Full Judgment Text
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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 & B.N. Srikrishna
JUDGMENT:
J U D G M E N T
Srikrishna, J.
These appeals, by special leave call into question the judgment
of the Division Bench of the Patna High Court dismissing the writ
application of the appellants.
In the area to which the Chota Nagpur Tenancy Act, 1908
(hereinafter referred to as ’the Act’) applied, certain lands were
originally recorded in the names of Kochya Oraon, Bachua Oraon and
Jagna Oraon, ancestors of one Goinda Oraon. They were the
recorded tenants of land in Khata no.13 of village Chhotanagpur.
Jagna Oraon died immediately after the revisional survey. Kochya
and Bachua surrendered the tenancy pertaining to plot nos. 588, 1883,
1884 and 1885 in Khata no.13 admeasuring 2.65 acres of the land to
the landlord, the Maharaja of Chhotanagpur by a registered deed
dated 7.2.1938. Soon thereafter, the landlord settled the land on the
appellants on 25.2.1938. The appellants have been in possession of
the land and cultivating it.
On 3.2.1978 the said Goinda Oraon filed an application under
section 71A of the Act for restoration of the land in question on the
ground that the appellants had fraudulently acquired the land by
means of a ’sada hukumnama’. This application was registered as
S.A.R. Case No. 415/77-78. The Special Officer, Ranchi issued
notices to the appellants and, after hearing the parties and recording
evidence, came to the conclusion that the land belonged to the
ancestors of Goinda, who were members of scheduled tribes and
khatiyani holders of the land in question. Although, originally there
were four co-sharers in the land, namely, Kochya Oraon, Bachua
Oraon, Jagna Oraon and Goinda Oraon, the tenancies were
surrendered only by Kochya and Bachua and not by the other two.
The surrender was made on 7.3.1938 and the settlement in favour of
the appellants was made on 25.3.1938. The Special Officer took the
view that the surrender and the settlement of the land constituted one
continuing act and was, therefore, contrary to the provisions of the
Act. He also held that the surrender was illegal as all the shareholders
had not surrendered their rights and decided that by reason of the
provisions of Section 71A of the Act the tribals could not have been
dispossessed from the aforesaid land. In this view of the matter, he
allowed the application for restoration of possession to the applicant
Goinda Oroan by an order made on 9.5.1980. The appellant appealed
to the Additional Collector, Ranchi who affirmed the view of the
Special Officer. A revision petition was also dismissed by the
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Commissioner upholding the views of the two authorities below.
The appellants challenged the order of the Revenue Authorities
by a writ petition before the Patna High Court. The High Court
dismissed the writ petition holding that section 71A of the Act is a
beneficial legislation and the legislative intent is to extend protection
to a class of citizens who were unable to protect their properties on
account of backwardness, and, therefore, the Court had to give a broad
and liberal construction to the legislative intent of protection. The
High Court agreed with the authorities below that the surrender of
the tenancy and the settlement of the land, coming in quick
succession, was one continuous ’transaction’ which was hit by section
71A of the Act. The contention that the application for restoration was
filed after the period of limitation, was rejected on the ground that the
plea of limitation had not been raised at any stage of the proceeding.
On this reasoning the High Court dismissed the writ application of the
appellants. Hence, this appeal.
Before we take up the contentions in the appeal, a quick look at
the applicable material legal provisions. The Chhota Nagpur Tenancy
(Amendment) Act, 1908 is of 1908 vintage. By the amending Act of
1947 (Bihar Act 25 of 1947), which came into force with effect from
5.1.1948) section 46 was introduced in the statute. Section 46 of the
Act puts restrictions on the transfer of the rights by ’raiyat’ who is a
member of a Scheduled Tribe. As a rule, any transfer of holding or a
portion of his holding by sale, exchange, gift or will and so on is
prohibited by section 46. Provisos (a) and (b) of Section 46 deal
with transfer of occupancy rights of a raiyat who is a member of
Scheduled Tribe. Both these provisos contain only one exceptional
situation under which the transfer of the occupancy right of a raiyat
belonging to a Scheduled Tribe is recognized in law and that is where
it has been done with the previous sanction of the Deputy
Commissioner. By a further amendment made by the Bihar
Scheduled Areas Regulations, 1969, certain amendments were made,
inter alia, in Rule 3 of Order I of Code of Civil Procedure and in
Article 65 of the IInd Schedule of Limitation Act of 1963. What is of
importance for us is the introduction of Section 71 A and 71B in the
Chota Nagpur Tenancy Act, 1908 (Bengal Act VI of 1908). Section
71A reads as follows:
"71A. Power to restore possession to members
of the Scheduled Tribes over land unlawfully
transferred \026
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 kattidar
or Bhuinhar) who is a member of the Scheduled
Tribes has taken plae 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 suits by fraud or
collusion) he may, after giving reasonable
opportunity to the transferee, who is proposed to
be evicted to show cause and after making
necessary enquiry in the matter, evict the
transferee from such land without payment of
compensation and restore it to the transferor or his
heir and if such heir is not available or is not
willing to agree to such restoration resettle it with
another raiyat belonging to the scheduled tribes
according to the village custom for the disposal of
an abandoned holding."
