Machindra Sahu vs The State Of Jharkhand
2023 Latest Caselaw 1400 Jhar

                          W.P (C) No. 2466 of 2017

In the matter of an application under Article 226 of the Constitution of India
                               --

1.Machindra Sahu

2. Jaglal Sahu

--- Petitioners Versus

1. The State of Jharkhand.

2. The Commissioner, South Chotanagpur Division, Ranchi

3. The Deputy Commissioner, Ranchi

4. The Additional Commissioner, Ranchi

5. The Special Officer, Scheduled Area Regulation, Ranchi

6. Agnu Munda

7. Etwa Munda --- Respondents

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For the Petitioners : Mrs. Archana Kumari Singh, Adv. For the Respondent-State : Mr. Jayant Franklin Toppo, G.A.-V Mr. Amrit Raj Kisku, A.C to G.A.-V For the Respondent Nos. 6 & 7 : Mr. Ram Prakash Singh, Advocate PRESENT:

HONBLE MR. JUSTICE RAJESH KUMAR

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RESERVED ON 20.03.2023 PRONOUNCED ON. 29/03/2023

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Heard learned counsel for the parties.

2. The present writ petition has been filed for quashing the order dated 01.03.2016 (Annexure-3) passed by the Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision Case No. 153 of 1985, whereby the revision filed by the petitioners has been dismissed and the order dated 18.07.1985 passed by the Additional Commissioner, Ranch in S.A.R. Appeal Case No. 133/1980-81 and the order dated 20.06.1980 passed by the Special Officer in S.A.R. Case No. 84/1979-80 was confirmed.

3. The S.A.R Case has been instituted by the predecessor of the respondent nos. 6 & 7 in the year 1979-80, which has been numbered as S.A.R.Case No. 84/1979-80. In the said S.A.R Case the order dated 20.06.1980 has been passed in favour of predecessor of the respondent nos. 6 & 7 and the land in question has been given to the predecessor of respondent nos. 6 & 7. The description of the land is as under:

                   Plot No. 712                  ---Area       ----12 Decimals
                   Plot No. 1379                 ---Area       ----27 Decimals
                   Plot No. 1405                 ---Area       ----36 Decimals
                   Plot No. 1410                 ---Area       ----28 Decimals



               Plot No. 1403               ---Area         ----17 Decimals
                                           -----------------------------------
                                           Total Areas ---1.20 Acres

4. It appears that being aggrieved, an appeal has been filed, which has been heard by Additional Collector, Ranchi and has been numbered as S.A.R Appeal Case No. 133/1980-81. This appeal has been dismissed for default vide order dated 18.07.1985 as the appellant has not participated in the proceedings.

5. It further appears that against the said order, a revision has been preferred before the Commissioner, South Chhotanagpur Division, Ranchi which has been numbered as S.A.R Revision No. 153 of 1985 and that revision has also been dismissed vide order dated 01.03.2016 due to non-participation of the revisionist.

6. The present writ petitioners have approached this Court by filing C.W.J.C No. 261 of 1998 (R), which has been allowed vide order dated 10.08.1999 and remanded the matter before the Commissioner, South Chhotanagpur Division, Ranchi for passing afresh order reviving S.A.R Revision No. 153 of 1985.

7. The Commissioner, South Chhotanagpur Division, Ranchi after hearing the parties has passed the impugned order dated 1.3.2016 (Annexure-3) upholding the original order passed by the S.A.R Court. This order has been impugned in the present writ petition.

8. Brief Facts of this case are:

(i) As per the petitioners, the land in question has been surrendered by one Bikhna Munda by registered deed of surrender dated 7.5.1946 to the ex-landlord. By another registered deed dated 27.3.1946, some other plots have also been surrendered in the same Khata No. 105.

(ii) It appears that the ex-landlord has settled the above surrendered land in favour of Jainu Sahu by executing registered Kabuliat dated 19.12.1949 and 14.11.1949 respectively.

(iii) All the transfer is by registered deed.

(iv) Rent receipt has been issued in favour of the petitioners upto 1986.

