WRIT PETITION (CIVIL) No. 5819 OF 2009.
In the matter of an Application under Article 227 of the Constitution of India.
1. [ENTITY].
2. [ENTITY] Petitioners Versus
1. The [ENTITY]
2. The [ENTITY].
3. The [ENTITY].
4. [ENTITY] (Mundain)
5. [ENTITY]
Respondents.
For the Petitioners : M/s. [ENTITY], Senior Advocate and [ENTITY], Advocate.
For the Respondents No. 1 to 3 : M/s. [ENTITY],Standing Counsel (Mines), [ENTITY] and [ENTITY], J.C. to Standing Counsel (Mines).
For the Respondents No. 4 & 5 : M/s. [ENTITY] and [ENTITY], Advocate.
PRESENT THE HON'BLE MRS. JUSTICE POONAM SRIVASTAV
CAV ON 22.12.2011 PRONOUNCED ON 28.02.2012.
[ENTITY], J. The instant writ petition is preferred, challenging the order dated 30th November, 2009 (Annexure 5) passed by the [ENTITY] (respondent no. 2) in [CASE NUMBER] allowing the restoration application filed under [SECTION] of the [ACT] (hereinafter referred to as "the Act") affirming the appellate order dated 29th July, 2009 (Annexure 3) passed by the [ENTITY] in [CASE NUMBER].
2. The facts giving rise to the dispute is that the lands in question comprises Plot Nos. 1161, 1162 and 1163 under Khata No. 103, Village Chutia which was initially recorded in the revisional survey records of right in the name of [ENTITY] and [ENTITY] both sons of [ENTITY]. These original tenants surrendered the lands in question by means of three surrender deed: 1st Deed No. 2644 dated 23rd May, 1949, 2nd Deed No, 2329 dated 10th May, 1949 and 3rd Deed No. 541 dated 24th January, 1951 in favour ex-landlord [ENTITY]. Consequent on the execution of the aforesaid deeds, the landlord came in possession. The predecessor-in-interest, namely, [ENTITY] executed two registered Kabuliyat bearing Deed No. 3862 dated 9th July, 1949 and Deed No. 4347 dated 15th June, 1951 settling the lands in question in respect of Plot No. 1163 measuring 31 decimal; Plot No. 1162 measuring 77 decimal and the land was settled by virtue of a registered deed of settlement dated 30th August, 1949. Second registered deed was executed on 18th December, 1951 settling the area of 49 decimal in Plot No. 1161 and another 59 decimal of Plot No. 1162. Thus [ENTITY], the predecessor in interest of the petitioner came in possession and continued as raiyat upon vesting of zamindari interest under the provisions of the [ACT].
3. Submission of learned counsel is that [ENTITY] was recognised as a raiyat by the erstwhile State of Bihar and rent receipts were issued by the State of Bihar after vesting. The petitioner no. 1 is son of [ENTITY] and claimed his raiyati rights on the basis of the settlement deeds mentioned hereinbefore.
4. Respondent No. 4-[ENTITY] is the daughter-in-law of [ENTITY] and respondent no. 5-[ENTITY] is the son of [ENTITY]. Both of them claimed their rights in their individual capacity and instituted two restoration application vide [CASE NUMBER] and [CASE NUMBER] respectively. The petitioners filed their show cause after being noticed and disputed the claim of the contesting respondents.
5. The first and foremost objection was that the surrender deed pertains to the year 1949 and 1951 respectively whereas restoration applications were filed in the year 2005 and, therefore, hopelessly barred by limitation.
The second objection was that the rent receipts were issued by the ex-landlord and after vesting by the erstwhile State of Bihar and also that [ENTITY] had two sons, namely, [ENTITY] and [ENTITY]. [ENTITY]-respondent no. 4 is the widow of [ENTITY] who died in the year 2002.
6. Learned counsel states that the right of daughter-in-law as claimed in the instant proceedings could not have been allowed by the respondents and, therefore, the impugned order is liable to be quashed.
7. The Special Officer, Schedule Area Regulation, Ranchi placed reliance on two decisions of the Apex Court in the case of [ENTITY] vs. Mira Nayak and others [(2000) 5 Supreme Court Cases 141] and [ENTITY] and others vs. [ENTITY] and others [(2004) 8 Supreme Court Cases 340], declined the claim of the respondent, held that the date of transfer was 1949; 30 years expired in 1980, whereas the restoration application is filed in the year 2005. Therefore, the two restoration applications were dismissed vide order dated 5th September, 2008 (Annexure 2 to the writ petition). [ENTITY]-respondent no. 4 alone preferred [CASE NUMBER] but respondent no. 5 did not prefer any appeal.
8. The connection of the learned counsel is that, in fact, according to [ACT], it was the respondent no. 5 who could alone stake his claim and challenge the order dated 5.9.2008 but not the respondent no. 4 being a female descendants and, therefore, did not fall in the category of a legal heir. However, the [ENTITY] allowed the appeal and set aside the order dated 5th September, 2008 passed by the Special Officer, Schedule Area Regulation, Ranchi . While allowing the appeal, the appellate authority was of the view that surrender of land was in violation of the Act but no finding on the question of limitation was recorded by the [ENTITY]. The appellate authority recorded a finding on the question of compensation also holding that substantial structure had not come in existence prior to the year 1969. The petitioners preferred [CASE NUMBER] before the [ENTITY] (respondent no. 2) which was dismissed at the point of admission only.
