{"id":224117,"date":"2010-02-25T00:00:00","date_gmt":"2010-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamla-kasi-jha-ors-vs-state-of-jharkhand-ors-on-25-february-2010"},"modified":"2019-01-18T20:09:53","modified_gmt":"2019-01-18T14:39:53","slug":"kamla-kasi-jha-ors-vs-state-of-jharkhand-ors-on-25-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamla-kasi-jha-ors-vs-state-of-jharkhand-ors-on-25-february-2010","title":{"rendered":"Kamla Kasi Jha & Ors. vs State Of Jharkhand & Ors. on 25 February, 2010"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Kamla Kasi Jha & Ors. vs State Of Jharkhand & Ors. on 25 February, 2010<\/div>\n
                   Writ Petition (Civil) Nos. 910, 906, 924,930 and 1413 of 2004\n                                                  ---\n<\/pre>\n
            In the matter of an application under Article 226 of the Constitution of India.\n<\/p>\n
                                                  —\n<\/p>\n
       1. Kamlakasi Jha\n<\/p>\n
       2. Rekha Jha\n<\/p>\n
       3. Rajiv Lochan Jha (WPC 910\/04)<\/p>\n
       Rajeev Jha (WPC 906\/04)<\/p>\n
       1. Ajay Singh\n<\/p>\n
       2. Sanjay Singh (WPC 924\/04)<\/p>\n
       1.   Mrs. Rama Jha\n<\/p>\n
       2.   Veena Jha\n<\/p>\n
       3.   Poonam Jha\n<\/p>\n
       4.   Rajeev Jha (WPC 930\/04)<\/p>\n
       Ashok Marwaha (WPC 141304)              —    —       —    —     —     Petitioners
\n                                               Versus\n<\/p>\n
       1. The State of Jharkhand\n<\/p>\n
       2. Commissioner, South Chhotanagpur Division, Ranchi\n<\/p>\n
       3. Deputy Commissioner, Ranchi\n<\/p>\n
       4. Special Officer, Scheduled Area Regulation, Ranchi\n<\/p>\n
       5. Tajo Mundain
\n       5(a) Chintu Munda
\n       5(b) Sancho Mundain\n<\/p>\n
       6. Kaleshwar Munda\n<\/p>\n
       7. (a)Somari Mundain
\n        7(b) Suraj Munda (all writ applications) — —     —-    —-    Respondents\n<\/p>\n
                                                —\n<\/p>\n
       For the Petitioners (WPC 910,906,924 & 930\/04): Mr. Devi Prasad, Sr. Advocate and
\n                                                          Mr. Sudarshan Shrivastava, Advocate
\n       For the Petitioners (WPC 1413\/04):                 Mr. Ayush Aditya, Advocate
\n       For the Respondent State:                          Mr. L.K. Lall, SC (L&C)
\n       For the Respondents 5 to 7:                        Mr. Dilip Kumar Prasad and
\n                                                          Mr. Ram, Prakash Singh, Advocate\n<\/p>\n
                                                —\n<\/p>\n
                                       CAV JUDGMENT\n<\/p>\n
                                                —\n<\/p>\n
       Reserved on: 18. 02.2010                                 Pronounced On: 25.02.2010\n<\/p>\n
                                                —\n<\/p>\n
                                            PRESENT
\n                          HON’BLE MR. JUSTICE D.G.R. PATNAIK\n<\/p>\n
                                              ——\n<\/p>\n
D.G.R. Patnaik, J:     Since the issues involved in these writ applications are identical, they are
\n       taken up together for disposal by this common order.\n<\/p>\n
       2.               These writ applications arise out of the common order dated 30.10.1996
\n       passed by the Appellate Authority in the individual SAR Appeals, allowing the appeals
\n       filed by the private respondents, directing restoration of the lands, under section 71A of
\n       the CNT Act, in respect of the three appellants namely, the appellants \/ petitioners of
\n       WPC Nos. 910\/04, 906\/04 and 930\/04. In the remaining two appeals while allowing the
\n       appeals of the private respondents, the Appellate Authority had directed for assessment of
\n       compensation to be paid as per proviso to Section 71A of the Act.\n<\/p>\n
                        It may be mentioned that by the interim order dated 26.02.2004 passed in
\n       these writ applications, the operation of the impugned orders have been stayed.\n<\/p>\n
 3.           Heard Learned counsel for the parties including the counsel for the private
\nrespondents.\n<\/p>\n
4.           From the rival submissions of the learned counsel for the parties, the
\nadmitted facts which emerge are, as follows:-\n<\/p>\n
               The lands in dispute in the present writ applications, are the lands
\npertaining to plot nos. 648 and 655 under Khata no. 25 situated at village Kathargonda,
\nP.S. Gonda Town, District- Ranchi.\n<\/p>\n
               In the Revisional Survey Record of right, these lands were recorded in the
\nname of Jhubla Munda, son of Kolha Munda who was in possession of the lands.\n<\/p>\n
               By virtue of a Registered Deed of Mokrari Settlement dated 25.11.1940,
\nthe then landlord transferred the permanent heritable and transferable Mokarari
\nsettlement and tenure interest of the various lands of the village of village Kathar,
\nincluding the disputed lands, in favour of one Smt. Saudamani Devi.\n<\/p>\n
