Restoration of tribal land under Section 71-A CNT Act despite wrong plot numbers in the application; the Division Bench held technical errors cannot defeat welfare legislation and dismissed the appeal upholding restoration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 146 of 2023
Arthor Capton, s/o Late Pritam Capton, Aged about 79 years, r/o Telco Forge Division, Electrical Maintenance, P.O. Telco, GM/S, P.S. Telco, Jamshedpur, District-Singhbhum East, Jharkhand.
… … Appellant/Petitioner
Versus
.. … Respondents/Respondents
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI
For the Appellants : Mr. Manoj Kr. Choubey, Advocate Mr. Madhav Prasad, Advocate Page 1 of 15
L.P.A. No. 146 of 2023
For the Respondents : Mrs. Darshana Poddar Mishra, AAG-I For the Resp. Nos.6-9 : Mr. Amit Kumar, Advocate
C.A.V. on 13th May, 2024 Pronounced on 12/06/2024 Per Sujit Narayan Prasad, J.:
Prayer:
Facts:
The land of village Kalimati under khata no. 66 plot no. 1401 was recorded in the name of Sine Masi Reven s/o Paulush Reven one share and Anthony Sine Masi Marshel w/o Soman Aind one share who were the Uraon (Scheduled tribe) in the cadastral survey and settlement operation.
Sine Masih Reven died issueless, thereafter his nephew Masih Das Khakha inherited, succeeded / acquired the right, title & possession of above land of plot no. 1401 under khata no. 66 of village Parsudih.
One Marshel Aind fraudulently posted himself as successor of Sinee Masih Reven as his grand son (son of daughter of Sinee Maish) and proposed to transfer the above land of plot no. 1401 of villageKalimatti to the petitioner and entered into an agreement for transfer of 10 Katha land of plot no. 1401 of village- kalimati and executed an agreement on 25.07.1982.
The petitioner after some times when the said Marshel Aind delay to execute sale deed enquired the matter and found that Marshel Aind was not the heirs or successor of Shine Masih Reven, he was fraudulently posted himself as successor of recorded tenant.
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The writ petitioner let out the above premises of plot no. 1401 to Marshel Aind who was only the tenant of the petitioner Marshel Aind after few years fraudulently started to claim the above land of plot no. 1401 by claiming himself as legal heirs & successor of recorded tenant Sine Mahih Reven through his mother Agnesh Aind.
Smt. Agnesh Aind w/o Sugandh Das Aind and D/o Dumabi Ho @ Kili Sundi was not the heirs of recorded raiyat, recorded raiyat Shimne Masih reven was by caste "Uraon" and Agnesh Aind was previously by caste "Ho" and after marriage with "Munda" she become by caste "Munda".
Marshel Aind the original petitioner of restoration case claiming himself as heir of Smt. Gano Agnesh Aind @ Agnesh Aind and grandson/daughter of Sinee Masin Reven and claiming the land of above khata no. 66, plot no. 1401 of village recorded raiyat filed a case u/s 71A of the CNT Act.
The petitioner of aforesaid restoration case is not the heir or successor of recorded raiyat shine Masih Reven (Uraon) because he was belongs to caste "Ho" and subsequently married with "Munda".
On permission of the ancestor of respondent nos. 6 to 9 the petitioner after agreement constructed pucca boundary and four rooms thereon and used as residence of his family members.
Thereafter, the respondent filed the petition to Deputy Collector Land Reform, Jamshedpur for restoration of the above land under Section 71-A of the C.N.T Act in which he concealed the truth that he has no claim over the land in question and he fraudulently made agreement to transfer the said land in favor of the petitioner and there after the petitioner on consent of the respondent constructed the boundary & Pucca rooms thereon and since 1982 the petitioner is in occupation of the above premises.
Thereafter, the Circle Officer enquired the matter and submitted report to the D.C.L.R, Jamshedpur stating therein that the petitioner is
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in possession of the above land and the petitioner also has his houses thereon.
The petitioner had filed the rejoinder, claiming the land in question through Masih Das Khakha & also on basis of possession since long time. The petitioner also stated & proved by the evidences that the Marshel Aind is not the heirs or successor of recorded tenant Shine Masih Reven (Uraon) rather Marshel Aind is by caste "Munda" and his mother belongs to "Ho". The petitioner also stated that according to the "Uraon" customary Law the female heirs not entitled to inherit the property of her male heirs.
The court of D.C.L.R. passed order in Restoration Case no.1 of 2005-06 for restoration of land in favor of Marshel Aind who was not the heir of recorded tenant.
