Jharkhand High Court
Haponmay Murmu vs The Commissioner on 2 May, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
( 2025:JHHC:13296-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 384 of 2021
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Haponmay Murmu, aged about 88 years, Daughter of Late
Dheba Murmu and wife of Bhim Hansda, resident of
Govindpur, Mouza-Lataria, P.O. and P.S. Mahagama, Sub
Division and District-Godda.
... ... Appellant
Versus
1.The Commissioner, Santhal Pargana Division, Dumka,
P.O., P.S. and District-Dumka.
2.The Deputy Commissioner, Dumka, P.O., P.S. and
District-Dumka.
3.The Settlement Officer, Dumka, P.O., P.S. and District -
Dumka.
4.The Charge Officer, Dumka, P.O., P.S. and District -
Dumka.
5.Dewrkar Prasad Jaiswal,
6.Prabhakar Prasad,
7.Sanjay Prasad,
8.Manoj Kumar, Nos. 5 to 8 all sons of Late Jaibir Prasad
Bhagat, residents of Village-Mohanpur, P.O., P.S. and
District-Godda.
9.Binod Jaiswal, son of Late Bishwanath Bhagat,
10.Vikash Jaiswal,
11.Vijay Jaiswal,
12.Rajiv Kumar
No. 9 to 12 all sons of Late Krishnanand Jaiswal,
13.Nawal Kishore, Son of Late Murli Prasad Jaiswal,
14.Phrabhat Kumar, son of Late Murli Prasad Jaiswal,
all residents of Mohanpur, P.O. and P.S. Mahagama,
District-Godda.
15.Narendra Kumar, son of Jaibir Bhagat, resident of
village-Mohanpur, P.O. & P.S. Mahagama, District-Godda.
... ... Respondents
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with
L.P.A. No. 386 of 2021
----
1.Marangmoy Marandi wife of late Khatu Murmu @ Tala
Murmu, aged 55 years
1(a). Marang Babu Murmu aged 35 years (son);
1(b). Tala Kura Murmu, aged 33 years, (son),
1(c). Devi Lal Murmu aged 30 years (son);
1(d). Rajendra Murmu aged 28 years, (son),
1(e). Ramesh Murmu, aged 20 years (son),
all residents of Village- Latariya, P.O. Mohanpur, P.S.
Mahagama, District-Godda.
1(f). Biti Moy Murmu, aged 25 years, wife of Dilip Tudu and
daughter of Late Khatu Murmu @ Tala Murmu, resident of
Soraikata, P.O. and P.S. Basantrai, District-Godda.
2.Tala May Hambram, aged 60 years, W/o Late Hanju
Murmu,
3.Bitaje Murmu, aged 35 years, son of Hanju Murmu,
4.Tala May Hansda, aged about 66 years, W/o Late Mangal
Murmu,
5.Naresh Murmu, aged 48 years, son of Late Mangal
Murmu,
6.Premchand @ Dey Murmu, aged 35 years, S/o Mangal
Murmu,
All residents of Village-Lataria, P.O. Mohanpur, P.S.
Mahagama, District-Godda
... ... Appellants
Versus
1.The Commissioner, Santhal Pargana Division, Dumka,
P.O., P.S. and District-Dumka.
2.The Deputy Commissioner, Dumka, P.O., P.S and District-
Dumka.
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3.The Settlement Officer, Dumka, P.O., P.S and District-
Dumka.
4.The Charge Officer, Dumka, P.O., P.S and District-Dumka.
5.Diwakar Prasad Jaiswal,
6.Prabhakar Prasad,
7.Sanjay Prasad,
8.Manoj Kumar, Nos. 5 to 8 all sons of Late Jaibir Bhagat,
residents of Village-Mohanpur, P.O., P.S. and District-
Godda.
9.Binod Jaiswal, son of Late Bishwanath Bhagat,
10.Vikash Jaiswal,
11.Vijoy Jaiswal,
12.Rajiv Kumar
No. 9 to 12 all sons of Late Krishnanand Jaiswal,
13.Nawal Kishore, Son of Late Murli Prasad Jaiswal,
14.Phrabhat Kumar, son of Late Murli Prasad Jaiswal,
all residents of Mohanpur, P.O. and P.S. Mahagama,
District-Godda.