               Later, the recorded raiyat Jhubla Munda applied for and obtained
\npermission from the settlee Saudamani Devi for grant of Chapperbandi right over the
\nlands in her possession. The permission was granted by virtue of the Registered Deed of
\nChhapperbandi lease dated 2.1.1953.\n<\/p>\n
               After having obtained permission for converting the lands into
\nChhaparbandi, Jhubla Munda sold 0.96 acres of R.S. Plot No. 648 and 0.96 acres of lands
\nof R.S. Plot No. 655 in favour of one Jay Kishore Nath Sahadeo by virtue of a registered
\nsale deed dated 3.1.1953. The purchaser Jai kishore Nath Sahadeo, after coming into the
\npossession of the lands, had constructed a boundary wall around the purchased lands and
\nhad also raised substantial structure thereon.\n<\/p>\n
               Later, the purchaser Jai Kishore Nath Sahadeo sold portions of the
\npurchased lands which he had purchased, to several prospective purchasers by virtue of
\nseparate sale deeds executed on different dates. The petitioners are some of such
\npurchasers who have purchased the lands in dispute in the present cases and since after
\nthe date of purchase, their names have been mutated in the Revenue Records of the State
\nGovernment and they are paying rents. The petitioners have also constructed \/ renovated
\nthe old structures as per the plan sanctioned and approved by the Ranchi Improvement
\nTrust \/ Ranchi Regional Development Authority and have been coming in occupation and
\npossession of the lands and the houses along with the members of their respective
\nfamilies. Their names have also been mutated in the Ranchi Municipal Corporation and
\nthey have been paying rents regularly.\n<\/p>\n
5.             Much later, in the year 1995, separate restoration applications were filed
\nby the private respondents 5, 6 and 7 under section 71A of the CNT Act, before the
\nSpecial Officer, Ranchi, claiming restoration of the disputed lands from the present writ
\npetitioners.\n<\/p>\n
               The Restoration applications were however rejected by the Special Officer
\nby a common order dated 18.3.1996.\n<\/p>\n
6.             Against the order of rejection of their applications, the aggrieved private
\nrespondents filed separate appeals before the Deputy Commissioner, Ranchi.\n<\/p>\n
                By the impugned order 30.10.1996, the appeals were allowed, setting
\naside the order of the Special Officer and in the cases of three of the present writ
\npetitioners mentioned herein-above, a direction was given for restoration of the lands to
\nthe private respondents and in the remaining two appeals, an order was passed directing
\nthe concerned authority to assess the compensation payable to the private respondents.\n<\/p>\n
               Against the impugned order of the Appellate Authority, the present writ
\npetitioners preferred revision applications before the Commissioner, who by the
\nimpugned orders dated 3.9.2002 and 2.12.2003, dismissed the revision applications
\naffirming thereby the impugned order of the Appellate Authority.\n<\/p>\n
7.             The petitioners have assailed the impugned orders of the Appellate
\nAuthority and that of the Revisional Authority, inter-alia, on the follow grounds:\n<\/p>\n
                      i.      In view of the fact that the nature of the land was converted
\n                              into Chhapparbandi, the provisions of Section 71A of the
\n                              CNT Act have no application at all and no order for
\n                              restoration of the lands or for payment of compensation
\n                              could have been passed by the Appellate Authority and on
\n                              such grounds, the impugned order is per-se, illegal and
\n                              perverse.\n<\/p><\/blockquote>\n
                      ii.     The finding of the Appellate Authority and that of the
\n                              Revisional Authority that the conversion of the lands into
\n                              Chhapparbandi was a fraud practiced by the original
\n                              purchaser in order to defeat the provisions of law, is totally
\n                              erroneous based on conjectures and surmises and against
\n                              the weight of evidence on record. The private respondents
\n                              had never pleaded that the conversion of the land into
\n                              Chhapparbandi was made by practicing fraud and therefore,
\n                              in absence of any pleadings of fraud, no such inference
\n                              could have been against the petitioners.\n<\/p><\/blockquote>\n
                      iii.    Even otherwise, the propriety of conversion of the nature of
\n                              the lands into Chhapparbandi can be questioned and
\n                              assessed only by a competent Civil Court and not by the
\n                              Appellate Authority or Revisional Authority under the Act.
