{"id":197489,"date":"2009-07-17T00:00:00","date_gmt":"2009-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/janardan-prasad-ors-vs-state-of-jharkhand-ors-on-17-july-2009"},"modified":"2017-08-31T00:09:40","modified_gmt":"2017-08-30T18:39:40","slug":"janardan-prasad-ors-vs-state-of-jharkhand-ors-on-17-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/janardan-prasad-ors-vs-state-of-jharkhand-ors-on-17-july-2009","title":{"rendered":"Janardan Prasad & Ors. vs State Of Jharkhand & Ors. on 17 July, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Janardan Prasad & Ors. vs State Of Jharkhand & Ors. on 17 July, 2009<\/div>\n
              IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                             W.P ( C   ) No. 4426 of 2002\n                                      with\n                        WP(C ) Nos. 1123 and 5605 of 2003\n\nSmt Kant Devi ( WPC No. 4426 of 2002)\nJanardan Prasad & Others ( WPC No. 1123 of 2003)\nSmt Tarit Barani Devi ( WPC No. 5605\/2003) ...                  Petitioners\n\n                                     Versus\nThe State of Jharkhand & Others (in all cases ).....           Respondents\nCoram :              HON'BLE MR. JUSTICE D.G.R. PATNAIK.\nFor the petitioner(s) : M\/s B.B. Sinha, Sr. Advocate & Lily Sahay\nFor the respondents : Mr. P.P.N. Roy, Sr. Advocate.\n\nCAV On 12.5. 2009.                                 Pronounced on 17\/07\/2009\n\n                     Heard the counsel for the petitioners and the State.\n                     All these three writ petitions are directed against a\ncommon order dated 28.8.1996 passed by the appellate authority, namely\nthe respondent no. 2, in three separate appeals whereby the order dated\n10.6.1994<\/pre>\n
 passed by the Special Officer, Scheduled Area Regulation,
\nRanchi, was set aside and also against a common order dated 3.7.2002,
\npassed in the three separate revision applications, by the Commissioner,
\nSouth Chotanagpur Division, Ranchi,            confirming the order of the
\nappellate authority.\n<\/p>\n
2.                   Facts and the disputes        involved in all these writ
\npetitions are identical and relate to a land bearing plot no. 1080, Khata
\nNo.112, area 35 decimals, of village Pandra, district Ranchi, which was
\noriginally recorded as a raiyati land in the name of one Soma Oraon, in
\nthe records of right.\n<\/p>\n
3.                   The facts in common of the petitioners’ case           are as
\nfollows:\n<\/p>\n
             (i) Much prior to the coming into force of the Chotanagpur
\nTenancy Act ( Amendment Act 1947), the disputed land was acquired by
\nSukhram Prasad, father-in-law of petitioner Kanti Devi, in the year 1947
\nby way of purchase from the original recorded raiyat Soma Oraon for a
\nconsideration of Rs. 850\/- and after the purchase, he came in possession
\nthereof and continued to remain in peaceful occupation and possession of
\nthe same.\n<\/p>\n
                                      2<\/span><\/p>\n
            (ii) such acquisition and possession of the land by Sukhram
\nPrasad was confirmed in Title Suit no. 30 of 1965 and Title Suit No. 511 of
\n1967 filed by Sukhram Prasad, and the suit was decreed in favour of
\nSukhram Prasad by a compromise decree dated 26.3.1965.\n<\/p>\n
            (iii) Later, Soma Oraon, filed an application under section 71A
\nof the Chotanagpur Tenancy Act for restoration of his land vide Misc.
\nCase No. 49 of 1975. The      application was dismissed by order dated
\n15.5.1978 passed by the Special Officer, Scheduled Area Regulation, on the
\nground that the CNT Act was not applicable to the lands falling within
\nMunicipal Area. No appeal was preferred by the claimant against the
\norder of the Special Officer in SAR No. 49 of 1975.\n<\/p>\n
            (iv)   Much later, in the year 1990, one Jaipal Oraon, son of
\nthe original recorded tenant Soma Oraon, filed a fresh application No.