15.The State of Jharkhand
16.Narendra Kumar, son of Jaibir Bhagat, resident of
village-Mohanpur, P.O. & P.S. Mahagama, District-Godda.
... ... Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Atanu Banerjee, Advocate
For the State : Mr. Ashutosh Anand, AAG III
For Res. No. 1 to 4 : Mr. Rakesh Kr. Shahi, Advocate
For Res. No. 5 to 8 : Mr. Ashish Verma, Advocate
Mr. Manoj Kumar Jha, Advocate
For Res. No. 13 & 14: Mr. Rajesh Lala, Advocate
Mr. Kumar Nishant, Advocate
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C.A.V. on 23.04.2025 Pronounced on 02 / 5/2025
Per Sujit Narayan Prasad, J.
1. Both the appeals have been directed to be tagged
together, as such they have been heard together and is
being disposed of by this common order/judgment.
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Prayer:
2. Both the appeals, under Clause 10 of the Letters
Patent, have been directed against common
order/judgment dated 15.09.2021 passed by learned
Singh Judge in W.P.(C) No. 5118 of 2012 [subject matter
of LPA No. 384 of 2021] and W.P.(C) No. 6675 of 2012
[subject matter of LPA No. 386 of 2021] whereby and
whereunder the writ petitions preferred by the writ
petitioners-appellants have been dismissed declining to
interfere with the order passed by the Commissioner,
Santhal Pargana Division, Dumka.
Factual Aspect:
3. Brief facts of the case, as per the pleading made
in the writ petition is as under:
4. In both the cases, before the writ Court since
common order dated 27.06.2012 passed by learned
Commissioner, Sonthal Pargana Division, Dumka was
under challenge, as such for the sake of convenience,
only the fact involved in one of the writ petitions [WPC
No. 5118 of 2012] is taken herein.
5. It is the case of the writ petitioner-appellant that
as per Sonthal Parganas Settlement Regulation, 1872
(Regulation No. 3 of 1872), for preparation of record of
rights, the Settlement Officers have been given power to
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enquire into landed right under Regulation 12 of the
Regulation, 1872 and records of rights have to be
prepared in the form as prescribed under Regulation 13
of the Regulation, 1872 containing the nature and
instance of each rights and interest held by each class of
occupiers. The procedure for preparation of record of
rights has also been provided in the said Regulation.
After preparation, publication is there under Regulation
24 as per which, after six months of such publication the
record of rights becomes final.
6. Accordingly within the Santhal Parganas, firstly
Wood's Survey & Settlement took place, which was
followed by McPherson Settlement of 1905 and
settlement was concluded in the locality in 1908 and
thereafter Gantzer's survey and settlement came in the
year 1932.
7. Further, Regulation 25(3) of the Regulation, 1872
itself provides that despite final publication of the record
of rights, the same can be reopened during fresh
settlement i.e. during fresh preparation of record of
rights.
8. It is stated that fresh survey and settlement
proceedings for preparation of records of rights under the
said Regulation started and therefore, in terms of
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Regulation 25(3) of the Regulation, 1872 the earlier
entries were entitled to be reopened. Accordingly during
preparation of the records of rights the petitioner filed
objection with respect to the preparation of record of
rights in respect of land comprised within Jamabandi No.
2 measuring 6 Bigha 7 Katha and 14 Dhoors contending
inter alia that the ancestors of the petitioner [who are
appellants herein] namely Fate Manjhi and Sona Manjhi
were the recorded raiyats but the ancestors of the
Respondent No. 5 and 6 had wrongly got their names
entered during the earlier settlement. The same was
registered as Settlement Correction Case No. 311/98. On
being noticed the Respondent No. 5 and 6 appeared and
filed their show cause denying the contention of the
petitioner. The competent authority- the Charge Officer,
Dumka, after hearing the parties vide order dated
21.3.2002 in Settlement Correction Case No. 311/98,
rejected the petitioners' application inter alia on the
ground that the petitioner may approach before the
appropriate court since the dispute relates to the entries
made in McPherson and Gantzer's survey and
settlement.