\n                      iv.     The claim for restoration of the lands, as made by the
\n                              private respondents in the year 1995, is barred by the
\n                              principles of limitation.<\/p><\/blockquote>\n
       8.             Elaborating the grounds advanced, Shri Sudarshan Shrivastava,
\n       learned counsel for the petitioners would argue that admittedly, the original land
\n       holders namely, Jhubla Munda after obtaining consent from the Settlee
\n       Saudamani Devi, had changed the nature of the lands and had converted the same
\n       into Chhapparbandi by virtue of a sale deed dated 2nd January 1953. In view of the
\n       fact that the nature of the land was converted into Chhapparbandi on the request
\n       of the recorded raiyat, the provision of Section 71A of the CNT Act would not
\n apply to Chhapparbandi lands. In support of his contention, learned counsel refers
\nto and relies upon a judgment of this court passed in the case of Anupama Roy
\nvs. State of Bihar & others [2003 (3) JCR 548 ] and to another recent judgment
\nin the case of Sarmistha Sinha vs. Meera Prasad [2010 (1) JCR 130 (Jhr).\n<\/p>\n
9.             Referring to the findings recorded in the impugned orders, by the
\nconcerned authorities, Shri Shrivastava submits that the finding that the
\nconversion of the agricultural land into Chapparbandi was a fraud practiced by the
\npredecessors-in-interest of the petitioners in order to defeat the provisions of law,
\nis based entirely on conjectures and surmises. Such findings could not be recorded
\nin absence of specific pleadings. Moreover, propriety of the conversion of the
\nland into chapparbandi can be questioned and assessed only by a competent court
\nof civil jurisdiction and not by way of summary inquiry under section 71A of the
\nCNT Act. Learned counsel argues further that even if inference of fraud is drawn,
\nit could have been drawn against the original vendor of the lands from whom the
\npresent petitioners had purchased the lands and who had come into possession of
\nthe lands way back in the year 1953. The original vendor having not been
\nimpleaded as a party in the present proceedings, the finding as recorded, is illegal
\nand violative of the provisions of natural justice.\n<\/p>\n
10.            On the issue of limitation, learned counsel explains that
\nadmittedly, the initial transfer of the land in favour of Jay Kishore Nath Sahadeo
\ntook place in the year 1953, the restoration application, if any, ought to have been
\nfiled within a reasonable period of the initial transfer. Such restoration
\napplications which were filed after 42 years in 1995, is barred by the principles of
\nlimitation and is not permissible. In support of his contention, learned counsel
\nrefers to and relies upon the judgment of the Supreme Court in the case of
\nFulchand Munda vs. State of Bihar & others [2008 (2) JCR 1 (SC) and to
\nanother judgment of the Supreme Court in the case of Jai Mangal Oraon vs.
\nMira Nayak (Smt) and others [(2000) 5 Supreme Court Cases 141.\n<\/p>\n
11.            Offering hot contest to the grounds advanced by the petitioners, the
\nprivate respondents have filed their counter-affidavit denying and disputing the
\nclaim of the petitioners in each of these writ applications.\n<\/p>\n
12.            Countering the first ground of the petitioners regarding non-
\napplicability of section 71A of the CNT Act to the Chhapparbandi land, Shri Dilip
\nKumar Prasad, learned counsel for the private respondents, argues that there is no
\nprovision in the whole of the CNT Act laying down a procedure for conversion of
\nthe agricultural land into non-agricultural land. The use of the word
\n‘Chapparbandi’, according to the learned counsel, was made for the first time in
\nthe report submitted by William Taylor in the year 1926-27 which denotes the
\nhouse tax as Chapparbandi Tax.\n<\/p>\n
               This argument of the learned counsel does not lead to any
\nconclusion. The term ‘Chapparbandi’ as is construed, relates to a land whose
\nnature has been changed from agricultural land to non-agricultural purposes so
\n that it can be used for residence and for purposes unconnected with agricultural
\noperation. The use of word ‘Chhaparbandi’ to describe any particular land is
\nrelevant in the context of the fact that the provisions of section 71A of the CNT
\nAct, would apply only in the case of agricultural land and not to the lands whose
\nnature has been converted from an agricultural to non agricultural land and used
\nfor the purpose unconnected with the agricultural operations.\n<\/p>\n
13.            The next argument of the learned counsel is that the purported
\nChhapparbandi deed was executed on 2.1.1953. The recitals in the deed declares
\nthat the purpose for seeking conversion was to construct a house, lay out gardens
\nand excavate a well, etc. But the conduct of the permission seeker betrays that the
\npurpose for which the conversion was sought, was in fact other than declared.
