- (1.) This appeal challenges the Judgment and Order dated 16.5.2002 passed by a learned Single Judge of this Court in C.W.J.C. No. 3309 of 1999 ( R ). Instead of repeating the facts, we consider it appropriate to reproduce the entire impugned order passed by the learned Single Judge, which is as follows: 6/16-5-2002. The petitioner has prayed for quashing the order dated 2.7.97 passed by respondent No. 3, Special Officer, Schedule Area Regulation, Ranchi in SAR case No. 234/1992-93 whereby he has ordered for restoration of the land in favour of respondent No. 4 under the provisions of Section 71A of the Chotanagpur Tenancy Act (shortly C.N.T. Act) and also the orders dated 31.7.99 and 26.10.99 passed by the Deputy Commissioner, Ranchi in S.A.R. Appeal No. 137 R-15 of 1997-98 and the Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No. 118/99 respectively whereby the appeal and revision filed by the petitioner have been dismissed. 2. Petitioner's case is that he has been coming in possession of the land appertaining to R.S. Plot No. 1080 under Khata No. 112 of village, Pandra measuring an area of 11 decimals since 5.11.1949 and he constructed boundary wall and pucca building more than 40 years back and got his name mutated in the office of the State of Bihar and Ranchi Municipal Corporation. In 1992 respondent No. 4 made an application before the Special officer, Schedule Area Regulation, respondent No. 3, for restoration of the land under Section 71A of the CNT Act on the allegation that the land was transferred by way of mortgage in 1960 fraudulently. The petitioner filed show cause stating, inter alia, that the land was not the raiyati land, rather, a non-agricultural land in which he constructed building and has been coming in possession of the same for more than 40 years. Respondent No. 3, special Officer, passed order for restoration of the land in favour of respondent No. 4. The petitioner preferred appeal before the Deputy Commissioner, Ranchi which was also dismissed. The petitioner then preferred revision before the Commissioner, South Chotanagpur Division, Ranchi which was also dismissed and the order of restoration was confirmed. 3. Mr. A.K. Sahani, learned Counsel appearing on behalf of the petitioner assailed the impugned orders on the ground that the respondents have not at all considered the admitted case of the parties that the petitioner constructed building and has been coming in possession of the land for more than 40 years. Learned Counsel submitted that the respondents-authorities have committed serious errors of law in not considering the proviso to Sub-section (3) of Section 71 A of the CNT Act and instead of validating the transfer, order of restoration was passed. 4. On the other hand, Mr. Jai Prakash, learned Counsel appearing for respondent No. 4 submitted that admittedly the land was recorded in the R.S. records of rights in the name of Soma Oraon son of Tokro Oraon. Learned Counsel submitted that the documents submitted by the petitioner did not establish that substantial structure was constructed on the land in question before 1969 and so the petitioner cannot get the benefits of the second proviso of Section 71 A of the CNT Act. 5. From perusal of the impugned orders it appears that the petitioner had filed photocopy of a sada Hukumnama dated 5.11.1949 granted by a raiyat in respect of the land in question. The petitioner also filed electric bills, municipal tax receipts for the years 1989 onwards. The appellate authority disbelieved the Hukumnama on the ground that how a raiyat can grant Hukumnama in favour of another raiyat. The appellate authority further came to a finding that the land in question was transferred after 1969 in contravention of the provisions of Sections 46 and 49 of the CNT Act. 6. The Commissioner, in revision, held that prima facie the alleged transfer was made in contravention of the provisions of CNT Act without obtaining permission of the Deputy Commissioner and dismissed the revision at the admission stage. 7. The petitioner claims title and possession over the land on the basis of sada Hukumnama alleged to have been granted to him in 1949. The appellate authority rightly held that raiyat cannot grant Hukumnama in favour of another person. It is the landlord who had the power before vesting of the estates, under the Bihar Land Reforms Act, to issue Hukumnama and settle the land with the raiyats. The petitioner filed before the courts below the electric bills and municipal tax receipts from 1989 onwards which is the only evidence to show that some structure was constructed over the land. There is no substantial and cogent evidence to establish that a pucca building or structure was constructed in 1960 over the land in question. The restoration application was filed within 30 years from the date of dispossession. The respondents-authorities, therefore, rightly held that proviso to Section 71 A of the said Act for grant of compensation is not applicable. I do not find any illegality or infirmity in the orders passed by the respondents-authorities. 8. For the aforesaid reasons, there is no merit in this writ application which is, accordingly, dismissed.
(2.) The statutory provision relevant in this case is Section 71A of the Chotanagpur Tenancy Act, 1908 which is also being reproduced in its entirety for ready reference: 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-Kattidar or 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 mater, 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, re-settle 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: 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.
(3.) It is not disputed that the present case falls within the mischief of the main provision of Section 71A of the Act. The appellant is seeking the protection of exception carved out by the second proviso to the aforesaid Section of 71A of the Act.;