9. It has further been pleaded that pursuant thereto
the petitioner preferred Settlement Correction Appeal No.
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1/2002-2003 and 02/2002-2003 before the
Commissioner, Santhal Pargana Division, Dumka, which
was allowed and the matter was remanded back to the
Settlement Officer holding that Regulation 25(3) of the
Regulation, 1872 clearly provides that entries made
during the earlier survey and settlement operations can
be reopened during the fresh survey and settlement
proceedings. Accordingly the Settlement Officer was
directed to go into the matter in detail and come to a
conclusion and pass a reasoned order.
10. The said remand order passed by the
Commissioner (Respondent No. 1) was challenged by the
Respondent No. 5 and 6 by filing W.P.(C) No. 4150 of
2006, which was dismissed as withdrawn in terms of
order dated 05.09.2006.
11. In terms of the order of remand, the Charge
Officer/Settlement Officer, Dumka vide order dated
25.07.2008 allowed the Settlement Correction Case No.
126 of 2006 and 127/2006 and directed for correction of
the record of rights.
12. Aggrieved thereof, the respondent no. 5 and 6
preferred R.M.R. No. 67/2008-09 before the
Commissioner, Santhal Pargana Division, Dumka
(Respondent No. 1). However, the Respondent No. 1 by
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terms of his order dated 27.06.2012 allowed the revision
application preferred by the Respondent No. 5 and 6 inter
alia on the ground that the Settlement Officer had
acceded its jurisdiction in passing an order for correction
in McPherson and Gantzer's parcha, against which, the
appellants approached this Court being W.P.(C) No. 5118
of 2012 and W.P.(C) No. 6675 of 2012, which were heard
and dismissed vide common judgment/order
dated15.09.2021, against which, the instant intra-court
appeals have been preferred.
13. It is evident from the factual aspect that the land
in question is being claimed by the appellants on the
ground that there is error in the settlement made by the
Settlement Officer. The issue has been raised initially in
the Settlement Proceeding(s), wherein order of rejection
has been passed against the appellants by the Settlement
Officer, which was challenged before the Commissioner
in Settlement Correction Appeal No. 01 of 2002-03 and
02 of 2002-03 whereby the Commissioner remanded the
matter to Settlement Officer for fresh adjudication.
14. The Settlement Officer has passed detailed order
on 23.07.2008/25.07.2008 in Settlement Correction
Case No. 126 of 2006 in favour of appellant-petitioner.
The said order was again challenged before the
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Commissioner, Sonthal Parganas Division, Dumka which
were registered as RMR No.-67/2008-09 with S.C.A. No.
63/2008-09.
15. The plea was taken by the private respondents
before the Commissioner that the order passed by the
Settlement Officer cannot be said to be proper in view of
the fact that the settlement which was carried out during
McPherson Settlement era and thereafter the Gantzer
Settlement has been carried out, the appellant did not
raise any issue even in the subsequent settlement i.e.,
rather, has raised the issue after lapse of about more
than 85 years since the settlement which was made in
favour of the predecessor-in-interest of the private
respondents, sometimes in the year 1925, wherein the
settlement has been made in favour of the predecessor-
in-interest of the private respondents at the time of
McPherson Settlement wherein jamabandi record has
been created, which stood recorded in the name of Hari
Bhagat, Arjun Bhagat, Chander Bhagat and Dukhan
Bhagat. The McPherson settlement in the locality was
concluded in the year 1908. The objection although was
made being Objection Case No. 768 of 1905 and 766 of
1905 by the predecessor-in-interest of the appellants,
which was decided with a direction to prepare McPherson
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parcha under [Jamabandi] JB No.2 for mouza-Lataria in
the name of the ancestors of private respondents therein.