\nSAR No. 98 of 1990 against Sukhram Prasad under section 71A of the
\nChotanagpur Tenancy Act for restoration of the same land. In this
\napplication, the petitioners in WP[C] no. 1123 of 2003, and petitioners in
\nWP[C] no. 5605 of 2003 were also impleaded as opposite parties. The
\npetitioners Kanti Devi had also got herself impleaded as an opposite party
\nin the aforesaid restoration proceeding on the        ground that she had
\nacquired a valid right, title and interest over 11 decimals of disputed land
\nby virtue of sale deed executed in her favour in the year 27.7.1991 by
\nSukhram Prasad.\n<\/p>\n
            (v) One Kauleshwar Pd Choudhary who was one of the
\nopposite parties in the restoration case, got his case separated from the
\nothers on 1.7.1993. The Special Officer by order dated 13\/9\/1993 while
\ndisposing of the restoration application concerning the said Kauleshwar
\nPrasad Choudhary, had ordered him to pay a sum of Rs. 21,900\/- to the
\napplicant as compensation, which having been paid by him and accepted
\nby the applicant Soma Oraon, his case was closed.\n<\/p>\n
            (vi)   The case in respect of the other remaining opposite
\nparties including the present petitioners,    was also disposed of by the
\nSpecial Officer by directing them to pay compensation of specified
\namounts to the applicant. The compensation amount paid by the
\npetitioners was accepted by the applicant Jaipal Oraon and his father
\nSoma Oraon. However, Ghurta Oraon, another son of Soma Oraon who
\n                                        3<\/span><\/p>\n
was also impleaded as a co-applicant in the proceedings, did not accept
\nthe amount and challenged the order passed by         Special Officer in SAR
\nNo. 98 of 1990 in appeal.\n<\/p>\n
4.                  By the impugned appellate order dated 28.8.1996 the
\nDeputy Commissioner, Ranchi, set aside the order of Special Officer as
\npassed in SAR No. 98 of 1990 and directed the respondents in the appeal,
\nnamely the present petitioners,       to restore the land to the originally
\nrecorded tenant, namely, Soma Oraon. Being aggrieved with the order of
\nthe appellate authority, the petitioners filed separate revision applications
\nbefore the Commissioner, South Chotanagpur Ranchi.         By the impugned
\norder dated 3.7.2002,    the Revisional authority dismissed the      revision
\napplications of the petitioners.\n<\/p>\n
5.                  The grounds on which the petitioners have challenged
\nthe impugned orders of the appellate authority and of the Revisional
\nauthority in these writ petitions are as follows :\n<\/p>\n
                    (i) both the impugned orders as passed by the appellate
\nauthority and the revisional authority, are bad and the findings recorded
\ntherein are perverse and contrary to the facts and the materials on record;\n<\/p>\n
                    (ii) the restoration application filed by Jaipal orain son
\nof Soma Oraon in which his father Soma Oraon and brother Ghutra
\nOraon were impleaded as co-applicants, was barred by the principles of
\nres judiicata in view of the compromise decree passed in favour of the
\npredecessor in interest namely, Sukhram Prasad, in Title Suit No. 30 of
\n1965 and also in view of the order of dismissal of the earlier restoration
\napplication no. SAR No. 49 of 1975 which had attained finality, and an
\nextinguished claim has been sought to be revived and the petitioners are
\nbeing harassed by repetitive litigations.\n<\/p>\n
                    (iiii)The restoration application was barred by limitation
\nas the aforesaid predecessor in interest Sukhram Prasad had remained in
\npossession of the disputed land for more than 12 years since 1947 i.e. much
\nprior to the date when the Schedule Area Regulation Act, 1969, came into
\neffect. Bar of limitation also applied because of expiry of more than 30
\nyears since 1947,     prior to the date of institution of the subsequent
\nrestoration case.\n<\/p>\n
                                       4<\/span><\/p>\n
                    (iv) the land, by change in user, was no longer an
\nagricultural land and therefore the dispute under section 71A of the CNT
\nAct is not maintainable.\n<\/p>\n
                   (v) There is no pleading or proof of any fraudulent act
\neither on the part of the petitioners      or their predecessor in interest
\nSukhram Pd.\n<\/p>\n
                   (vi) In the matter of Kauleshwar Pd. Chaudhury, who is
\none of the opposite parties in SAR No. 98 of 1998, his case was separated
\nand compensation was ordered to be paid and after acceptance of the
\ncompensation amount by the applicants, his case was finally closed. But
\ncase against the petitioners is being kept alive by applicant Ghurta Oraon
\nwho did not accept the amount of compensation.\n<\/p>\n
                   (vii) Even otherwise, considering the fact that the
\npetitioners remained in adverse possession of the land for more than 30
\nyears and have constructed residential building and structures thereon,
\nthe court ought to have passed order under the third proviso to section 71
\nA of the Act.\n<\/p>\n
6                  Assailing the impugned order and elaborating each of
\nthe grounds advanced by the learned counsel for the petitioners Mr.