The Section has three provisos which do not concern us as far
as the present appeal is concerned. The other important point to be
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noticed is that Article 65 of the Schedule of Limitation Act of 1963
was amended simultaneously by providing a period of 30 years as the
limitation for bringing a suit for recovery of immovable property
belonging to a member of a Scheduled Tribe.
Against the background of these legal provisions, the learned
counsel for the appellants raised the following contentions.
1. Section 71A has no application whatsoever to the case of
the appellant. Even if the surrender of tenancy by the
tenants on 7.2.1938 followed by settlement of property
on the present appellant on 25.2.1938 could be
considered as ’transfer’ within the meaning of section
71A, there was no provision of law which existed in the
year 1938 under which such a transfer was prohibited.
There is no retrospectice effect given to Section 71A so
as to cover transactions which took place in the remote
past. Hence, the power to restore possession could not
have been exercised under section 71A;
2. In any event, the period of limitation of 30 years was
long past when the application for restoration of
possession was sought to be entered by the Special
Officer in the year 1978.
Despite service of notice of this appeal, there was no
appearance by the fifth and sixth Respondents, who are the contesting
Respondents. Hence, we requested Mr.P.S. Narasimha, learned
advocate, to appear as Amicus Curiae and represent the interest of the
said respondents who belong to a Scheduled Tribe. Mr. Narasimha
has commendably represented the case of the said respondents and
brought to our notice some judgments of this Court having a bearing
on the issue.
Shri Narasimha urged that there is no substance in the
contention of the appellant on the issue of limitation. It is pointed out
that the High Court was right in its findings that the issue of limitation
had never been raised in the proceedings before the lower authorities.
Limitation is not an abstract proposition of law, but must necessarily
arise out of the facts. Hence, it was urged that we should not entertain
the plea of limitation. Learned Amicus Curiae further contended that
Section 71A is an enabling power of the Deputy Commissioner
which can be exercised by him, even suo-motu, "if at any time" it
comes to his notice that the rights of a raiyat belonging to a Scheduled
Tribe have been taken away by reason of : (a) contravention of section
6 or section 48 or s. 240 B or any other relevant provision of the Act;
or (b) by any fraudulent method including decrees obtained under
statutes by fraud or collusion. Learned amicus curiae also drew our
attention to the judgments of this Court in Jai Mangal Oraon v. Mira
Nayak and others (2000) 5 SCC 141; Ibrahimpatnam Taluk
Vyavasaya Coolie Sangham v. K. Suresh Reddy and others (2003) 7
SCC 667; State of Rajasthan v. Shankar Lal Kunda Ram Banwarilal
(1992) Supp. 2 SCC 76; and Uttam Namdeo Mahale v. Vittal Deo
and Others (1997) 6 SCC 73.
Apart from the reasoning given by the High Court, it appears to
us that the judgment of this Court in Ibrahimpatnam (supra) is
decisive on the contention of limitation urged before us. Under
somewhat similar circumstances suo-motu power was given to the
Collector under section 50B (iv) of the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural Lands Act, 1950 to call for and
examine the record relating to any certificate issued or proceedings
taken by the Tahsildar under this section for the purpose of satisfying
himself as to the legality or propriety of such certificate or as to the
regularity of such proceedings and pass such order in relation thereto
as he may think fit. In this judgment, to which one of us (Shivraj V.
Patil,J.) was a party, the Court observed (para 9):
"Even before the Division Bench of the High
Court in the writ appeals, the appellants did not
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contend that the suo motu power could be
exercised even after a long delay of 13-15 years
because of the fraudulent acts of the non-official
respondents. The focus of attention before the
Division Bench was only on the language of sub-
section (4) of Section 50-B of the Act as to
whether the suo motu power could be exercised at
any time strictly sticking to the language of that
sub-section or it could be exercised within
reasonable time. In the absence of necessary and
sufficient particulars pleaded as regards fraud and
the date or period of discovery of fraud and more
so when the contention that the suo motu power
could be exercised within a reasonable period from
the date of discovery of fraud was not urged, the
learned Single Judge as well as the Division Bench
of the High Court were right in not examining the
question of fraud alleged to have been committed
by the non-official respondents. Use of the words
"at any time" in sub-section (4) of Section 50-B of
the Act only indicates that no specific period of
limitation is prescribed within which the suo motu
power could be exercised reckoning or starting
from a particular date advisedly and contextually.
Exercise of suo motu power depended on facts and
circumstances of each case. In cases of fraud, this
power could be exercised within a reasonable time
from the date of detection or discovery of fraud.