The ground has been taken that the order so passed in
Objection Case No. 768 of 1905 and 766 of 1905 has not
been questioned even no application was made at the
time of Gantzer‟s Settlement and the appellant sat idle
and all of a sudden objection again was raised by taking
aid of Regulation 25(3) of the Regulation 1872 and under
Section 42 of the SPT Act, 1949. The revisional authority
has taken into consideration the aforesaid aspect of the
matter by holding the decision of the settlement officer to
be excess in his jurisdiction in passing of correction in
McPherson Settlement Purcha and Gantzer Settlement
Purcha, after such a belated stage and accordingly
quashed the said order.
16. The appellant being aggrieved with the order
passed by the revisional authority has filed writ petition
being WPC No. 5118 of 2012 and WPC No. 6675 of 2012.
The ground has been taken by taking aid of Regulation
25(3) of the Regulation, 1872 by agitating the issue that
in view of provision of Regulation 25(3), the objection can
be made at any time since there is no time limit in the
aforesaid provision of raising objection against the
settlement.
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17. The learned Single Judge has disagreed with the
contention raised on behalf of the appellant-writ
petitioner by taking the ground that the objection has
been dealt with in the year 1905 in Settlement Objection
Case No. 766 of 1905 and 768 of 1905 and thereafter the
name was recorded in the name of the predecessor-in-
interest of the private respondents, hence, the issue of
right, title has already been decided. Accordingly, the
writ petitions have been dismissed, which is the subject
matter of present appeal(s).
Submission on behalf of appellant-writ petitioner:
18. Mr. Atanu Banerjee, learned counsel along with
Mr. Durga C. Mishra, learned counsel for the petitioner
has assailed the impugned order on the following
grounds:
I. That the learned Single Judge has not appreciated
the provision of Regulation 25(3) of the SPT
Regulation, 1872 wherein no time limit has been
given to raise the objection against the issue of
settlement.
II. Submission has been made that Regulation 25(3) of
the Regulation, 1872 has purposely been inserted
in order to protect the interest of the local tribal
people living in the areas for whose benefit the
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tenancy law has been created, but this aspect of the
matter has not been considered by learned Single
Judge while passing the impugned order.
III. The order which was passed by the Settlement
Officer dated 25.07.2008 was in favour of the
present appellants, that was passed on
consideration of implication of Regulation 25(3) of
the Regulation 1872, and after giving specific
finding of commission of manipulation ,the said
order was passed. But the Commissioner while
exercising the power of revision has not appreciated
the aforesaid aspect of the matter rather has gone
into the fact that settlement made at the time of
McPherson Settlement and approved in the Gantzer
Settlement is not allowed to be reversed after lapse
of such an inordinate delay.
IV. The learned counsel has taken further ground that
if any manipulation has been made in the
settlement record in order to deprive the
title/possession of the land of the present
appellants, the law is very specific that the fraud
vitiates the very solemnity of the act and the entire
action taken will be vitiated in the eye of law. But
this aspect of the matter has not been taken into
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consideration either by the Commissioner under its
revisionary jurisdiction or by the learned writ
Court.
19. Learned counsel for the appellant based on the
aforesaid ground has submitted that the order passed by
learned Single Judge requires interference.
Submission on behalf of respondents:
20. Per contra, learned counsel for the respondents-
State and respondents-private respondents have taken
the following grounds in defending the order passed by
the learned Single Judge:
I. Submission has been made that there is no
error in the order passed by the revisional
authority since the thoughtful consideration has
been given on the ground of delay of agitating the
issue that too in a case where survey settlement
was made in the year 1925 itself at the
McPherson Settlement and even no objection was
raised at the time of Gantzer‟s Settlement which
was carried out thereafter. The aforesaid aspect of
the matter has been taken into consideration by
the revisional authority, which led the revisional
authority in reversing the order passed by the
settlement officer, which suffers from no error.