\nB.B.Sinha, Senior Advocate,       would argue that both the Appellate
\nAuthority and the Revisional Authority have committed serious error
\ncausing prejudice to the petitioners by failing to consider and accept that
\neven as per the admission made by the recorded tenant Soma Oraon, the
\nland was transferred in favour of Sukram Pd in the year 1947. On the date
\nof transfer the restriction in respect of transfer of tribal land did not come
\ninto force. The admission by the recorded tenant, Soma Oraon about the
\ntransfer of his land in favour of Sukhram Pd in the year 1947 was made not
\nonly in the Title Suit no. 30 of 1965 in which compromise decree was
\npassed in favour of Sukhram Prasad, but also in the subsequent restoration
\ncase no. SAR No. 49 of 1975.\n<\/p>\n
                   Learned counsel submits that in view of the above
\nadmission by the recorded tenant, the fact as stood confirmed is that
\nSukhram Praad came in possession of the disputed land in the year 1947,
\nthat is, more than 12 years prior to filing of SAR case no. 49 of 1975 and 30
\nyears prior to the date when the second restoration application was filed.\n<\/p>\n
                                         5<\/span><\/p>\n
Under such circumstances, the second           Restoration Application was
\nhopelessly barred by limitation. Placing support to his argument, learned
\ncounsel refers to and relies upon the judgment of the Supreme Court in the
\ncase of Situ Sahu Vs. State of Jharkhand ( 2004 [4] JCR 211 (SC) and in the
\ncase of Fulchand Munda Vs State of Bihar [ 2008(2) JCR 1 (SC).
\n7                  Referring to the second ground, learned counsel would
\nargue that the claim raised by the applicant in SAR case no. 49 of 1975
\nwhich was dismissed, has been sought to be revived and the petitioners
\nare being harassed by repeated litigations. Referring to the order of the
\nSpecial Officer in SAR No. 49 of 1975, learned counsel submits that the
\nSpecial Officer had recorded a finding that the provision of 71A of the
\nCNT was not applicable in respect of land which fell within the municipal
\nareas as per law at the relevant time. No appeal having been filed against
\nthe aforesaid order, the same had attained finality and could not be re-
\nagitated by the applicant.     Learned counsel argues further that even
\notherwise, the original recorded tenant Soma Oraon who had sold the land
\nto Sukhram Prasad in the year 1947 being alive,        his sons, Jaipal Oraon
\nand Ghurta Oraon, had no locus standi to file the second          restoration
\napplication. Learned counsel contends that in view of the aforesaid fact,
\nthe second restoration application was barred by the       principles   of res
\njudicata. In support of his contention learned counsel would refer to and
\nrely upon the judgment passed by this Court in the case of Gadia Oraon Vs
\nState of Jharkhand [2004(1) JCR 237 (Jhr) and to an earlier decision of this
\nCourt in the case of Md. Salimuddin Vs Commissioner, South Chotanagpur
\nDivision, Ranchi [ 1993(1) PLJR 14 ].\n<\/p>\n
8.                 Referring to the next ground, learned counsel submits
\nthat the disputed land, by change in user,         had no longer remained
\nagricultural land and as such the provisions of section 71A of the CNT Act
\nwas not applicable. The fact that           agricultural land    came to be
\nsubsequently    converted into chaparbandi land has been held in the
\nfindings recorded in SAR No. 98 of 1990 by the special officer. This fact has
