{"id":42439,"date":"2004-09-10T00:00:00","date_gmt":"2004-09-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/situ-sahu-and-others-vs-the-state-of-jharkhand-and-others-on-10-september-2004"},"modified":"2016-02-02T14:21:46","modified_gmt":"2016-02-02T08:51:46","slug":"situ-sahu-and-others-vs-the-state-of-jharkhand-and-others-on-10-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/situ-sahu-and-others-vs-the-state-of-jharkhand-and-others-on-10-september-2004","title":{"rendered":"Situ Sahu And Others vs The State Of Jharkhand And Others on 10 September, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Situ Sahu And Others vs The State Of Jharkhand And Others on 10 September, 2004<\/div>\n
Author: Srikrishna<\/div>\n
Bench: Shivaraj V. Patil, B.N. Srikrishna<\/div>\n
           CASE NO.:\nAppeal (civil)  2414-15 of 1999\n\nPETITIONER:\nSitu Sahu and Others\t\t\t\t\t      \n\nRESPONDENT:\nThe State of Jharkhand and others \t\t               \n\nDATE OF JUDGMENT: 10\/09\/2004\n\nBENCH:\nShivaraj V. Patil & B.N. Srikrishna\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Srikrishna, J.\n<\/p>\n
\tThese appeals, by special leave  call into  question the judgment
\nof the Division Bench of the Patna High Court dismissing the writ
\napplication of the appellants.\n<\/p>\n
\tIn the area to which the Chota Nagpur Tenancy Act, 1908
\n(hereinafter referred to as ‘the Act’) applied, certain lands were
\noriginally recorded in the names of Kochya Oraon, Bachua Oraon and
\nJagna Oraon, ancestors of one  Goinda Oraon.  They were the
\nrecorded tenants of land in Khata no.13 of village  Chhotanagpur.
\nJagna Oraon died immediately after the revisional survey.  Kochya
\nand Bachua surrendered the tenancy pertaining to plot nos. 588, 1883,
\n1884 and 1885 in Khata no.13 admeasuring 2.65 acres of the land to
\nthe landlord, the Maharaja of Chhotanagpur by a registered deed
\ndated 7.2.1938.  Soon thereafter, the landlord settled the land on the
\nappellants on 25.2.1938. The appellants  have been in possession of
\nthe land and cultivating it.\n<\/p>\n
On 3.2.1978 the said Goinda Oraon  filed an application under
\nsection 71A of the Act for restoration of the land in question on the
\nground that the appellants had fraudulently  acquired the land by
\nmeans of a ‘sada hukumnama’.  This application was registered as
\nS.A.R.  Case No. 415\/77-78.  The Special Officer, Ranchi issued
\nnotices to the appellants and, after hearing the parties and recording
\nevidence, came to the conclusion that the land belonged to the
\nancestors of Goinda,  who were members of  scheduled tribes and
\nkhatiyani  holders of the land in question.  Although, originally there
\nwere four co-sharers in the land, namely, Kochya Oraon, Bachua
\nOraon, Jagna Oraon and Goinda Oraon, the tenancies were
\nsurrendered only by Kochya and Bachua and not by the other two.
\nThe surrender was made on 7.3.1938 and the settlement in favour of
\nthe appellants was made on 25.3.1938.  The Special Officer took the
\nview that the surrender and the settlement of the land constituted one
\ncontinuing act and was, therefore, contrary to the provisions of the
\nAct.  He also held that the surrender was illegal as all the shareholders
\nhad not surrendered their rights and decided that by reason of the
\nprovisions of Section 71A  of the Act the tribals could not have been
\ndispossessed  from the aforesaid land.  In this view of the matter, he
\nallowed the application for restoration of possession to the applicant
\nGoinda Oroan by an order made on 9.5.1980.  The appellant appealed
\nto the Additional Collector, Ranchi who affirmed the view of the
\nSpecial Officer.\tA revision petition was also dismissed by the
\nCommissioner  upholding the views of the two authorities below.\n<\/p>\n
\tThe appellants challenged the order of the Revenue Authorities
\nby a writ petition before the Patna High Court.  The High Court
\ndismissed the writ petition  holding that section 71A of the Act is a
\nbeneficial legislation and the legislative intent is to extend protection
\nto a class of citizens who were unable to protect their properties on
\naccount of backwardness, and, therefore, the Court had to give a broad
\nand liberal construction to the legislative intent of protection.  The
\nHigh Court  agreed with the authorities  below that the surrender of
\nthe tenancy and the settlement of the land, coming in quick
\nsuccession, was one continuous ‘transaction’ which was hit by section
\n71A of the Act. The contention that the application for restoration was
\nfiled after the period of limitation,  was rejected on the ground that the
\nplea of limitation had not been raised at any stage of the proceeding.
