Dhirendra Rathod @ Dhirendra ... vs The State Of Jharkhand & Others
2022 Latest Caselaw 2260 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Civil Writ Jurisdiction)
                      W.P.(C) No. 4656 of 2008
                              ........

Dhirendra Rathod @ Dhirendra Lavji Rathod ..... Petitioner Versus The State of Jharkhand & Others ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioner                        : Mr. Indrajit Sinha, Advocate
                                          : Mr. Ankit Vishal, Advocate.
For the Respondents /State                : Mr. Sreenu Garapati, S.C.-III
                                            Mr. Rishi Raj Verma, A.C. to S.C.-III
For the Respondent No.5                    : Mr. Bhaskar Trivedi, Advocate.
                                  ..........
11/27.06.2022.
      Heard, learned counsel for the parties.

Learned counsel for the petitioner, Mr. Indrajit Sinha assisted by learned counsel, Mr. Ankit Vishal has submitted, that writ petition has been filed against the order dated 05.09.2008 passed by the Additional Collector, Ranchi in S.A.R. Appeal No.54/R-15 of 2008 and order dated 10.06.2008 passed by the Special Officer, S.A.R., Ranchi in S.A.R. Case No.715/2005-2006, which are contrary to the order passed by this Hon'ble Court in W.P.(C) No.1014/2006 (Dhirendra Rathod Vs. The Sate of Jharkhnad & Others) in earlier proceeding of the petitioner (brought on record as Annexure-3 to the writ petition) in terms of order dated 13.06.2006 , which read as follows:-

"According to the petitioner the second proceeding under section 71A of the Chotanagpur Tenancy Act 1908 (hereinafter referred to as the Act) at the instance of 3rd respondent is not maintainable. Earlier in respect to the same land a petition under section 71 A of the Act was preferred by the mother of the 3rd respondent, Smt. Salo Devi, which was registered as S.A.R. No.4 of 1993-94 for restoration of the land comprising within R.S. Plot no.645 R.S. Khata no.200, Thana no.196 of Mouja Kokar, district Ranchi, measuring an area of 96 decimals and in pursuance of the order passed by the Special Officer, the compensation amount of Rs. 1,92,000/-(One lakh and Ninety two thousand) in terms of the provisions of section 71A of the Act was deposited by the petitioner's mother, which was accepted by the mother of the 3 rd respondent. Now the son has filed the second petition for restoration of the same very land.

As it appears that a case at the instance of 3rd respondent has already been registered i.e. S.A.R. Case No.715 of 2005-06, instead of giving any finding on merit of the case, the petitioner is given liberty to raise all the issues before the concerned special officer. If any such objection is raised by the petitioner, the competent authority will decide the same as preliminary issue as to whether in the facts and circumstances of the case the petition under section 71A of the Act at the instance of 3 rd respondent (son of late Salo Devi) is maintainable or not.

It is expected that the competent authority will decide the issues within two months from the date of receipt / production of a copy of this order after noticing and hearing the 3rd respondent.

The writ petition stands disposed of with the aforesaid direction and observation."

Learned counsel for the petitioner has further submitted, that though the revision is maintainable against such order, but under the fact and circumstances, the writ petition has been filed before this Court, which may be considered by this Hon'ble Court.

Learned counsel for the petitioner has further submitted, that facts of the case are that 96 decimals of land of R.S. Khata No.200 and R.S. Plot No.645 of Village- Kokar, P.O. & P.S., Sadar, District- Ranchi was recorded in the Revisional Survey Record of Rights in the name of Bagru Munda, son of Leta Munda, who has sold the land through registered sale deed to one Laxmi Bai Rathor, the mother of the petitioner. The purchaser Laxmi Bai Rathor came and continued in peaceful possession of the same. The mother of the petitioner has also taken chhaparbandi right from the superior landlord and paid chhaparbandi rent, since the date of purchase and thus constructed building on the aforesaid land where she is residing with her family and is also running a factory for manufacturing cement ventilator etc. The said Laxmi Bai Rathor's right, title and interest has been upheld and confirmed in Title Suit No. 242/1959 filed by her against Daundo Munda @ Budhu Munda, the only son of the said recorded tenant. In the said suit, on the basis of compromise petition duly signed by both the parties a compromise decree was drawn and signed. Thereafter, there was a family settlement on 01.11.1975 between Laxmi Bai Rathor and her son, i.e. petitioner in a Partition Suit No.106/1989, which was decreed on the basis of the compromise between the parties and they separately got half share each in the said land.