\nbeen erroneously ignored by both the appellate authority and the
\nrevisional authority. To buttress his argument, learned counsel         relies
\nupon the judgment of the Patna High Court in the case of Akhileshwar Pd
\nSrivastava Vs. Commissioner, South Chotanagpur Division [ 1990 PLJR 707 ].\n<\/p>\n
                                        6<\/span><\/p>\n
                    Adding further to his arguments, learned counsel
\nsubmits that in the light of the admitted fact that the petitioners had
\nconstructed buildings and structures on the disputed land, and in the light
\nof findings of the special officer in SAR        Case No. 49 of 1975,      the
\npetitioners having remained in adverse possession of the land for more
\nthan 30 years, the provision of section 71(3) of the Act is applicable and
\nthe benefit thereof ought to have been given to the petitioners . In support
\nof his argument, learned counsel refers to and relies upon the judgment of
\nthis Court passed in Lucas Kharia Vs Baraik Bahadur Singh (2005(3) JCR 132
\n(Jhr) and also on the earlier judgment in the case of Md. Salimuddin
\n(supra).\n<\/p>\n
9                   In the counter affidavit, the respondent State has denied
\nand disputed the entire claim of the petitioners. The stand taken by the
\nrespondents is as follows :\n<\/p>\n
                    (i) In absence of any documentary evidence, the claim
\nof petitioners that the land stood transferred in the year 1947 in favour of
\nSukhram Pd cannot be tenable. Such transfer being in violation of the
\nprovisions of section 46 of the CNT Act, cannot be accepted as a valid
\ntransaction.\n<\/p>\n
                    (ii) There is no valid evidence that the petitioners or
\ntheir predecessor-in-interest, namely Sukhram Pd came in possession of
\nthe disputed land in the year 1947.\n<\/p>\n
                    (iii) The decree in Title Suit no. 65 of 1970 being a
\ncollusive decree,   the same does not create any right in favour of the
\npetitioners since it is in violation of mandatory provisions of the CNT Act.\n<\/p>\n
                    (iv) There is no proof to confirm that the raiyati land has
\nbeen converted into chaparbandi land. Even if the raiyat is authorized to
\nerect building\/house on raiyati land,       on the basis of the prevailing
\ncustoms, the respondents are not authorized to change the nature of land.\n<\/p>\n
                    (v) The order passed in SAR No. 49 of 1975 is not
\napplicable in the present case, inasmuch as the judgmnet was delivered on
\nthe basis of the existing ruling laid down by the judgment of the Patna
\nHigh Court at that time.       The ruling having undergone change, the
\nposition is now different and, as held by several judgments of the High
\nCourts, the provisions of the C.N.T Act are applicable also in respect of
\n                                          7<\/span><\/p>\n
raiyati lands which fall within municipal areas and as such, the judgment
\nin SAR No. 7 of 1975 does not create a bar against the second restoration
\napplication.\n<\/p>\n
                    (vi) The plea of petitioners that Jaipal Orain had no
\nlocus standi to file restoration case during the life time of his father Soma
\nOraon, who is the recorded tenant, is misconceived and irrelevant in view
\nof the fact that the Deputy Commissioner who is the competent authority
\nunder the Act, can proceed under the provisions of section 71A of the
\nCNT Act to restore the raiyati land\/ tribal land of the raiyat.
