- (1.) HEARD both sides. The prayer in the writ petition filed by Bharat Coking Coal Ltd. and its Area General Manager, is for the issue a writ of certiorari to quash the communication sent by the Deputy Commissioner cum District Registrar, Dhanbad calling upon the first petitioner not to purchase any raiyati piece of land without permission as required under Section 49 of the Chotanagpur Tenancy Act and calling for certain details regarding lands purchased by the first petitioner and practically, for a declaration that the sale deeds executed by persons other than occupancy raiyats belonging to the Scheduled Tribes and Scheduled Castes or Backward community, are not hit by Sections 46 and 49 of the Chotanagpur Tenancy Act and for other consequential reliefs. According to the petitioners, in a case, where the occupancy raiyat did not belong to the Scheduled Tribes, Scheduled Castes or Backward communities the sale is not hit by Section 46 of the Act, specially in the context of further proviso (d) to Section 46(1) of the Act. It is further contended that the Authority under the Act has no power, acting under Section 49 of the Act to impose a condition that the purchasers should provide employment to the occupancy raiyat, the vendor or a member of his family. It is also contended that it could not be insisted upon that the transfer should be only for the price as fixed by the Government. Learned counsel for the petitioner, in support of his contentions, relied on a decision of this Court in Bharat Coking Coal Ltd. v. State of Bihar and Ors., 1999(3) PLJR 15.
(2.) THE learned Government Pleader appearing on behalf of the respondents submitted that when a sale was by an occupancy raiyat as defined in the Chotanagpur Tenancy Act and the sale is for a manufacturing or minining purpose, Section 49 of the Act is attracted. It was immaterial whether the transferor belonged to the Scheduled Caste, Scheduled Tribe or Backward community. Every transfer had to have the clearance of the Deputy Commissioner in terms of Section 49 of the Act. Counsel submitted that the decision relied on by the learned counsel for the petitioner does not lay down the correct law and requires reconsideration. We find that this is a case where occupancy raiyats as defined in the Chotanagpur Tenancy Act are selling their occupancy holdings or the part thereof to the first petitioner -Company for the purpose of mining. Section 46 of the Act contains a restriction on the power of transfer by an occupancy raiyat of his raiyati holding. But Clause (d) of the further proviso to Sub -section (1) Section 46 indicates that any occupancy raiyat who is not a member of a Scheduled Caste, Scheduled Tribe or Backward class, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person. In other words, further proviso (d) to Section 46 (1) of the Act takes out of the clutches of Section 46(1), transfers by occupancy raiyats who are not members of the Scheduled Tribe, Scheduled Caste or Backward class. The contention of learned counsel for the petitioners that if the sale is by an occupancy raiyat who does not belong to any of the three categories referred to in Section 46 of the Act, Section 46 may have no application, may be correct. But what we find is that in a case where the sale is by an occupancy raiyat for a notified or for a mining purpose, the said transaction is seen to be hit by Section 49 of the Act. We may notice that Section 49 starts with a non -obstante clause and provides that notwithstanding anything contained in Sections 46, 47 and 48, a transfer for mining or any other purpose notified by the Government, shall be subject to that provision. Section 49(2) imposes a restriction, in that case, on the transferee by barring the transferee from using the land for any purpose except for which it was transferred. It is also provided that every such transfer, shall be made by a registered deed and before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained to the terms of the deed and to the transfer. There is a further provision enabling the Deputy Commissioner to satisfy himself that the transfer is for an adequate price. It is, therefore, clear that a sale by an occupancy raiyat, whether he is of a Scheduled Caste, Scheduled Tribe or Backward community or otherwise, if it is of land for mining or a notified purpose, would be hit by Section 49 of the Act. Once a transfer is hit by Section 49 of the Act, it is obvious that the conditions imposed by Section 49 relating to the use by the transferee provided for in Sub -section (2), in relation to the prior permission in terms of Sub -section (3) of Section 49 of the Act and in appropriate cases based on the order that may be made by the Deputy Commissioner regarding the adequate compensation payable by the transferee have to be complied with. These restrictions are automatically attracted in cases of sales of occupancy rights. Therefore, it is not possible to accept the argument canvassed on behalf of the petitioners that they are not liable to seek the permission contemplated by Section 49 of the Chotanagpur Tenancy Act. Of course, under Section 49 of the Act, the Deputy Commissioner does not have the power to say at what price the occupancy rights should be sold. That may be within the purview of the authority under the Registration Act. The power that the authority here has is to ensure that the provisions of the Act are not violated. It cannot be said that there is any infirmity in the position adopted in Annexures -2 and 4 that are sought to be challenged by the petitioners.
(3.) BUT we find considerable force in the contention of learned counsel for the petitioners that the condition imposed by the Deputy Commissioner that the purchaser must provide employment to the transferor or a member of his family, is without any legal backing. The said direction is beyond the purview of the permission contemplated under Section 49 of the Act. We are respectively in agreement with the ratio of the decision in Bharat Coking Coal Ltd. v. State of Bihar, 1999 (3) PLJR 15 in that regard. Therein, our learned brother has noticed the decision of the Supreme Court in Butu Prasad Kumhar and Ors. v. Steel Authority of India Ltd. and Ors. (1995) Supp (2) SCC 225. We see no reason to disagree with the view adopted by our learned brother in that decision. Therefore, to the extent the Deputy Commissioner has directed that the purchaser should provide employment to the vendor or a member of the family, the same is found to be illegal and without jurisdiction. To that extent the communication issued by the Deputy Commissioner requires to be interfered with:;