\nOn this reasoning the High Court dismissed the writ application of the
\nappellants.  Hence, this appeal.\n<\/p>\n
\tBefore we take up the contentions in the appeal, a quick look at
\nthe applicable material legal provisions.  The Chhota Nagpur Tenancy
\n(Amendment) Act, 1908 is of  1908 vintage. By the amending Act of
\n1947 (Bihar Act 25 of 1947), which came into force with effect from
\n5.1.1948) section 46 was introduced in the statute. Section 46 of the
\nAct puts restrictions on the transfer  of the rights by ‘raiyat’ who is a
\nmember of a Scheduled Tribe. As a rule, any transfer  of holding or a
\nportion of his holding by sale, exchange, gift or will and so on is
\nprohibited by section 46. Provisos  (a) and (b) of Section 46   deal
\nwith transfer of occupancy rights of a raiyat who is a member of
\nScheduled Tribe.  Both these provisos  contain only one exceptional
\nsituation under which  the transfer of the occupancy  right of a raiyat
\nbelonging to a Scheduled Tribe is recognized in law and that is where
\nit has been done with the previous sanction of the Deputy
\nCommissioner.  By a further amendment made by the Bihar
\nScheduled Areas Regulations, 1969, certain amendments were made,
\ninter alia,  in Rule 3 of Order I  of Code of Civil Procedure and in
\nArticle 65 of the IInd Schedule  of Limitation Act of 1963.  What is of
\nimportance for us is the introduction of Section 71 A and 71B in the
\nChota Nagpur Tenancy Act, 1908 (Bengal Act VI of 1908).  Section
\n71A reads as follows:\n<\/p>\n
“71A.  Power to restore possession to members
\nof the Scheduled Tribes over land unlawfully
\ntransferred <\/p>\n
\tIf at any time it comes to the notice of the
\nDeputy Commissioner that transfer of land
\nbelonging to a raiyat (or a Mundari khunt kattidar
\nor Bhuinhar) who is a member of the Scheduled
\nTribes has taken plae in contravention of section
\n46 (or section 48 or Section 240) or any other
\nprovisions of this Act or by any fraudulent method,
\n(including decrees obtained in suits by fraud or
\ncollusion) he may, after giving reasonable
\nopportunity  to the transferee, who is proposed to
\nbe evicted to show cause and  after making
\nnecessary enquiry in the matter, evict the
\ntransferee from such land without payment of
\ncompensation and restore it to the transferor or his
\nheir and if such heir is not available  or is not
\nwilling to agree to such restoration resettle it with
\nanother raiyat belonging to the scheduled tribes
\naccording to the village custom for the disposal of
\nan abandoned holding.”\n<\/p>\n
\tThe Section has three provisos which do not concern us as far
\nas the present appeal is concerned.  The other important point to be
\nnoticed is that Article 65 of the Schedule of Limitation Act of 1963
\nwas amended simultaneously  by providing a period of 30 years as the
\nlimitation for bringing a suit for recovery of immovable property
\nbelonging to a member of  a Scheduled Tribe.\n<\/p>\n
\tAgainst the background of these legal provisions, the learned
\ncounsel for the appellants raised the following contentions.\n<\/p>\n
1.\tSection 71A has no application whatsoever to the case of
\nthe appellant. Even if the surrender of tenancy by the
\ntenants on 7.2.1938 followed by settlement of property
\non the present appellant on 25.2.1938 could be
\nconsidered as ‘transfer’ within the meaning of section
\n71A, there was no provision of law which existed in the
\nyear 1938 under which such a transfer was prohibited.