\n10                  Though no separate counter affidavit appears to have
\nbeen filed by the private respondents namely the widow and sons of
\nGhutra Oraon, son of Soma Oraon, but Mr. PPN Roy, learned counsel
\nrepresenting them, has contested the claim of the petitioners in these
\ncases by adopting the stand taken by the respondent State.\n<\/p>\n
                    Learned counsel would argue that the plea of the
\npetitioners that the land was acquired by virtue of sale deed executed in
\nfavour of Sukhram Pd cannot be tenable in absence of proof by way of
\nregistered sale deed. Learned counsel submits that the petitioners have
\nnot adduced reliable evidence, that they came in possession of the dispute
\nland in the 1947.\n<\/p>\n
                    Referring to the compromise decree relied upon by the
\npetitioners passed in Title Suits no. 30 of 1965 and 511 of 1967, learned
\ncounsel submits that the decrees passed in both the aforesaid suits are
\napparently collusive and even though the purported agreement between
\nthe raiyat Soma Oran and Sukhram Prasad may not be a fraud on the
\ncourt, but it certainly is a fraud against the statute since the law under the
\nCNT Act specifically prohibits transfer of tribal land in favour of a non-
\ntribal. The petitioners are therefore not entitled to take advantage of
\nsuch collusive decree in their favour.\n<\/p>\n
                    Learned counsel adds further that the applicant Ghurta
\nOraon,    son of Soma Oraon who was impleaded in the restoration
\nproceeding,    had challenged the order of the Special Officer passed in
\nrestoration application on the ground that he had not received
\ncompensation, nor did his father Soma Oraon receive any amount of
\ncompensation. In this context, relying upon the judgment in the case of
\n                                       8<\/span><\/p>\n
Mahindra Singh Vs State of Jharkhand (2008(3) JCR 449 Jhr), learned counsel
\nadds further that the petitioners’ claim of title by adverse possession for
\nmore than 30 years is also incorrect and misleading and the further claim
\nof petitioners that they had constructed building and structures over the
\nland much prior to 1969 is also incorrect and misleading and the same
\ncannot be accepted in absence of any cogent and reliable evidence.\n<\/p>\n
                    Learned counsel adds further that in the light of the
\ncategorical admission of the respondent Ghurta Oraon that he has not
\nbeen paid any compensation whatsoever by the petitioners,         it clearly
\nindicates that the petitioners had practised fraud upon the respondent
\nGhurta Oraon.\n<\/p>\n
11                  As stated above, the main grounds of the petitioners on
\nwhich the impugned order has been assailed is that the vendor of the
\npetitioners namely Sukhram Prasad had purchased the disputed land from
\nthe original recorded tenant raiyat Soma Oraon in the year 1947 and at that
\ntime, the rigors of the provisions of section 46 was not introduced in the
\nChotanagpr Tenancy Act. The petitioners have wanted to confirm the
\npurported acquiring of the land by relying upon the compromise decree
\npassed in the Title Suit.\n<\/p>\n
12                  As it appears from the facts admitted by the petitioners
\nthemselves, no document of transfer          was produced     either by the
\npetitioners or their vendor, to confirm that the land was transferred by
\nway of sale to Sukhram Prasad. If, according to the petitioners, the land
\nstood legally transferred from the original recorded raiyat to Sukhram
\nPrasad, then there could be no occasion for Sukhram Prasad to file the title
\nSuit in the year 1963 against the raiyat and to obtain a compromise decree.