Thereafter, the petitioner filed the restoration Appeal before the Deputy Commissioner Singhbhum East vide Restoration Appeal no. 103 of 2006 against the order of the DCLR Dalbhum in Restoration Case no.1 of 2005-06. The Learned Appellate Court of Deputy Commissioner passed order dismissing the appeal without giving any reasoned findings.
The petitioner thereafter preferred SAR Revision no. 07 of 2007 before the Commissioner Singhbhum (Kolhan) against the order of SAR Appeal no. 103 of 2006, but the learned Commissioner also dismissed the SAR Revision case no. 07 of 2007 against which the writ petition being W.P.(C) No. 4727 of 2013 had been filed before this Court which has also been dismissed by the learned Single Judge of this Court by declining to interfere with the order dated 10.06.2013 passed in SAR Revision No.07 of 2007 against which the instant letters patent appeal has been filed.
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no.66 measuring area 0.10.0 kattha. An order was passed by the Deputy Collector Land Reforms against which an appeal was filed being SAR Appeal No.103 of 2006-07 which was dismissed vide order dated 18.12.2006. The writ petitioner being aggrieved with the said order, challenged the same by filing revision being SAR Revision No. 07 of 2007 which has also been dismissed against which the writ petition was filed being W.P.(C) No. 4727 of 20103 which has also been dismissed, therefore, the present appeal.
Argument on behalf of the learned counsel for the appellants:
The argument on the basis of the aforesaid ground has been made that the order passed by the appellate and revisional authority who have not considered the aforesaid aspect of the matter, therefore, it is not sustainable as also the order passed by
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the learned Single Judge wherein also this aspect of the matter has not been considered, hence, the present appeal.
Argument on behalf of the learned counsel for the respondents/writ petitioner:
Response by the learned counsel for the Pvt. Respondents:
Analysis:
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appellant filed show cause and has taken the ground that he is not in possession with the plot nos.1410 and 1411. A report was called for from the concerned Circle Officer wherein the report was submitted that the appellant is not in possession over the plot nos.1410 and 1411 of khata no.66 rather he is in possession of plot no.1401.
The Deputy Collector Land Reforms, based upon the said report, has passed an order for restoration. The said order was challenged before the appellate forum which also got dismissed against which revision was preferred, which also got dismissed declining to interfere with the order passed by the original authority.
All the three orders were challenged by filing writ petition W.P.(C) No. 4727 of 2013 but the same has also been dismissed against which the present appeal has been filed.
Both the issues since are interlinked, as such, are being discussed hereinafter.
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“[ 46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof,-
(a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:]
Provided further that,- (a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled Tribes and], who is a
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resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate;
[(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the 'Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.]
(2) A transfer by a Raiyat of his right in his holding or any portion thereof under subsection (1) shall be binding on the landlords.
(3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction.
[(3-A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.]
(4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the Raiyat into possession of such holding or portion in the prescribed manner.
[(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof:
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Provided further that before passing any order under clause (b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this subsection, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit.
(c) If after holding the inquiry referred to in clause (a) of this subsection, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor.
(5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. [(6) In this Section [and in Section 47],-
(a) "Scheduled Casted" means such castes, races or tribes as are specified in Part II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950;
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and
(c) "Backward classed" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.]”
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" 71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. - If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat or a Mundari Khunt-Kattidaror a Bhuinhari who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or Section 48 or Section 240 or any other provisions of this Act or by any fraudulent method, including decrees obtained in suit by fraud and collusion he may, after giving reasonable opportunity to the transfer, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, resettle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed :
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor:
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Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another Raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."
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tribal people as also to achieve the object of provision of Section 46(1) of the CNT Act in the facts of the case herein.
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Conclusion:
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impugned has been refused to be interfered with, the same according to our considered view, cannot be said to suffer from error.
(Sujit Narayan Prasad, J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
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2 issues framed by the court
Whether a Section 71-A CNT Act restoration proceeding is vitiated because the application referred to wrong plot numbers?
Whether the Deputy Collector could restore possession of plot no.1401 when the application sought plots nos.1410 and 1411, absent the Deputy Commissioner's permission under Section 46?
Colour shows how this judgement treated each authority
Jai Mangal Oraon vs. Mira Nayak (Smt) and Ors.Referred¶15
(2000) 5 SCC 141 · Who else cites this
Situ Sahu and Ors. vs. State of Jharkhand and Ors.Referred¶15
(2004) 4 JLJR (SC) 109
3 provisions across 2 enactments
Arthor Capton
The State of Jharkhand
The Commissioner, Singhbhum (Kolhan)
The Deputy Commissioner, Singhbhum East
The Deputy Collector Land Reform, Dalbhum
The Circle Officer, Jamshedpur
Sujit Narayan Prasad
Arun Kumar Rai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
