- (1.) IN the instant writ petition the petitioners pray for issuance of an appropriate writ, rule, order or direction for quashing the order dated 26.8.2003 passed by the Commissioner, North Chotanagpur Division, Hazaribagh in Land Restoration Revision Case No.117 of 2001 under the provision of Section -46(4 A) of the C.N.T. Act contained in annexure -9 to the writ application by which the respondent No.2 has allowed the revision filed by the respondent Nos.5 to 12 and set aside the order dated 3.10.2001 passed by the Additional Collector, Hazaribagh in Restoration Appeal No.117 of 2001 dismissing the appeal filed by the respondent Nos.5 to 12 and order has been passed for restoration of 7.99 acres of land out of plot Nos.133, 153, 355, 652, 965, 966, 1272, 1273, 1274, 1276, 1277, 1278, 1279, 1282, 1819 and 60 of Khata No.76 situated at village Pali, P.S. Patratu, district -Hazaribagh and for such other relief or reliefs to which the petitioners are legally entitled to.
(2.) THE facts, in brief, are stated as under: - The land in question relates to khata No.76 of different plots measuring an area of 7.99 acres situated at village Pali, district -Hazaribagh, now Ramgarh, which was previously owned and possessed by the ex -landlord Ramgarh Raj of wards and encumbered estate. It appears that the ex -landlord made raiyati settlements of land measuring 1.86 decimals from the aforesaid plot in the name of Kaushalya Devi, the mother of the petitioner and the land measuring about 4.13 and half acres of the aforesaid khata settled in the name of Chandra Mohan Singh, father of the petitioner by virtue of the customary Hukumnama in the year 1941 coupled with the grant of rent receipts. According to the learned counsel for the petitioners the aforementioned lands were made cultivable by the settlees and they got their name mutated in the office of the State and further they paid the rent receipts. It has also been stated that the land in question was recorded in the name of father and mother of the petitioner herein in the Bujharat register showing the possession of the aforesaid land in question. Thereafter the mother of the present private respondent No.5 to 8 namely Rabni Devi filed a land restoration case No.11/1977 -78 in the Court of Land Reforms Deputy Collector, Ramgarh against the father of the present petitioners claiming restoration of the total land in question to the extent of 7.99 decimals. The L.R.D.C. vide its order dated 27.01.1978 dismissed the claim for restoration. No appeal was filed against this order, instead after a lapse of nearly 10 years another restoration case was preferred by the mother of the respondent No.5 to 8 once again vide restoration case No.311 of 1986 in the Court of Executive Magistrate -cum -Special Officer, Hazaribagh, as it then was against the father of the petitioners. The learned Executive Magistrate vide its order dated 02.12.1988 dismissed the restoration case. I am informed that no appeal was preferred against this order as well. It appears that the third restoration case was filed by the present private respondent No.5 to 8 who are the sons of Rabni Devi who had earlier preferred the two aforesaid restoration case. A report was called for by the Halka Karmachari and as per his report he submitted that the petitioners were in possession of the land in question and finally vide order dated 09.09.1997 after considering the report and the entire case the restoration application was dismissed by the D.C.L.R. Being aggrieved respondent No.5 to 8 preferred a restoration appeal No.1/99 before the Additional Collector, Hazaribagh which was also dismissed vide order dated 3.10.2001 pursuant thereto a revision case No.117/01 was filed by the private respondent Nos.5 to 12. The learned revisional authority i.e. the Commissioner vide its impugned order dated 26.08.2003 allowed the revision setting aside the order passed by the lower two authorities and restored the land in favour of private respondent Nos.5 to 12 holding that the transfer was void ab -initio, illegal and without jurisdiction. The present writ petition is preferred challenging the aforesaid impugned order passed by the revisional authority.
(3.) The main contention raised by the learned counsel for the petitioner Sri Amar Kumar Sinha is that the revisional authority i.e. the Commissioner has committed error apparent of facts and law. The first ground raised is that the third restoration case preferred by the sons was barred by resjudicata and the reasoning of the Commissioner that since the same has been preferred by the sons, the parties are different does not stand to reason. The second issue raised is that the application for restoration is barred by limitation as contemplated under Section 46 (4A) of the Act. The counsel for the petitioner further submits that the reasoning of the Revisional Authority that in absence of any permission of the Dy. Commissioner the transfer of raiyati land in favour of the Zamindar was illegal is also not sustainable in the eyes of law for the sole reason that the amendment came into effect only on 5.1.1948 whereas the settlement and transfer took place in 1941 itself and the same cannot apply retrospectively. ;