 0.96 acres of R.S. Plot No. 648 and 0.96 acres of lands
of R.S. Plot No. 655 in favour of one Jay Kishore Nath Sahadeo by virtue of a registered
sale deed dated 3.1.1953. The purchaser Jai kishore Nath Sahadeo, after coming into the
possession of the lands, had constructed a boundary wall around the purchased lands and
had also raised substantial structure thereon.
Later, the purchaser Jai Kishore Nath Sahadeo sold portions of the
purchased lands which he had purchased, to several prospective purchasers by virtue of
separate sale deeds executed on different dates. The petitioners are some of such
purchasers who have purchased the lands in dispute in the present cases and since after
the date of purchase, their names have been mutated in the Revenue Records of the State
Government and they are paying rents. The petitioners have also constructed / renovated
the old structures as per the plan sanctioned and approved by the Ranchi Improvement
Trust / Ranchi Regional Development Authority and have been coming in occupation and
possession of the lands and the houses along with the members of their respective
families. Their names have also been mutated in the Ranchi Municipal Corporation and
they have been paying rents regularly.
5. Much later, in the year 1995, separate restoration applications were filed
by the private respondents 5, 6 and 7 under section 71A of the CNT Act, before the
Special Officer, Ranchi, claiming restoration of the disputed lands from the present writ
petitioners.
The Restoration applications were however rejected by the Special Officer
by a common order dated 18.3.1996.
6. Against the order of rejection of their applications, the aggrieved private
respondents filed separate appeals before the Deputy Commissioner, Ranchi.
By the impugned order 30.10.1996, the appeals were allowed, setting
aside the order of the Special Officer and in the cases of three of the present writ
petitioners mentioned herein-above, a direction was given for restoration of the lands to
the private respondents and in the remaining two appeals, an order was passed directing
the concerned authority to assess the compensation payable to the private respondents.
Against the impugned order of the Appellate Authority, the present writ
petitioners preferred revision applications before the Commissioner, who by the
impugned orders dated 3.9.2002 and 2.12.2003, dismissed the revision applications
affirming thereby the impugned order of the Appellate Authority.
7. The petitioners have assailed the impugned orders of the Appellate
Authority and that of the Revisional Authority, inter-alia, on the follow grounds:
i. In view of the fact that the nature of the land was converted
into Chhapparbandi, the provisions of Section 71A of the
CNT Act have no application at all and no order for
restoration of the lands or for payment of compensation
could have been passed by the Appellate Authority and on
such grounds, the impugned order is per-se, illegal and
perverse.
ii. The finding of the Appellate Authority and that of the
Revisional Authority that the conversion of the lands into
Chhapparbandi was a fraud practiced by the original
purchaser in order to defeat the provisions of law, is totally
erroneous based on conjectures and surmises and against
the weight of evidence on record. The private respondents
had never pleaded that the conversion of the land into
Chhapparbandi was made by practicing fraud and therefore,
in absence of any pleadings of fraud, no such inference
could have been against the petitioners.
iii. Even otherwise, the propriety of conversion of the nature of
the lands into Chhapparbandi can be questioned and
assessed only by a competent Civil Court and not by the
Appellate Authority or Revisional Authority under the Act.
iv. The claim for restoration of the lands, as made by the
private respondents in the year 1995, is barred by the
principles of limitation.
8. Elaborating the grounds advanced, Shri Sudarshan Shrivastava,
learned counsel for the petitioners would argue that admittedly, the original land
holders namely, Jhubla Munda after obtaining consent from the Settlee
Saudamani Devi, had changed the nature of the lands and had converted the same
into Chhapparbandi by virtue of a sale deed dated 2nd January 1953. In view of the
fact that the nature of the land was converted into Chhapparbandi on the request
of the recorded raiyat, the provision of Section 71A of the CNT Act would not
apply to Chhapparbandi lands. In support of his contention, learned counsel refers
to and relies upon a judgment of this court passed in the case of Anupama Roy
vs. State of Bihar & others [2003 (3) JCR 548 ] and to another recent judgment
in the case of Sarmistha Sinha vs. Meera Prasad [2010 (1) JCR 130 (Jhr).
9. Referring to the findings recorded in the impugned orders, by the
concerned authorities, Shri Shrivastava submits that the finding that the
conversion of the agricultural land into Chapparbandi was a fraud practiced by the
predecessors-in-interest of the petitioners in order to defeat the provisions of law,
is based entirely on conjectures and surmises. Such findings could not be recorded
in absence of specific pleadings. Moreover, propriety of the conversion of the
land into chapparbandi can be questioned and assessed only by a competent court
of civil jurisdiction and not by way of summary inquiry under section 71A of the
CNT Act. Learned counsel argues further that even if inference of fraud is drawn,
it could have been drawn against the original vendor of the lands from whom the
present petitioners had purchased the lands and who had come into possession of
the lands way back in the year 1953. The original vendor having not been
impleaded as a party in the present proceedings, the finding as recorded, is illegal
and violative of the provisions of natural justice.