Subsequent thereto, Salo Devi (the mother of respondent No.5), wife of late Tunu Munda filed a case under Section 71A of the Chotanagpur Tenancy Act, which was registered as S.A.R. Case No.4 of 1993-94 against the said Laxmi Bai Rathor claiming herself to be great grand daughter-in-law of the said recorded tenant Bagru Munda.

Learned counsel for the petitioner has further submitted, that said Salo Devi is none else, but mother of Shri Dhiraj Munda, son of late Tunu

Munda (Respondent No.5 of the present writ petition).

S.A.R. Case No.04/1993-1994 was contested by Laxmi Bai Rathor and her son before the Special Officer, S.A.R. Court, Ranchi, who passed an order under the proviso (ii) to Section 71 A of the Chotanagpur Tenancy Act, directing the petitioner and his mother to pay compensation of Rs.1,92,000/- to said Salo Devi, which was duly received by Salo Devi as compensation amount, which is apparent from order-sheets dated 02.02.1995, 15.02.1995, 15.03.1995 and 25.03.1995, the order-sheets have been brought on record as Annexure-2 to the writ petition.

Learned counsel for the petitioner has thus submitted, that once a provisions under Section 71A of the Chotanagpur Tenancy Act has been availed by one of the recorded tenant, whether legal heir has jurisdiction to invoke the said provision again and again when mother has already taken compensation.

Learned counsel for the petitioner has further submitted, that it is unfortunate that Special Officer, Scheduled Area Regulations are not abiding the orders passed by the Apex Court, whereby limitation has been emphasized and thus cases are being admitted even today and social harmony are being disturbed.

To buttress this arguments, learned counsel for the petitioner has relied upon the judgment passed by Hon'ble Patna High Court (Ranchi Bench) in the case of Md. Salimuddin @ Dhaiba Khan Vs. Commissioner, South Chotanagpur Division, Ranchi in C.W.J.C. No.1885 of 1986(R) reported in (1993) 1 PLJR 14. Paras-11 to 16 of which may profitably be quoted hereunder on the point of limitation and principle of Res-Judicata:-

"11. The respondent no.1 has clearly erred in holding that despite the orders passed by the predecessor in office of the respondent no.3 in rejecting the successive applications filed by the respondent no.4 and others, would not be barred under the principle of res-judicata.

12. It is now well known by various decisions of this Court that the principles of res judicata would apply in a proceeding under Section 71A of the Chotanagpur Tenancy Act.

13. Reference in this connection may be made to Ram Chandra Sahu V. Sate of Bihar, reported in 1989 BLT 482 : 1989 PLJR 604 and in Dhananjay Mandal Suri V. The State of Bihar, reported in 1990 PLJR 633.

14. The respondent no.4, therefore, is not correct in holding that the principles of res judicata would have no application in a case where the earlier decision was erroneous.

15. Further, in view of the amendments made in Articles 64 and 65 of the Limitation Act, 1963 effected by reason of the provisions of Schedule Area Regulation 1969, the period of limitation for filing such an application would be 30 years.

16. Any application filed after the period of limitation will be barred. The third proviso to Section 71A of the Chotanagpur Tenancy Act merely postulates that in a case where a person has acquired title by adverse possession, recourse of the said provision may be taken if the conditions precedent therefor are satisfied."