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II. The argument of implication of Regulation
25(3) of the Regulation, 1872 is also not come to
aid the appellant on the ground that the objection
was raised on behalf of predecessor-in-interest of
the appellant way back in the year 1905 being
Objection Case No. 768 of 1905 and 766 of 1905,
which has been decided against the appellant but
no appeal has been filed and hence the order
become final and thereafter entry since has been
made as per the McPherson Settlement and that
has been approved by the revenue authority. It
has been submitted that the aforesaid aspect of
the matter has been taken into consideration by
the revisional authority as also by the learned
Single Judge, as such order impugned cannot be
said to suffer from error.
III.The argument so far as it relates to
applicability of Regulation 25(3) of the Regulation,
1872 is concerned, it has been submitted that the
same cannot be said to be applicable after such
an inordinate delay committed by the party,
considering themselves to be aggrieved one, only
on the ground that there is no reference of any
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time period as contained under Regulation 25(3)
of the Regulation 1872.
21. Learned counsel for the respondents, based upon
the aforesaid ground, has submitted that the impugned
order requires no interference by this Court.
Analysis
22. We have heard learned counsel for the parties and
gone through the finding recorded by the Settlement
Officer vide order dated 23.07.2008/25.07.2008 by
which the petition preferred by the appellant was allowed
in Settlement Correction Case No. 126/2006 and
127/2006 and direction was passed for correction of the
record of rights; as also finding recorded in R.M.R. No.
67/2008-09 with S.C.A No. 63 of 2008-09 by the
Commissioner, Santhal Pargana Division, Dumka
(Respondent No. 1) vide order dated 27.06.2012,
preferred by the respondent no. 5 and 6, which was
challenged before the writ Court by filing Writ Petitions
being W.P.(C) No. 5118 of 2012 and W.P.(C) No. 6675 of
2012, which stood dismissed, hence, the instant intra-
court appeal.
23. This Court, on the basis of argument advanced by
the parties and the pleading available on record, is of the
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view that following issues requires consideration for
adjudication of the lis:
I.Whether the objection which has been dealt with
by the revenue authority way back in the year
1905, order passed therein had been accepted for
a period of about 100 years, is it available for the
appellants to re-agitate the said issue again by
taking aid or Regulation 25(3) of the SPT
Regulation, 1872 at the time when the settlement
is being carried out by the State?
II.Whether, in absence of any time limit, under
Regulation 25(3), the party can be allowed to
agitate the issue even after lapse of more than
100 years. Will it not lead to unnecessary
harassment to the third party and is contrary to
the purport of the Limitation Act?
III.Whether the reference of the word „fresh
settlement‟ will be construed to be fresh one or
the settlement which has been made at the first
instance and thereafter the second settlement
made after first one settlement said to be carried
out subsequently?
24. Since all the issues are inter-linked, as such they
are taken up together to be answered.
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25. There is no dispute that the Santhal Parganna
Tenancy (Supplementary Provisions) Act, 1949 [SPT Act,
1949] prior to its enactment in the year 1949, it was by
way of regulation i.e., Sonthal Parganna Settlement
Regulation, 1872 [Regulation 1872].
26. The Sonthal Parganna Settlement Regulation,
1872 has been saved by virtue of Section 3, 4 and 5 of
the Act, 1949, so far the statutory provision as contained
under Regulation 1872 is not in consistent with the Act,
1949. The Regulation, 1872 contained a provision under
Regulation 25(3) for the purpose of issue of settlement by
virtue of publication of the draft and its finalization. The
Said provision as contained under Regulation 25 is
quoted as under:
"25. Record to be final after six months publication.-
(1) After a period of six months from the date of the
publication of the record-of-rights of any village, such
records shall be conclusive proof of the rights and customs
therein recorded, other than the rights mentioned in Section
25-A, except so far as concerns entries in such record
regarding which objections by parties interested may still
be pending in the Original or Appellate Courts, or may still
be open to appeal. (2) Notwithstanding anything contained
in sub-section (1), the Settlement Officer may, at any time
before the settlement is eclared by a Notification in the
Official Gazette to have completed,-(a) inquire into and
correct any material error in such record; and(b) revise any
order or decision passed by himself or by anAssistant
Settlement Officer:
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Provided that no such order or decision shall be so
revisedwhere nay order passed by the Commissioner is
likely to be affected by such revision, or where an appeal
from such order ordecision is pending before the
Commissioner:
Provided, further that no material error shall be
correctedand no decision or order shall be revised, until
reasonable noticehas been given to the parties concerned to
appear and be heard inthe matter.