\nThe fact that the original raiyat namely Soma Oraon had filed a petition
\nunder section 71A      of the Chotanagpur Tenancy Act in the year 1975
\nbefore the appropriate authority for restoration of his land,        amply
\nindicates that Soma Oraon had not accepted to have transferred his land
\nin favour of Sukhram Prasad. These facts suggest that the claim of the
\npetitioners that the land stood transferred in favour of their vendor
\nSukhram Prasad in the year 1947,          has not been substantiated by any
\nlegally tenable evidence. On the      contrary, the facts indicate that the
\nalleged transfer even if made was in violation of the provisions of section
\n                                       9<\/span><\/p>\n
46 of the C.N.T. Act, and in such view of the matter, the compromise
\ndecree passed in the title suit would amount to a fraud upon the Statute
\nitself and cannot create any right in favour of the petitioners or their
\nvendor Sukhram Prasad.\n<\/p>\n
13.                 The petitioners’ next claim is that after dismissal of the
\nfirst restoration application filed by the recorded tenant in 1975, the second
\nrestoration application in which the impugned orders were ultimately
\npassed,   is barred by the principles of res judicata. This ground is
\napparently misconceived.       The dismissal of the earlier        restoration
\napplication was not on consideration of the merits of the claim, but was
\nsolely on the ground that since the disputed land fell within the municipal
\narea, the provisions of the CNT Act being not applicable to such lands, the
\napplication for restoration was not maintainable. By a subsequent
\nAmendment in the corresponding Act, the land belonging to the members
\nof the Scheduled Tribes falling within Municipal area, was also included
\nand the provision of sections 71 and 71A of the Act applied in equal
\nmeasure also to the lands falling within municipal area.         Under such
\ncircumstances, the order passed in the claim of the original tenant for
\nrestoration of his lands made in the year 1992, cannot be said to be barred
\nby the principles of res judicata.\n<\/p>\n
14                  The next ground advanced by the petitioners is that the
\nrestoration application is bared by limitation in as much as, it was filed
\nmore than 30 years from the date of dispossession of the raiyat.\n<\/p>\n
                    From the facts as it would appear, the petitioners have
\nnot been able to bring any convincing evidence on record to confirm that
\nthe petitioners’   vendor,    namely Sukhram Prasad,       had acquired the
\ndisputed land and had come in possession and occupation of the same in
\nthe year 1947. It was for the first time when the title suit was filed by
\nSukhram Prasad in 1963 and in which compromise decree was obtained in
\n1967, that evidences were sought to be introduced that Sukhram Prasad
\nhad come in occupation of the disputed land and had also constructed his
\ndwelling house thereon in the year 1964. Thus, even though the
\ncompromise decree in the Title Suit does not create any right in favour of
\nthe purported purchaser Sukhram Prasad, but an inference may, at best,
\nbe drawn from the admission made by the petitioners themselves in the
\n                                       10<\/span><\/p>\n
restoration proceedings before the Special Officer,      that they came in
\nabsolute possession of the disputed land only after the compromise decree
\nwas passed in the title suit in the year 1967 and they had constructed their
\nrespective dwelling houses thereon. These observations were made by the
\nSpecial Officer in the restoration proceeding filed by Jaipal Oraon, son of
\nSoma Oraon in the year 1990. Since apparently, the restoration application
\nfiled by Jaipal Oraon in the year 1990 was well within the period of 30
\nyears from the date on which the petitioners came in absolute possession
\nof the disputed land, the Special Officer had rightly rejected the
\npetitioner’s claim of the restoration proceeding being barred by limitation.\n<\/p>\n
15.                The next ground advanced by the petitioners is that
\nsince after the petitioners   came in occupation of the disputed land, they
\nhad constructed their dwelling houses thereon after incurring expenditure
\nof more than Rs. 10,000\/- and therefore the petitioners are entitled to the
\nbenefit of the proviso to section 71A of the CNT Act. The contention of the
\npetitioners is that such benefit in respect of a portion of the same plot of
\nland was extended in favour of Kauleshwar Pd Choudhary and the same
\nwas accepted by the applicants. The petitioners standing on the same
\nfooting cannot be discriminated.\n<\/p>\n
16.                From perusal of the order passed by the Special Officer