10. On the issue of limitation, learned counsel explains that
admittedly, the initial transfer of the land in favour of Jay Kishore Nath Sahadeo
took place in the year 1953, the restoration application, if any, ought to have been
filed within a reasonable period of the initial transfer. Such restoration
applications which were filed after 42 years in 1995, is barred by the principles of
limitation and is not permissible. In support of his contention, learned counsel
refers to and relies upon the judgment of the Supreme Court in the case of
Fulchand Munda vs. State of Bihar & others [2008 (2) JCR 1 (SC) and to
another judgment of the Supreme Court in the case of Jai Mangal Oraon vs.
Mira Nayak (Smt) and others [(2000) 5 Supreme Court Cases 141.
11. Offering hot contest to the grounds advanced by the petitioners, the
private respondents have filed their counter-affidavit denying and disputing the
claim of the petitioners in each of these writ applications.
12. Countering the first ground of the petitioners regarding non-
applicability of section 71A of the CNT Act to the Chhapparbandi land, Shri Dilip
Kumar Prasad, learned counsel for the private respondents, argues that there is no
provision in the whole of the CNT Act laying down a procedure for conversion of
the agricultural land into non-agricultural land. The use of the word
‘Chapparbandi’, according to the learned counsel, was made for the first time in
the report submitted by William Taylor in the year 1926-27 which denotes the
house tax as Chapparbandi Tax.
This argument of the learned counsel does not lead to any
conclusion. The term ‘Chapparbandi’ as is construed, relates to a land whose
nature has been changed from agricultural land to non-agricultural purposes so
that it can be used for residence and for purposes unconnected with agricultural
operation. The use of word ‘Chhaparbandi’ to describe any particular land is
relevant in the context of the fact that the provisions of section 71A of the CNT
Act, would apply only in the case of agricultural land and not to the lands whose
nature has been converted from an agricultural to non agricultural land and used
for the purpose unconnected with the agricultural operations.
13. The next argument of the learned counsel is that the purported
Chhapparbandi deed was executed on 2.1.1953. The recitals in the deed declares
that the purpose for seeking conversion was to construct a house, lay out gardens
and excavate a well, etc. But the conduct of the permission seeker betrays that the
purpose for which the conversion was sought, was in fact other than declared.
This is evident from the fact that on the very next day i.e. on 3.1.1953, the land
was sold to Jay Kishore Nath Sahadeo. Such method was adopted by the
purchaser apparently for the purpose of allegedly acquiring the land by defeating
the provision of law since the original Settlee Saudamani Devi could not possibly
get the land surrendered by the original raiyat Jhubla Munda in between the year
1940 to 2nd January 1953. Learned counsel explains that it is these conspicuous
facts, as appearing from the records, that has led to a definite conclusive inference
that a fraud was practiced to defeat the provisions of CNT Act and to avoid the
mischief of the provisions of section 71A of the CNT Act. Learned counsel argues
further that under the provisions of Bihar Land Reforms Act, 1950, the ex-
intermediary interest of Ratugarh Estate stood vested in the State Government by
notification dated 19.11.1951 and as such, Saudamani Devi had no authority to
grant or accord any permission to the recorded raiayat for conversion of
Chapparbandi right and as such, the purported conversion deed dated 2.1.1953 has
no legal significance.
14. It appears from perusal of the impugned order of the Appellate
Authority, that these are the very aspects which the Appellate Authority has
considered to draw his inference that the conversion deed was a fraud practiced
by the concerned parties and the same cannot obtain any legal recognition.
15. I find force in the argument advanced by the learned counsel for
the respondents. Even though, a prior permission was obtained and
Chhapparbandi deed was executed on 2.1.1953, but there was no actual
conversion of the nature of the land from agricultural to residential by the date
when the land was sold i.e 3.1.1953. The fact that the nature of the land was not
actually converted into Chapparbandi, is a legitimate and reasonable inference
obtained from the very documents on which the petitioners have relied. The mere
mentioning of the word ‘Chapparbandi’ in the sale deed, in itself, would not be
sufficient to make the provisions of section 71A of the CNT Act as not applicable.