(3) When a record-of-right has become final, or any
objection to any entry in a record-of-right has been
finally disposed of in the Settlement Courts, and
when all final decisions and orders, including such
as may have been passed on revision as provided in
sub-section (2), have been correctly embodied therein,
such record shall not, until a fresh settlement is
made or a new table of rates and rent-rols are
prepared, be re-opened without the previous sanction
of the State Government.
(4)(a) Notwithstanding anything contained in sub-section(3),
in case of the discovery of material error in any such record
of-right, the Commissioner may by an order in writing direct
that such error shall be corrected in the manner specified in
the order:
Provided that no material error shall be corrected until
reasonable notice has been given to the parties concerned
to appear and to be heard in the matter.
(b) Every order passed by the Commissioner under this sub-
section shall be final and conclusive and shall not be
reopened until a fresh settlement is made or a new table of
rates and rent-rolls is prepared.
(c) The State Government may make rules to regulate the
procedure to be followed in case of the discovery of material
error in any such record-of-right and generally for the
guidance of the Commissioner in the discharge of his
functions under clause (a).
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27. It is evident from Regulation 25 (3) of Regulation,
1872, which is the subject matter as per the argument
advanced on behalf of appellant/writ petitioners, that the
objection has to be raised for the purpose of rectifying
the error committed in the settlement at the time of
carrying out settlement and the same can be adjudicated
at the time of fresh settlement. The purport of the
aforesaid provision is in order to give opportunity to the
claimant to raise the objection in a case where there is
error in the settlement.
28. It is admitted that under Regulation 25(3) there is
no time frame for raising such issues. The said aspect of
the matter has emphatically been argued that in absence
of any time frame under Regulation 25(3), if any error
has been committed during the settlement which can be
raised by the party aggrieved at any time without
consideration of any period to be reasonable one.
29. There is no dispute that under Regulation 25(3)
no time limit has been there but can it be said to be
exercised even after the inordinate delay.
30. It is also admitted fact that law of limitation is not
referred in the Regulation or SPT Act. As such, the issue
of limitation will be applicable or not that is the issue to
be considered herein.
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31. We are not dealing with the issue of limitation
rather we are dealing with the issue to have an
opportunity to agitate the issue said to be within
reasonable period.
32. This Court, in order to consider the aforesaid
aspect of the matter, has thought it proper to provision of
Section 71-A of the Chota Nagpur Tenancy Act, 1908 [in
short „CNT Act, 1908‟] which is similar tenancy provision
formulated for the Chotanagpur region of the State of
Jharkhand whereas the SPT Act, 1949 has been enacted
for the Santhal Parganna Region of the State of
Jharkhand.
33. The original Act of the CNT Act, 1908 has no
provision for restoration of the land.
34. Herein, it would be apt to intent and purport of
the enactment of SPT Act/Regulation and CNT Act. The
main object of the Chota Nagpur Tenancy Act and
Sonthal Pargana Tenancy Act is to protect tribal and
ownership and prevent exploitation by non-tribals. Both
Acts restricts the transfer of tribal land to non-tribals
and provide mechanisms for the restoration of land that
has been illegally or fraudulently transferred. They also
protect community ownership of land and address issues
like land disputes and tenancy rights.
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35. Further, it is admitted fact that the CNT Act has
been enacted to protect the interest of the tribal
population living in the Chotanagpur region wherein the
restriction has been impose in transfer of land belonging
to the tribal population in favour of the non-tribal people
without prior sanction of the D.C., as required under
Section 46 of the CNT Act, 1908. There was no
mechanism of the land being, if land has been
transferred from the tribal to the non-tribal due to non-
compliance of the requirement as stipulated under
Section 46 of the Act, 1908. Hence, the legislation has
been amended and a new provision as Section 71-A has
been inserted by way of Bihar Schedule Area Regulation,
1969.