9. On the basis of above sequence of facts argument has been advanced that once the land has been transacted through a permissible methodology, then it is outside the purview of Section 46 of Chhotanagpur Tenancy Act, 1908 and accordingly S.A.R Court has no jurisdiction under Section 71(A) of the

Chhotanagpur Tenancy Act, 1908. It has been submitted that jurisdiction to the S.A.R. Court comes only when there is transfer of land in violation of Section 46 of the C.N.T. Act. For this purpose, learned counsel for the petitioners has relied upon a judgment passed by this Court in W.P.( C) No. 939 of 2002, which has been disposed of vide order dated 10.08.2017.

10. It has also been submitted by learned counsel for the petitioners that presumption lies in favour of the registered document and the document is more than 60 years and further no factual matrix has been brought on record to suggest that the surrender and settlement was single transaction.

In the above case, the Coordinate Bench of this Court has held that once there is transaction through registered deed then merely on the basis of doubt, it cannot be said that there is violation of Section 46 of the CNT Act. If there is no violation of Section 46 of CNT Act, then the S.A.R Court has no jurisdiction under Section 71(A) of CNT Act.

11. In the case of "Prem Singh Vs. Birbal" reported in (2006) 5 SCC 353, the Hon'ble Supreme Court in Para 27 has held as under:-

"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."

12. Per contra, counsel for the respondent nos. 6 & 7 has advanced the argument that the surrender of the registered deed itself is doubtful and the land belongs to joint family property which has been surrendered by single member of the family is not permissible. Further from perusal of the documents itself suggests that there is no signature or thumb impression.

13. It has also been submitted by learned counsel for the respondent no. 6 & 7 that surrender and settlement is a transfer and if it is violation of Section 46 of the C.N.T Act, the jurisdiction of SAR Court is available under Section 71(A) of the CNT Act. For this purpose, he has relied upon Para-18 of Full Bench judgment reported in 1985 BLJ 557 [Bina Rani Ghosh Vs. Commissioner, South Chota Nagpur Division]. Para-18, thereof is quoted hereinbelow:

"18. Affirming the aforesaid judgments, I would hold that a surrender by a Scheduled Tribe raiyat directly coupled with the subsequent settlement of such land by the landlord would be a transfer within the ambit of section 71A of the Act."

14. Having heard learned counsel for the parties and considering the judgment referred by them, it is evident that a surrender by a Scheduled Tribe raiyat directly coupled with the subsequent settlement of such surrendered land will be a transfer within the ambit of Section 71A of the Act. If, such transfer is impermissible under Section 46 of the C.N.T Act, then S.A.R Court is competent and authorized to restore the said land in favour of Scheduled Tribe, who surrendered the land or any other Tribe of the same police station.

15. But, in the present case, the land in question has been surrendered in the year 1946 that too by a registered sale deed. There is no material to suggest that the present petitioners have any role in surrendering the said land. Further, the said land has been settled by registered sale deed in the year 1949 i.e., after more than 3 years. Again, there is no circumstances or even Time to suggest that it is same transaction.

16. Once the land in question has been surrendered and subsequently it has been settled and all transactions are through registered sale deed and is permissible, then the S.A.R Court to exercise its jurisdiction has to record a finding that it is a same transaction and it is in violation of section 46 of the CNT Act.

17. In the present case, no factual matrix or any circumstances has been brought on record or even discussed by S.A.R Court to suggest that the surrender and settlement was the same transaction. In fact, the only logic has been assigned that the predecessor of respondent nos. 6 & 7, namely, Bikhna Munda was an innocent person and as such the entire transaction is fake. Merely assigning this reason, a transaction conducted through registered deed and through permissible method, cannot be annulled. Any right accrued in favour of a person cannot be taken away merely on the basis of doubt or assigning the reason of innocence.

18. In view of the above discussions, this Court finds that there is no material or circumstances or time frame to suggest that surrender and settlement was the same transaction and it was in violation of Section 46 of C.N.T Act. Thus the impugned order dated 01.03.2016 passed by the Commissioner, South Chhotanagpur Division, Ranchi, in S.A.R. Revision Case No. 153 of 1985, whereby the order dated 18.07.1985 passed by the Additional Commissioner, Ranch in S.A.R. Appeal Case No. 133/1980-81 and the order

dated 20.06.1980 passed by the Special Officer in S.A.R. Case No. 84/1979-80 was confirmed, is hereby set aside. The writ petition stands allowed.

19. Pending I.A also stands disposed of.

(Rajesh Kumar, J) Jharkhand High Court, Ranchi Dated 29./03/2023, jk/NAFR