\nin the restoration application, it appears that pleadings and evidence was
\nadduced in the proceedings by the parties which were accepted and relied
\nupon by the Special Officer to the effect that since the land was situated by
\nthe side of Ranchi Daltonganj Road, the villagers had converted part of
\nthe land for use as access road and in the remaining portion of the land,
\nthe dwelling house of Sukhram Prasad and that of the petitioners existed
\nand as such the nature of the land did not remain as agricultural land any
\nmore. Evidence was also adduced by and on behalf of the petitioners that
\nthey had constructed their respective dwelling houses on their individual
\nportions of the disputed land much prior to the year 1969. These facts do
\nnot appear to have been denied or disputed by the applicants in the
\nrestoration proceedings. On considering all these aspects, the Special
\nOfficer had, by extending the benefit of the second proviso to section 71A
\nof the Act, had directed the petitioners either to give the same area of
\nland of equal value to the applicant or to pay compensation @ Rs. 7,000\/-\n<\/p>\n
                                       11<\/span><\/p>\n
per katha to the applicant. It also appears that an identical order was
\npassed separately in favour of Kaulsehswar Pd. Choudhury in respect of
\na portion of land within the same plot and the amount of compensation as
\nordered,     was paid by the said Kauleshwar Pd. Choudhury and was
\nreceived by Soma Oraon, father of Jaipal Oraon. It may be noted that
\nthough the restoration application was filed by Jaipal Oraon, son of the
\noriginally   recorded tenant Soma Oraon, but later on, Soma Oraon’ s
\nsecond son     Ghurta Oraon was allowed to be impleaded as a party
\nintervener. No attempt by the applicant Jaipal Oraon or his brother Ghurta
\nOraon was made to implead their father in the restoration proceedings .\n<\/p>\n
                   It also appears that while neither Soma Oraon or his
\nsons including    the appellant Ghurta Oraon,        raised any dispute or
\ngrievance against the order passed by the Special Officer in the restoration
\napplication filed against the said Kauleshwar Pd Chaudhury and had
\neven accepted the compensation amount, yet Ghurta Oraon, being not
\nsatisfied, had filed appeal against the order of the Special Officer passed in
\nthe restoration proceeding.\n<\/p>\n
17.                From perusal of the impugned appellate order, it
\nappears that the grievance of the appellant Ghurta Oraon against the order
\nof the Special Officer passed in the restoration application,          is his
\ndissatisfaction over the amount of compensation and also on the ground
\nthat the petitioners have not paid the amount of compensation at all. It also
\nappears that a petition purportedly containing the LTI of Soma Oraon
\nalong with his affidavit was filed in the proceedings before the appellate
\nauthority, stating that Soma Oraon has not received any compensation
\namount from the petitioners.\n<\/p>\n
18.                The principles of law relating to the claim             for
\nrestoration of the land belonging to the member of a Scheduled Tribe is
\nclear and specific and the Deputy Commissioner under section 71 of the
\nAct has the power to evict the transferee from the land if he finds that the
\ntransfer has taken place in contravention of section 46 Act, or any other
\nprovision of the Act, or by fraudulent method and such power can be
\nexercised by him at any time. However,the second proviso to section 71 A
\nof the Act is equally relevant and cannot be ignored. The second proviso
\nto section 71A of the Act reads as follows :\n<\/p>\n
                                       12<\/span><\/p>\n
                 Section 71A. Power to restore possession to member of
\nthe Scheduled Tribes over land unlawfully transferred :\n<\/p>\n
                              Xxx                                xxxx\n                                Xxx                                        xxxx\n<\/pre>\n
                    “Provided further that where the Deputy Commissioner is
\n            satisfied that the transferee has constructed a substantial structure
\n            or building on such holding or portion thereof before coming into
\n            force of the Bihar Scheduled Areas Regulation, 1969, he may,
\n            notwithstanding any other provisions of the Act, validate such
\n            transfer where the transferee either makes available to the transferor
\n            an alternative holding or portion thereof as the case may be, of the
\n            equivalent value of the vicinity or pays adequate compensation to be
\n            determined by the Commissioner for rehabilitation of the transferor.”\n<\/p>\n
                              Xxx                                           xxxx<\/p>\n