9. Learned State counsel has supported the judgments of the appellate as well as the revisional courts and submissions is that the surrender of land was without permission of the Deputy Commissioner under [SECTION] of the Act and, therefore, the judgments cannot be interferred with.
10. Mr. [ENTITY], learned Senior Advocate assisted by Mr. [ENTITY], appearing on behalf of the petitioners has emphatically submitted that the appellate as well as the revisional authority has failed to take into consideration the two decisions of the Apex Court in [ENTITY] and [ENTITY] (Supra). These two decisions were neither noticed nor even considered by the revisional court.
11. After giving a careful consideration of the argument advanced and to the facts and circumstances of the case as well as the legal questions raised on behalf of the petitioners as well as the State the controversy revolves around the points primarily on the ground that the Special Officer, Schedule Area Regulation, rejected the claim of the respondents on account of delay and was of the opinion that the restoration is barred by limitation and also reliance was placed on the two decisions of the Apex Court in [ENTITY] and [ENTITY] (Supra). The appellate authority as well as the revisional authority has not taken into consideration this aspect that the restoration application was filed in the year 2005 whereas the period of limitation as held by the Apex Court is 30 years. This period expired in the year 1980. The appellate court has failed to consider that the application for restoration was preferred only after a lapse of 56 years. The two courts have specifically accepted that violation took place in the year 1949. The appellate court also recorded a finding regarding compensation, taking the construction on the land in question post 1969. The revisional court has dismissed the revision at the stage of admission itself without any finding on merit.
12. The learned counsel has placed the order-sheet to demonstrate that certain findings have been recorded on assumptions to the effect that the application for restoration on the face of it appears to be a conclusive compromise without there being any substance to support their contention. Thus the argument of the learned counsel challenging the two orders is first on the ground of limitation and second that no appeal was preferred by respondent no. 5 and it was only the respondent no. 4 who challenged the order of the Special Officer, Schedule Area Regulation, Ranchi, who was neither the legal heir nor could claim the right or title.
13. The argument on behalf of the respondent no. 5's counsel is that the law has not fixed any period of limitation and therefore no illegality exists; since the provision starts with the words " if at any time ". These lines were interpreted by the Apex Court in the case of [ENTITY] (Supra). In the circumstances argument advanced by the respondent that there was no time limit is not acceptable. In my opinion lapse of 56 years could not be brushed aside.
14. The Apex Court has adopted the view that [SECTION] of the Act was introduced only in the year 1969 and therefore the provisions of the Act would not be attracted in a case of surrender effected by a registered deed in the year 1942. In view of the decision of Hon'ble Supreme Court the conclusion arrived at by the powers of restoration cannot be exercised without consideration of delay. In the said case before the Hon'ble Supreme Court, 40 years period was considered to be a very long period and thus the judgment of the High Court, where the claim for restoration was rejected beyond the period of 30 years, was upheld. Thus the Apex Court declined restoration after a lapse of 40 years whereas, in the instant case, surrender was by means of a registered deed and also restoration is claimed after lapse of 56 years. Therefore, I am of the view that the appellate court as well as the revisional court completely overlooked these two decisions, whereas the 1st order was passed specifically taking into consideration the two decisions i.e. [ENTITY] and [ENTITY] (Supra). The question that no appeal was filed by respondent no. 5, who was the actual legal heir of [ENTITY], has also not been taken into account by the two courts below and the judgments are absolutely without any consideration of the legal question involved.
15. Learned counsel appearing on behalf of respondents no. 4 and 5 has placed reliance in the cases Bipta Sahu and others vs. [ENTITY] and others [2006 (4) JLJR 118] and Smt. [PRECEDENT].
16. Mr. [ENTITY], learned senior counsel appearing on behalf of the petitioners, disputing the arguments on behalf of the respondents , has reiterated the original argument and has emphasised on the argument that the widows have no right and the Oraon Customary Law do not entitled the widow to claim restoration especially on the face of no claim having been made by the legal heir of [ENTITY], namely, [ENTITY]. I am in agreement with the submission of learned counsel that the appellate court as well as the revisional court have failed to take into consideration the question of limitation specially in the light of the two decisions of the Apex Court and that the revisional court has, in fact, dismissed the revision at the stage of admission itself without even giving an opportunity of appropriate hearing. In fact the revisional order is re para framing of the order passed by appellate authority.
17. In the circumstances, the two courts below having failed to record specific finding on the legal questions have merely set aside the order of the Special Officer, Schedule Area Regulation, Ranchi without any reasons and thus are liable to reconsider the vital aspects as mentioned hereinabove. The case is remanded at the appellate stage before the [ENTITY] to record its finding on all the questions including the question of limitation i.e. right of widow and also other aspects of the case such as limitation etc.
18. For the reasons discussed above, I am of the opinion that the appellate court is liable to reconsider its decision and decide afresh after affording opportunity of hearing to the petitioners as well as respondents no. 4 and 5. The appellate court shall not linger the matter and decide the appeal as expeditiously as possible. The two impugned orders (Annexures 3 and 5) in the instant writ petition are quashed.
19. The writ petition is allowed and the matter is remitted to the [ENTITY]-the appellate authority to record his findings on the points mentioned hereinbefore.
([ENTITY], J) JHARKHAND HIGH COURT, RANCHI THE 28TH FEBRUARY, 2012.
AKS/NAFR/Cp.3.