\nThis is evident from the fact that on the very next day i.e. on 3.1.1953, the land
\nwas sold to Jay Kishore Nath Sahadeo. Such method was adopted by the
\npurchaser apparently for the purpose of allegedly acquiring the land by defeating
\nthe provision of law since the original Settlee Saudamani Devi could not possibly
\nget the land surrendered by the original raiyat Jhubla Munda in between the year
\n1940 to 2nd January 1953. Learned counsel explains that it is these conspicuous
\nfacts, as appearing from the records, that has led to a definite conclusive inference
\nthat a fraud was practiced to defeat the provisions of CNT Act and to avoid the
\nmischief of the provisions of section 71A of the CNT Act. Learned counsel argues
\nfurther that under the provisions of Bihar Land Reforms Act, 1950, the ex-
\nintermediary interest of Ratugarh Estate stood vested in the State Government by
\nnotification dated 19.11.1951 and as such, Saudamani Devi had no authority to
\ngrant or accord any permission to the recorded raiayat for conversion of
\nChapparbandi right and as such, the purported conversion deed dated 2.1.1953 has
\nno legal significance.\n<\/p>\n
14.            It appears from perusal of the impugned order of the Appellate
\nAuthority, that these are the very aspects which the Appellate Authority has
\nconsidered to draw his inference that the conversion deed was a fraud practiced
\nby the concerned parties and the same cannot obtain any legal recognition.\n<\/p>\n
15.            I find force in the argument advanced by the learned counsel for
\nthe respondents. Even though, a prior permission was obtained and
\nChhapparbandi deed was executed on 2.1.1953, but there was no actual
\nconversion of the nature of the land from agricultural to residential by the date
\nwhen the land was sold i.e 3.1.1953. The fact that the nature of the land was not
\nactually converted into Chapparbandi, is a legitimate and reasonable inference
\nobtained from the very documents on which the petitioners have relied. The mere
\nmentioning of the word ‘Chapparbandi’ in the sale deed, in itself, would not be
\nsufficient to make the provisions of section 71A of the CNT Act as not applicable.
\nIn this context, one may refer to the judgment of a Bench of this Court in the case
\nof Abhay Singh Surana vs. The State of Jharkhand & others [2007 (3) JLJR\n<\/p>\n
66. In this view of the matter, the petitioners cannot gainfully argue that on the
\n date of execution of the sale deed in favour of the original vendor of the
\npetitioners i.e. on 3.1.1953, the disputed lands were Chhapparbandi lands and
\ntherefore, the provisions of Section 71A of the CNT Act would not apply. The
\njudgments cited by the learned counsel for the petitioners would be of no help
\nsince the facts in the judgment referred to, stands on a different footing. There
\nwas no dispute to the fact that the nature of the disputed lands in the said cases
\nhad undergone change from agricultural to non-agricultural lands.\n<\/p>\n
16.            As regards the ground of limitation, Shri Dilip Kumar Prasad,
\nlearned counsel for the private respondents would argue that under Section 71A of
\nthe CNT Act, no period of limitation has been stipulated. On the contrary, under
\nthe provisions of section 71A of the CNT Act, the Deputy Commissioner is vested
\nwith the powers to restore the raiyati lands of members of the Scheduled Tribes if
\nit is pointed out that the transfer of such land from tribal to non-tribal was made in
\ncontravention of the provisions of section 46 of the Act.\n<\/p>\n
               Learned counsel argues further that even otherwise, no limitation
\ncan be attracted in the case of the petitioners of W.P.(C) Nos. 910\/04, 906\/04 and
\n930\/04 as because, the predecessor in interest of the contesting respondents have
\nbeen dispossessed after 1982 when the sale deeds were executed in favour of the
\npetitioners of the aforesaid writ applications. The contesting respondents in the
\nremaining two writ applications were dispossessed in the year 1970. In support of
\nhis argument, learned counsel refers to the correction slip issued in favour of the
\ndescendants of the recorded raiyat Jhubla Munda confirming thereby that such
\ndescendants were found in actual possession of the lands sought to be restored.