19.               It appears that the claim of the petitioners that they
\nhad constructed their dwelling houses over the disputed land much prior
\nto the year 1969 and the supporting evidence adduced in this regard was
\naccepted by the Special Officer in absence of any denial by the applicants,
\nthe same has been brushed aside by the appellate authority on the ground
\nthat the petitioners did not adduce satisfactory evidence to confirm that
\nthey had constructed their dwelling houses after incurring expenditure of
\nmore than Rs. 10,000\/- prior to the year 1969 and that even otherwise, the
\nvery transfer of the land being against the provisions of law, the
\npetitioners could not have converted the agricultural lands into dwelling
\nhouses.\n<\/p>\n
                  As observed above, it is not a case where the petitioners
\nhave not adduced any evidence whatsoever in support of their claim that
\nthey had constructed their dwelling houses over the disputed land much
\nprior to the year 1969. The order of the Special Officer categorically
\nindicates that the claim of the petitioners that the nature of the land was
\naltered even by the villagers for the purpose of using portion of the same
\nas an access road and the fact that the petitioners had established their
\ndwelling houses on the remaining portion of the land was not denied and
\ndisputed by the applicants. It      also appears      that an identical claim
\nadvanced by the said Kauleshwar Pd. Choudhury having established his
\ndwelling house prior to the year 1969, was accepted by the original
\nraiyat\/applicant Soma Oraon and his sons including the appellant Ghurta
\nOraon and they had even accepted the awarded compensation amount
\nfrom him. Having accepted such compensation the benefit of the second
\n                                      13<\/span><\/p>\n
proviso to section 71A of the Act was extended to said K.P. Choudhury
\nwithout any dispute and no further grievance has been raised against
\nhim either by Soma Oraon or his sons. It also appears that the main
\ngrievance of the appellant Ghurta Oraon was on account of his
\ndissatisfaction over the compensation amount awarded by the special
\nofficer and also his contention that even the compensation amount was not
\npaid to him.   The appellate authority, as would be       evident from the
\nimpugned appellate order, does not appear to have adverted to the above
\naspects as appearing in the evidence in the restoration proceedings, nor
\nhas recorded any reason as to why the          petitioners should be treated
\ndifferently from the said K.P. Choudhury who is admittedly in occupation
\nof a portion of the same disputed land.\n<\/p>\n
20.                The petitioners have rightly claimed that in the matter
\nof application of the second proviso to section 71A of the Act, they have
\nbeen discriminated and this has perpetrated injustice to them. In this view
\nof the matter, there is reason to infer that while passing the impugned
\norder, the appellate authority did not apply his judicial mind to the
\nevidences on record, and therefore, it is manifest that the findings recorded
\nin the impugned order, is perverse and fit to be set aside. It also appears
\nthat the revisional authority has also not adverted to above aspects
\nappearing in the evidences in the restoration proceedings and has merely
\nadopted the impugned order of the appellate authority.
\n21                 For the reasons aforesaid, these writ petitions are
\nallowed and the impugned orders passed by the appellate authority and
\nthe revisional authority are hereby quashed.\n<\/p>\n
                   The matter is remitted back to the appellate authority to
\nrecord a fresh finding by passing a reasoned and speaking order within
\nfour months from the date of receipt\/production of a copy of this order,
\nafter considering the entire evidences and materials on record in the
\nrestoration proceedings.\n<\/p>\n
Ambastha\/                                           (D.G.R. Patnaik,J)\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Janardan Prasad & Ors. vs State Of Jharkhand & Ors. on 17 July, 2009 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P ( C ) No. 4426 of 2002 with WP(C ) Nos. 1123 and 5605 of 2003 Smt Kant Devi ( WPC No. 4426 of 2002) Janardan Prasad & Others […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-197489","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nJanardan Prasad & Ors. vs State Of Jharkhand & Ors. on 17 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/janardan-prasad-ors-vs-state-of-jharkhand-ors-on-17-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Janardan Prasad & Ors. vs State Of Jharkhand & Ors. on 17 July, 2009 - 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