Learned counsel for the petitioner has further relied upon the judgment passed by Hon'ble Division Bench of this Court, in the case of Gadia Oraon & 3 Ors. Vs. State of Jharkhand & 6 Ors. reported in (2003) 4 JLJR 618(HC) in L.P.A. No.425 of 2001. Paras-6, 7 & 8 of which may profitably be quoted hereunder:-

"6. The learned single Judge observed that the writ-petitioners were fighting under the same title and after the Commissioner held that the subsequent restoration application in the year 1991 was barred by principle of res-judicata, there was no occasion to interfere with the said order under Article 226 of the Constitution of India.

7. The first court and the statutory appellate court both erred in law in entertaining the second restoration application after a lapse of 17 years, when the first such application filed by the recorded tenant himself had been rejected and the said rejection order in course of time, in the absence of any appeal had already become final.

8. We, therefore, find no reason to interfere with the impugned orders of the Commissioner as well as the learned Single Judge. This appeal is dismissed. No order as to costs."

Learned counsel for the petitioner has further placed reliance upon the judgment passed by Hon'ble Apex Court, in the case of Situ Sahu and Others Vs. State of Jharkhand and Others reported in (2004) 8 SCC 340, Paras-11, 14, 15 & 16, which may profitably be quoted hereunder:-

"11. We are, therefore, of the view that the use of the words "at any time" in section 71A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act viz. to prevent inroads upon the rights of the ignorant, illiterate and backward citizens. Thus, where the Deputy Commissioner chooses to exercise his power under Section 71A it would be futile to contend that the period of limitation under Limitation Act has expired. The period of limitation under the Limitation Act is intended to bar suits brought in civil courts where the party himself chooses to exercise his right of seeking restoration of immovable property. But, where, for socio-economic reasons, the party may not even be aware of his own rights, the legislature has stepped in by making an officer of the State responsible for doing social justice by clothing him with sufficient power. However, even such power cannot be exercised after an unreasonably long time during which third party interests might have come into effect. Thus, the test is not whether the period of limitation prescribed in the Act of 1963 had expired, but whether the power under Section 71A was sought to be exercised after unreasonable delay.

14. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (supra), the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (supra) which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies.

15. In the result, therefore, we are of the view that the Special Officer ought not to have exercised his powers under Section 71A of the Act after such an unreasonable long period of time, in the facts and circumstances of the case brought to light.

16. The appellants succeed. The impugned judgment of the High Court and the impugned judgments of the authorities below are all set aside and the application for restoration made by the fifth respondent being SAR 415/77-78 is dismissed."

Learned counsel for the petitioner has thus submitted, that this proceeding is not only hit by principle of res-judicata, rather also hit by principle of limitation.

Learned counsel for the petitioner has further submitted that the order attains finality in SAR Case No.4 of 1993-94 by accepting the compensation of Rs.1,92,000/- and the same remain unchallenged by the Salo Devi or her son and a fresh proceeding under Section 71A of the CNT Act has been registered by son of Salo Devi vide SAR Case No.715 of 2005-06 without assailing the earlier order passed in SAR Case No.4 of 1993-94 on the ground that it was coercive and not binding. The same has never been assailed in SAR Case No.715 of 2005-06, which was disposed of on 10.06.2008, but the learned appellate court has suo moto declared the order dated 08.11.1994 passed in SAR Case No.4 of 1993-94 to be unsustainable in the eyes of law and quashed the same by impugned order dated 05.09.2008, passed in SAR Appeal No.54/R-15 of 2008-09, which was against the order dated 10.06.2008 passed in SAR Case No.715 of 2005-06 passed by Special Officer, Ranchi, which attains finality after

acceptance of compensation amount by mother of respondent No.5.

Learned counsel for the petitioner has further submitted, that if the impugned orders are allowed to sustain, it means that every generation of the recorded tenant can invoke the provision of Section 71 A of the CNT Act, as such, impugned orders are bad in law and fit to be set aside.