\nThere is no retrospectice effect given to Section 71A so
\nas to cover transactions which took place in the remote
\npast.  Hence, the power to restore possession could not
\nhave been exercised under section 71A;\n<\/p>\n
2.\tIn any event, the period of limitation of 30 years was
\nlong past when the application for restoration of
\npossession was sought to be entered by the Special
\nOfficer in the year 1978.\n<\/p>\n
Despite service of notice of this appeal, there was no
\nappearance by the fifth and sixth Respondents, who are the contesting
\nRespondents. Hence, we requested Mr.P.S. Narasimha, learned
\nadvocate, to appear as Amicus Curiae and represent the interest of the
\nsaid respondents who belong to a Scheduled Tribe.  Mr. Narasimha
\nhas commendably represented the case of the said respondents and
\nbrought to our notice some judgments of this Court having a bearing
\non the issue.\n<\/p>\n
 Shri Narasimha urged that there is no substance in the
\ncontention of the appellant on the issue of limitation. It is pointed out
\nthat the High Court was right in its findings that the issue of limitation
\nhad never been raised in the proceedings before the lower authorities.
\nLimitation is not an abstract proposition of law, but must necessarily
\narise out of the facts. Hence, it was urged that we should not entertain
\nthe plea of limitation.  Learned Amicus Curiae  further contended that
\nSection 71A is an  enabling power of the Deputy Commissioner
\nwhich can be exercised by him, even suo-motu, “if at any time” it
\ncomes to his notice that the rights of a raiyat belonging to a Scheduled
\nTribe have been taken away by reason of : (a) contravention of section
\n6 or section 48 or s. 240 B or any other relevant provision of the Act;
\nor (b) by any fraudulent method including decrees obtained under
\nstatutes  by fraud or collusion. Learned amicus curiae  also drew our
\nattention to the judgments of this Court in Jai Mangal Oraon v. Mira
\nNayak and others<\/a> (2000) 5 SCC 141;      Ibrahimpatnam Taluk
\nVyavasaya Coolie Sangham v. K. Suresh Reddy and others<\/a> (2003) 7
\nSCC 667;   State of Rajasthan v. Shankar Lal Kunda Ram Banwarilal<\/a>
\n(1992) Supp. 2 SCC 76; and  Uttam Namdeo Mahale v. Vittal Deo
\nand Others<\/a> (1997) 6 SCC 73.\n<\/p>\n
Apart from the reasoning given by the High Court, it appears to
\nus that the judgment  of this Court in Ibrahimpatnam (supra) is
\ndecisive on the contention of limitation urged before us. Under
\nsomewhat similar circumstances suo-motu power was given to the
\nCollector under section 50B (iv) of the Andhra Pradesh (Telangana
\nArea) Tenancy and Agricultural Lands Act, 1950 to call for and
\nexamine the record  relating to any certificate issued  or proceedings
\ntaken by the Tahsildar  under this section for the purpose of satisfying
\nhimself as to the legality or propriety of such certificate or as to the
\nregularity of such proceedings and pass such order in relation thereto
\nas he may think fit. In this judgment,  to which one of us (Shivraj V.
