- (1.) BY the Court. -The petitioner, by way of filing the present petition under Article 226 of the Constitution of India, has prayed for quashing and setting aside the order dated 3.10.2005 (Annexure -8) passed by the Commissioner, South Chotanagpur Division, Ranchi in SAR Revision No. 296/ 1997, whereby, the learned Commissioner allowed the revision and thereby set aside the order dated 26.3.1997 passed by respondent No.3 in SAR Appeal No. 657R 15/1996 97.
(2.) HEARD the learned counsel for the petitioner as well as the learned counsel for the State. None appears on behalf of private respondent No. 5 though the notice was duly served. It appears that the land in question has been transferred after taking permission of the Deputy Commissioner, Ranchi in Misc. Case No. 9R8 II of 1958 -59 vide order dated 13.6.1959. The land in question has been transferred after taking due permission from the Deputy Commissioner and, therefore, the view expressed by the learned Dy. Commissioner in its order dated 26.3.1997 that the learned Special Officer SAR is not a competent authority to annul the transfer and only the State Government is the competent authority to do so and that to within a period of 12 years from the date of transfer is sustainable in the eyes of law. It further appears that the view taken by the Special Officer as well as the Dy. Commissioner, Ranchi is in consonance with the provision of Chota Nagpur Tenancy Acts. However, without considering the legal proposition, the learned Commissioner, South Chota Nagpur Division, Ranchi in SAR Revision No. 296 of 1997 passed an order dated 3.10.2005 and thereby allowed the revision and reverse the previous order passed by the learned Dy. Commissioner. The provision contained in Section 49 (5) is relevant for the purpose of deciding the present case and, therefore, the same is reproduced herein below. "49. Transfer of Occupancy -Holding or Bhuinhari -Tenure for certain purposes. - ( 1).............. (2) ............. (3) .............. (4) ............... (5) The State Government may, at any time within a period of twelve years from the date on which written consent is given by the Deputy Commissioner in regard to the transfer of any holding or part thereof belonging to an occupancy -raiyat, who is a member of the Scheduled Tribes either on its own motion or on an application made to it in this behalf set aside such written consent and annul the transfer, if after holding an inquiry in the prescribed manner and after giving reasonable opportunity to the parties concerned to be heard it finds that the consent had been obtained in contravention of the provisions of sub -sections (1) and (2) by mis -representation or fraud, and in case any holding or part thereof has been transferred on the basis of such written consent direct the Deputy Commissioner to take further necessary action under Clause C of sub -section (4 -A) of Section 46.
(3.) LEARNED counsel for the petitioner has referred to and relied upon the judgment reported in 1990 BLT 352, Sri. Rajendra Nath Kapoor v. The State of Bihar and others. It has been very specifically held in the said judgment that the scope of Section 71 -A and 49(5) are completely different. The former speaks about fraud on the transferor -raiyat whereas, the latter speaks about misrepresentation or fraud on the Deputy Commissioner. In Section 49(5) the reference is to sub -sections (1) and (2) of Section 49 whereas in Section 71 -A, Section 46 has been specifically mentioned. It is a general rule of interpretation of statues that special provision will over ride the general provision. When there is specific provision for annulling transfer made with consent of the Deputy Commissioner, recourse must be had to that an application under the general provision, i.e. under Section 71 -A of the Act is barred. Moreover, as notice, above the form is also different. The same is also applicable to the facts and circumstances of the present case.;