\nLearned counsel also refers to the compensation which was purportedly paid to
\nthe contesting respondents for the acquisition of the lands pertaining to Khata No.
\n25 acquired by the Government for construction of Ranchi Reservoir in between
\n1962-1966.\n<\/p>\n
17.            The issue as to whether the principle of limitation would apply to a
\nclaim for restoration of the lands under section 71A of the CNT Act, has by now
\nbeen settled by judgments of the Supreme Court.\n<\/p>\n
               In the case of Jai Mangal Oraon (Supra), while explaining the
\nscope of the provisions of section 71A of the Act, 1908, in the context of
\napplication of law of limitation, the Supreme Court has observed as follows:\n<\/p>\n
                                 “Merely because Section 71A commences with
\n                                 the words “if at any time” ……………..” it
\n                                 cannot be taken to mean that those powers could
\n                                 be exercised without any point of time limit, as in
\n                                 this case after nearly about forty years, unmindful
\n                                 of the rights of the parties which they acquired in
\n                                 the meantime under the ordinary law and the law
\n                                 of limitation.”\n<\/p><\/blockquote>\n
                             Relying upon the ratio in the judgment in the case of Jaimangal
\n             Uraon (Supra), the Supreme Court has reiterated the same observation in the
\n             case of Situ Sahu and others vs. State of Jharkhand [2004 (4) JLJR 109 (SC)
\n             and subsequently in the case of Phulchand Munda (Supra).\n<\/p><\/blockquote>\n
             18.            It cannot therefore be argued that the principles of the law of
\n             limitation would not apply in case of an application seeking restoration of the land
\n             under section 71A of the C.N.T. Act.\n<\/p><\/blockquote>\n
             19.            In the instant case, even though, the respondents may argue that
\n             the transfer of the land by the original recorded raiyat in favour of Jay Kishore
\n             Nath Sahadeo was in contravention of the provisions of section 71A of the CNT
\n             Act, but the fact remains that such transfer and delivery of possession of the land
\n             in favour of the purchaser was made way back in 1953. The evidences also
\n             confirm that upon acquiring the land by virtue of such purchase, the original
\n             purchaser had not only taken the possession and had occupied the same but had
\n             also erected boundary walls and structures over the land to confirm his
\n             possession. These facts would amply indicate that the original raiyat was
\n             dispossessed on and from the date of transfer of the land in favour of JaiyKishore
\n             Nath Sahadeo in 1953. Admittedly, restoration applications were filed by the
\n             private respondents against the present petitioners in 1995 i.e. after lapse of 42
\n             years. Applying the ratio decided by the Supreme Court in the aforementioned
\n             cases, the law of limitation would certainly apply and therefore the claim of the
\n             private respondents for restoration of the lands cannot possibly be allowed.\n<\/p><\/blockquote>\n
             20.            It appears from the impugned orders that the Appellate Authority
\n             as also the Revisional Authority has merely adverted to the opening sentence of
\n             section 71A of the CNT Act assuming thereby that the law of limitation would not
\n             apply. Apparently, the ratio decided by the Supreme Court in the above noted
\n             judgements in the context of the application of law of limitation, have not been
\n             adverted to.\n<\/p><\/blockquote>\n
             21.            In the light of the facts and circumstances of the case and the
\n             discussions made above, I find merit in these applications. The impugned order
\n             dated 30.10.1996 passed by the Appellate Authority in each of the S.A.R. Appeals
\n             and the impugned order dated 02.12.2003 passed by the Revisional Authority, in
\n             each of the Revision Applications, relating to the individual petitioners herein, are
\n             hereby quashed. These writ applications are accordingly allowed, but in the facts
\n             and circumstances, without any order for cost.<\/p><\/blockquote>\n
                                                                         (D.G.R. Patnaik, J)
\nJharkhand High Court, Ranchi
\nDated 25th February 2010
\nRanjeet\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Kamla Kasi Jha & Ors. vs State Of Jharkhand & Ors. on 25 February, 2010 Writ Petition (Civil) Nos. 910, 906, 924,930 and 1413 of 2004 — In the matter of an application under Article 226 of the Constitution of India. — 1. Kamlakasi Jha 2. Rekha Jha 3. Rajiv Lochan Jha […]<\/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-224117","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nKamla Kasi Jha & Ors. vs State Of Jharkhand & Ors. on 25 February, 2010 - 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\/kamla-kasi-jha-ors-vs-state-of-jharkhand-ors-on-25-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kamla Kasi Jha & Ors. vs State Of Jharkhand & Ors. on 25 February, 2010 - 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