\nPatil,J.) was a party, the Court observed (para 9):
\n“Even before the Division Bench of the High
\nCourt in the writ appeals, the appellants did not
\ncontend that the suo motu power could be
\nexercised even after a long delay of 13-15 years
\nbecause of the fraudulent acts of the non-official
\nrespondents.  The focus of attention before the
\nDivision Bench was only on the language of sub-
\nsection (4) of Section 50-B of the Act as to
\nwhether the suo motu power could be exercised at
\nany time strictly sticking  to  the language of that
\nsub-section or it could be exercised within
\nreasonable time. In the absence of necessary and
\nsufficient particulars pleaded as regards fraud and
\nthe date or period of discovery of fraud and more
\nso when the contention  that the suo motu power
\ncould be exercised within a reasonable period from
\nthe date of discovery of fraud  was not urged, the
\nlearned Single Judge as well as the Division Bench
\nof the High Court were right in not examining the
\nquestion of fraud alleged to have been committed
\nby the non-official respondents. Use of the words
\n“at any time” in sub-section (4) of Section 50-B of
\nthe Act only indicates that no specific period of
\nlimitation is prescribed within which the suo motu
\npower could be exercised reckoning or starting
\nfrom a particular date advisedly and contextually.
\nExercise of suo motu power depended on facts and
\ncircumstances of each case. In cases of fraud, this
\npower could be exercised within a reasonable time
\nfrom the date of detection or discovery of fraud.
\nWhile exercising such power, several factors need
\nto be kept in mind such as effect on the rights of
\nthe third parties over the immovable property due
\nto passage of considerable time, change of hands
\nby subsequent bona fide transfers, the orders
\nattaining finality under the provisions of other Acts
\n(such as the Land Ceiling Act). Hence, it appears
\nthat without stating from what date the period of
\nlimitation starts and within what period the suo
\nmotu power is to be exercised, in sub-section (4)
\nof Section 50-B of the Act, the words “at any
\ntime” are used to that the suo motu power could be
\nexercised within reasonable period from the date
\nof discovery of fraud depending on facts and
\ncircumstances of each case in the context of the
\nstatute and nature of rights of the parties. Use of
\nthe words  “at any time” in sub-section (4) of
\nSection 50-B of the Act cannot be rigidly read
\nletter by letter.  It must be read and construed
\ncontextually and reasonably. If one has to simply
\nproceed on the basis of the dictionary meaning of
\nthe words “at any time”, the suo motu power under
\nsub-section (4) of Section 50-B of the Act could be
\nexercised even after decades and then it would lead
\nto anomalous position leading to uncertainly and
\ncomplications seriously affecting the rights of the
\nparties, that too, over immovable properties.
\nOrders attaining finality and certainty of the rights
\nof the parties accrued in the light of the orders
\npassed must have sanctity. Exercise of suo motu
\npower “at any time” only means that no specific
\nperiod such as days, months or years are not
\nprescribed reckoning from a particular date. But
\nthat does not mean that “at any time” should be
\nunguided and arbitrary. In this view, “at any time”
\nmust be understood as within a reasonable time
\ndepending on the fats and circumstances of each
\ncase in the absence of prescribed period of
\nlimitation.”\n<\/p>\n
\tWe are, therefore, of the view that the use of the words “at any
\ntime” in section 71A is evidence of the legislative intent to give
\nsufficient flexibility to the Deputy Commissioner to implement the
\nsocio-economic policy of the Act  viz.  to prevent inroads upon the
\nrights of the ignorant, illiterate and backward citizens.  Thus, where
\nthe Deputy Commissioner chooses to exercise his power under
\nSection 71A it would be futile to contend that the period of limitation
\nunder Limitation Act has expired.  The period of limitation under the
\nLimitation Act is  intended to bar suits brought in civil courts where
\nthe party himself chooses to exercise his right of seeking restoration
\nof immovable property. But,  where, for socio-economic reasons, the
\nparty may not even be aware  of his own rights, the legislature has
\nstepped in by making an officer of the State responsible for doing
\nsocial justice by clothing him with sufficient power. However, even
\nsuch power cannot be exercised after an unreasonably long time
\nduring which third party interests might have come into effect.  Thus,
\nthe test is not whether the period of limitation prescribed in the Act of
\n1963 had expired, but whether the power under Section 71A was
\nsought to be exercised after unreasonable delay.