In this context, one may refer to the judgment of a Bench of this Court in the case
of Abhay Singh Surana vs. The State of Jharkhand & others [2007 (3) JLJR
66. In this view of the matter, the petitioners cannot gainfully argue that on the
date of execution of the sale deed in favour of the original vendor of the
petitioners i.e. on 3.1.1953, the disputed lands were Chhapparbandi lands and
therefore, the provisions of Section 71A of the CNT Act would not apply. The
judgments cited by the learned counsel for the petitioners would be of no help
since the facts in the judgment referred to, stands on a different footing. There
was no dispute to the fact that the nature of the disputed lands in the said cases
had undergone change from agricultural to non-agricultural lands.
16. As regards the ground of limitation, Shri Dilip Kumar Prasad,
learned counsel for the private respondents would argue that under Section 71A of
the CNT Act, no period of limitation has been stipulated. On the contrary, under
the provisions of section 71A of the CNT Act, the Deputy Commissioner is vested
with the powers to restore the raiyati lands of members of the Scheduled Tribes if
it is pointed out that the transfer of such land from tribal to non-tribal was made in
contravention of the provisions of section 46 of the Act.
Learned counsel argues further that even otherwise, no limitation
can be attracted in the case of the petitioners of W.P.(C) Nos. 910/04, 906/04 and
930/04 as because, the predecessor in interest of the contesting respondents have
been dispossessed after 1982 when the sale deeds were executed in favour of the
petitioners of the aforesaid writ applications. The contesting respondents in the
remaining two writ applications were dispossessed in the year 1970. In support of
his argument, learned counsel refers to the correction slip issued in favour of the
descendants of the recorded raiyat Jhubla Munda confirming thereby that such
descendants were found in actual possession of the lands sought to be restored.
Learned counsel also refers to the compensation which was purportedly paid to
the contesting respondents for the acquisition of the lands pertaining to Khata No.
25 acquired by the Government for construction of Ranchi Reservoir in between
1962-1966.
17. The issue as to whether the principle of limitation would apply to a
claim for restoration of the lands under section 71A of the CNT Act, has by now
been settled by judgments of the Supreme Court.
In the case of Jai Mangal Oraon (Supra), while explaining the
scope of the provisions of section 71A of the Act, 1908, in the context of
application of law of limitation, the Supreme Court has observed as follows:
“Merely because Section 71A commences with
the words “if at any time” ……………..” it
cannot be taken to mean that those powers could
be exercised without any point of time limit, as in
this case after nearly about forty years, unmindful
of the rights of the parties which they acquired in
the meantime under the ordinary law and the law
of limitation.”
Relying upon the ratio in the judgment in the case of Jaimangal
Uraon (Supra), the Supreme Court has reiterated the same observation in the
case of Situ Sahu and others vs. State of Jharkhand [2004 (4) JLJR 109 (SC)
and subsequently in the case of Phulchand Munda (Supra).
18. It cannot therefore be argued that the principles of the law of
limitation would not apply in case of an application seeking restoration of the land
under section 71A of the C.N.T. Act.
19. In the instant case, even though, the respondents may argue that
the transfer of the land by the original recorded raiyat in favour of Jay Kishore
Nath Sahadeo was in contravention of the provisions of section 71A of the CNT
Act, but the fact remains that such transfer and delivery of possession of the land
in favour of the purchaser was made way back in 1953. The evidences also
confirm that upon acquiring the land by virtue of such purchase, the original
purchaser had not only taken the possession and had occupied the same but had
also erected boundary walls and structures over the land to confirm his
possession. These facts would amply indicate that the original raiyat was
dispossessed on and from the date of transfer of the land in favour of JaiyKishore
Nath Sahadeo in 1953. Admittedly, restoration applications were filed by the
private respondents against the present petitioners in 1995 i.e. after lapse of 42
years. Applying the ratio decided by the Supreme Court in the aforementioned
cases, the law of limitation would certainly apply and therefore the claim of the
private respondents for restoration of the lands cannot possibly be allowed.
20. It appears from the impugned orders that the Appellate Authority
as also the Revisional Authority has merely adverted to the opening sentence of
section 71A of the CNT Act assuming thereby that the law of limitation would not
apply. Apparently, the ratio decided by the Supreme Court in the above noted
judgements in the context of the application of law of limitation, have not been
adverted to.
21. In the light of the facts and circumstances of the case and the
discussions made above, I find merit in these applications. The impugned order
dated 30.10.1996 passed by the Appellate Authority in each of the S.A.R. Appeals
and the impugned order dated 02.12.2003 passed by the Revisional Authority, in
each of the Revision Applications, relating to the individual petitioners herein, are
hereby quashed. These writ applications are accordingly allowed, but in the facts
and circumstances, without any order for cost.
(D.G.R. Patnaik, J)
Jharkhand High Court, Ranchi
Dated 25th February 2010
Ranjeet/A.F.R.