While exercising such power, several factors need
to be kept in mind such as effect on the rights of
the third parties over the immovable property due
to passage of considerable time, change of hands
by subsequent bona fide transfers, the orders
attaining finality under the provisions of other Acts
(such as the Land Ceiling Act). Hence, it appears
that without stating from what date the period of
limitation starts and within what period the suo
motu power is to be exercised, in sub-section (4)
of Section 50-B of the Act, the words "at any
time" are used to that the suo motu power could be
exercised within reasonable period from the date
of discovery of fraud depending on facts and
circumstances of each case in the context of the
statute and nature of rights of the parties. Use of
the words "at any time" in sub-section (4) of
Section 50-B of the Act cannot be rigidly read
letter by letter. It must be read and construed
contextually and reasonably. If one has to simply
proceed on the basis of the dictionary meaning of
the words "at any time", the suo motu power under
sub-section (4) of Section 50-B of the Act could be
exercised even after decades and then it would lead
to anomalous position leading to uncertainly and
complications seriously affecting the rights of the
parties, that too, over immovable properties.
Orders attaining finality and certainty of the rights
of the parties accrued in the light of the orders
passed must have sanctity. Exercise of suo motu
power "at any time" only means that no specific
period such as days, months or years are not
prescribed reckoning from a particular date. But
that does not mean that "at any time" should be
unguided and arbitrary. In this view, "at any time"
must be understood as within a reasonable time
depending on the fats and circumstances of each
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case in the absence of prescribed period of
limitation."
We are, therefore, of the view that the use of the words "at any
time" in section 71A is evidence of the legislative intent to give
sufficient flexibility to the Deputy Commissioner to implement the
socio-economic policy of the Act viz. to prevent inroads upon the
rights of the ignorant, illiterate and backward citizens. Thus, where
the Deputy Commissioner chooses to exercise his power under
Section 71A it would be futile to contend that the period of limitation
under Limitation Act has expired. The period of limitation under the
Limitation Act is intended to bar suits brought in civil courts where
the party himself chooses to exercise his right of seeking restoration
of immovable property. But, where, for socio-economic reasons, the
party may not even be aware of his own rights, the legislature has
stepped in by making an officer of the State responsible for doing
social justice by clothing him with sufficient power. However, even
such power cannot be exercised after an unreasonably long time
during which third party interests might have come into effect. Thus,
the test is not whether the period of limitation prescribed in the Act of
1963 had expired, but whether the power under Section 71A was
sought to be exercised after unreasonable delay.
Mr. Narasimha fairly conceded that he was not in a position to
demonstrate that the surrender which took place on 17.2.1938 was in
contravention of any of the provisions of the Act. He also conceded
that section 46, which came into force on 5.1.1948, had no
retrospective effect. Thus, there was no question of the transfer which
took place in 1938 being in contravention of section 46. He, however,
strongly urged that the circumstances of the transfer brought about on
record suggest a fraudulent transaction on the part of the landlord. He
particularly urged that as the facts show only some of the co-sharers
had surrendered their rights while some had not and the landlord had
managed to take possession of the land and within a span of less than
three weeks settled the land upon the present appellants. This
transaction smacks of a fraudulent act and must be viewed at askance,
is his submission.
We will assume that the surrender of tenancy on 7.2.1938 and
the settlement of the lands on the present appellant on 25.2.1938 were
in quick succession and could be viewed as parts of the same
transaction within the meaning of the term ’transfer’ as contemplated
by the Act. Nonetheless, it has not been established before us that the
transfer was contrary to any other provisions of the Act.
We shall now examine the last argument of Shri Narasimha that
the transfer was fraudulent. Even on this, we are afraid that the
appellants are entitled to succeed. We need not go into the details of
the transaction for we may even assume that the transfer was
fraudulent. Even then, as held in Ibrahimpatnam (supra), the power
under Section 71A could have been exercised only within a
reasonable time. Looking to the facts and circumstances of the
present appeal, we are not satisfied that the Special officer exercised
his powers under Section 71A within a reasonable period of time.
The lapse of 40 years is certainly not a reasonable time for exercise of
power, even if it is not hedged in by a period of limitation. We derive
support to our view from the observations made by this Court in Jai
Mangal Oraon case (supra) which was also a case which arose under
the very same provision of law. There this Court took the view that
Section 46(4)(a), which envisaged a prior sanction of the Deputy
Commissioner before effecting the transfer in any of the modes stated
therein, was introduced only in the year 1947 (with effect from
5.1.1948) and no such provision existed during the relevant point of
time when the surrender was made in that case (15.1.1942).
Obviously, therefore, no such provision existed in 1938, and the same
reasoning applies.
In the result, therefore, we are of the view that the Special
Officer ought not to have exercised his powers under Section 71A of
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the Act after such an unreasonable long period of time, in the facts
and circumstances of the case brought to light.
The appellants succeed. The impugned judgment of the High
Court and the impugned judgments of the authorities below are all set
aside and the application for restoration made by the fifth respondent
being SAR 415/77-78 is dismissed.
There shall be no orders as to costs.
We place on record our appreciation of the able assistance
rendered by the Amicus Curiae Shri P.S. Narasimha.