\nMr. Narasimha fairly conceded that he was not in a position to
\ndemonstrate that the surrender which took place on 17.2.1938 was in
\ncontravention of any of the provisions of the Act.  He also conceded
\nthat section 46, which came into force on 5.1.1948, had no
\nretrospective effect. Thus, there was no question of the transfer which
\ntook place in 1938 being in contravention of section 46.  He, however,
\nstrongly urged that the circumstances of the transfer brought about on
\nrecord suggest a fraudulent transaction on the part of the landlord. He
\nparticularly urged that as the facts show only some of the co-sharers
\nhad surrendered their rights while some had not  and the landlord had
\nmanaged to take possession of the land and within a span of less than
\nthree weeks settled the land upon the present appellants.  This
\ntransaction smacks of a fraudulent act  and must be viewed at askance,
\nis his submission.\n<\/p>\n
We will assume that the surrender of tenancy on 7.2.1938 and
\nthe settlement of the lands on the present appellant on 25.2.1938 were
\nin quick succession and could be viewed as parts of the same
\ntransaction within the meaning of the term ‘transfer’ as contemplated
\nby the Act.  Nonetheless, it has not been established before us that the
\ntransfer was contrary to any other provisions of the Act.
\nWe shall now examine the last argument of Shri Narasimha that
\nthe transfer was fraudulent.  Even on this, we are afraid that the
\nappellants are entitled to succeed. We need not go into the details of
\nthe transaction for we may even assume that the transfer was
\nfraudulent.  Even then, as held in  Ibrahimpatnam (supra), the power
\nunder Section 71A could have been exercised only within a
\nreasonable time.  Looking to the facts and circumstances of the
\npresent appeal, we are not satisfied that the Special officer exercised
\nhis powers under Section 71A within a reasonable period of time.
\nThe lapse of 40 years is certainly not a reasonable time for exercise of
\npower, even if it is not  hedged in by a period of limitation.  We derive
\nsupport to our view from the observations made by this Court in Jai
\nMangal Oraon case   (supra) which was also a case which arose under
\nthe very same provision of law.  There this Court took the view that
\nSection 46(4)(a), which envisaged a prior sanction of the Deputy
\nCommissioner before effecting  the transfer in any of the modes stated
\ntherein, was introduced only in the year 1947 (with effect from
\n5.1.1948) and no such provision existed during the relevant point of
\ntime when the surrender was made in that case (15.1.1942).
\nObviously, therefore, no such provision existed in 1938, and the same
\nreasoning applies.\n<\/p>\n
\tIn the result, therefore, we are of the view that the Special
\nOfficer ought not to have exercised his powers under Section 71A of
\nthe Act after such an unreasonable long period of time, in the facts
\nand circumstances of the case brought to light.
\n\tThe appellants succeed.  The impugned judgment of the High
\nCourt and the impugned judgments of the authorities below are all set
\naside and the application for restoration made by the fifth respondent
\nbeing SAR 415\/77-78 is dismissed.\n<\/p>\n
\tThere shall be no orders as to costs.\n<\/p>\n
\tWe place on record our appreciation of the able assistance
\nrendered by the Amicus Curiae Shri  P.S. Narasimha.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Situ Sahu And Others vs The State Of Jharkhand And Others on 10 September, 2004 Author: Srikrishna Bench: Shivaraj V. Patil, B.N. Srikrishna CASE NO.: Appeal (civil) 2414-15 of 1999 PETITIONER: Situ Sahu and Others RESPONDENT: The State of Jharkhand and others DATE OF JUDGMENT: 10\/09\/2004 BENCH: Shivaraj V. Patil & […]<\/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":[30],"tags":[],"class_list":["post-42439","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSitu Sahu And Others vs The State Of Jharkhand And Others on 10 September, 2004 - 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\/situ-sahu-and-others-vs-the-state-of-jharkhand-and-others-on-10-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Situ Sahu And Others vs The State Of Jharkhand And Others on 10 September, 2004 - 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