Learned counsel for the petitioner has further submitted in this regard that the respondent-State has filed counter-affidavit on 14.11.2008, but has not taken any ground regarding maintainability of the writ petition. The private-respondent No.5 has also not challenged the maintainability of the writ petition in his counter-affidavit.

Learned counsel for the petitioner has further submitted, that writ petition cannot be dismissed on the ground of availability of alternate remedy as approx 14 years have elapsed, since the filing of the writ petition, in view of the judgment passed by the Apex Court in the case of Durga Enterprises (P) Ltd. and Another vs. Principal Secretary, Government of U.P. and Others, reported in (2004) 13 SCC 665 and also in view of the judgment passed by the Apex Court in the case of Dr. Bal Krishna Agarwal vs. State of U.P. and Others, reported in (1995) 1 SCC 614, para 10 of which may profitably be quoted hereunder:-

"10. Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non- suited the applicant on the ground of availability of an alternate remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondent no.4 and 5. We may, in this context, mention that respondent 4 has already retired in January 1994."

Learned counsel for the respondent-State, Mr. Sreenu Garapati, SC-

III assisted by learned counsel, Mr. Rishi Raj Verma has submitted that there is alternate remedy to the petitioner to file revision before the Commissioner, as such, writ petition may be dismissed.

Learned counsel for the respondent no.5, Mr. Bhaskar Trivedi has submitted that there is alternate remedy of revision, as such, writ petition may be dismissed.

Considering the rival submissions of the parties, looking into the facts and circumstances of the case, it is unfortunate that Section 71A of the CNT Act has been invoked by respondent no.5 without assailing the order dated 28.11.1994 passed by the Special Officer, Schedule Area Regulation in SAR Case No.4 of 1993-94 whereby the compensation has been paid to the mother, Salo Devi. The respondent no.5 has never assailed the order on the ground that Salo Devi was never her mother or Salo Devi has been impersonated rather admitting that mother has accepted the same, even then the provision of Section 71 A of the CNT Act has been invoked by respondent no.5 (Shri Dhiraj Munda).

This Court is conscious of the judgment passed by the Apex Court where under the provision of Section 71 A of the CNT Act, the principle of res-judicata and principal of limitation have been decided by the Apex Court and if such thing is allowed to sustain, it means that Section 71A of the CNT Act can be invoked by all generations independent of the previous proceedings, which cannot be allowed under the law.

Under the aforesaid circumstances and particularly in the facts and circumstances of the present case, this Court exercise the power under Article 226 of the Constitution of India to entertain such application, though alternate remedy is available before the Commissioner, but since such facts are there, which necessitated this Court to entertain such application as principle of res-judicata as well as principle of limitation have not been considered by both the Courts and it amounts to miscarriage of the justice by the learned appellate court, who has set aside the earlier order without being assailed before him in suo moto, which is not permissible under the law.

Accordingly, since the appellate court has no jurisdiction to set aside the order, which was not assailed before him passed in S.A.R. Case No.04 of 1993-94 to declare it to be unsustainable as the appellate court has completely missed the principle of res-judicata and also the principle

of limitation as well as direction passed by Co-ordinate Bench in W.P.(C) No. 1014/2006, thus committed an error.

Accordingly, both the orders passed in SAR Case No.715 of 2005- 06 dated 10.06.2008 passed by Special Officer, SAR Court, Ranchi as well as order dated 05.09.2008 passed in SAR Appeal No.54/R- 15 of 2008-09 passed by the Additional Collector, Ranchi as appellate court are hereby set aside and quashed.

Consequent to this, the Deputy Commissioner, Ranchi is directed to ensure that petitioner must be granted rent receipt of the aforesaid land, so as to minimize the litigation.

Accordingly, the instant writ petition is allowed. I.A. No. 2775/2008 stands closed.

(Kailash Prasad Deo, J.) Jay/