36. The Section 71-A of the CNT Act, 1908 confers
upon the Deputy Commissioner by opening „at any time‟
if it comes to the notice of the DC that the land of the
tribal has been transferred in favour of non-tribal
without prior sanction of the DC or in violation of any of
the provision of CNT Act, 1908 then the land is to be
restored in favour of the tribal concerned subject to
providing an opportunity of hearing to the affected party.
37. For ready reference, Section 71-A of the CNT Act,
1908 is quoted as under:
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"71A. Power to restore possession to member of the
Scheduled Tribes over land unlawfully transferred.-
If at any time, it comes to the notice of the Deputy
Commissioner that transfer of land belonging to a raiyat [or
a Mundari Khunt Kattidar or a Bhuinhari] who is a member
of the Scheduled Tribes has taken place in contravention of
section 46 [or section 48 or Section 240] or any other
provision of this Act or by any fraudulent method, [including
decrees obtained in suit by fraud and collusion] he may,
after giving reasonable opportunity to the transferee, who is
proposed to be evicted, to show cause and after making
necessary enquiry in the matter, evict the transferee from
such land without payment of compensation and restore it
to the transferor or his heir, or in case the transferor or his
heir is not available or is not willing to agree to such
restoration, re-settle it with another raiyat belonging to the
Scheduled Tribes according to the village custom for the
disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the
date of transfer, constructed any building or structure on
such holding or portion thereof, the Deputy Commissioner
shall, if the transferor is not willing to pay the value of the
same, order the transferee to remove the same within a
period of six months from the date of the order, or within
such extended time not exceeding two years from the date
of the order as the Deputy Commissioner may allow, failing
which the Deputy Commissioner may get such building or
structure removed:
Provided further that where the Deputy Commissioner is
satisfied that the transferee has constructed a substantial
structure or building on such holding or portion thereof
before coming into force of the Bihar Scheduled Areas
Regulation, 1969, he may notwithstanding any other
provisions of the Act, validate such transfer where the
transferee either makes available to the transferor an
alternative holding or portion thereof as the case may be, of
the equivalent value of the vicinity or pays adequate
compensation to be determined by the Deputy
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Commissioner for rehabilitation of the transferor:
Provided also that if after an enquiry the Deputy
Commissioner is satisfied that the transferee has acquired
a title by adverse possession and that the transferred land
should be restored or re-settled, he shall require the
transferor or his heir or another raiyat, as the case may be,
to deposit with the Deputy Commissioner such sum of the
money as may be determined by the Deputy Commissioner
having regard to the amount for which the land was
transferred or the market value of the land, as the case may
be, and the amount of any compensation for improvements
effected to the land which the Deputy Commissioner may
deem fair and equitable."
38. Thus, it is evident that Section 71A of the CNT Act,
1908 begins with the phrase „at any time‟ and
speaks that if it comes to the knowledge of the
District Commissioner concerned that the land has
been transferred without following the statutory
provision, as contained under the Act, 1908, the
Deputy Commissioner will have power to invalidate
such transfer depending upon such exception(s) as
carved out under Proviso to Section 71A of the CNT
Act, 1908.
39. By passage of time, an issue has crept up as to what
would be the term as „at any time‟. The matter
travelled to the Hon‟ble Supreme Court in the case of
Jai Mangal Oraon Vs. Mira Nayak (Smt.) & Ors.
reported in [(2000) 5 SCC 141], wherein the Hon‟ble
Apex Court has held that "at any time..." it cannot
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be taken to mean that those powers could be
exercised without any point of time-limit. For ready
reference, the relevant paragraph of the judgment is
quoted as under:
"16. The submission that, in any event the contesting
respondents cannot be allowed to hold the land they
being non-tribals and the Deputy Commissioner is
obliged to allot the same to some other tribal only
does not merit our acceptance. Apart from the
grounds on which we have rejected the claim of the
appellant, we find that the High Court left open the
question about the disputed character of the lands
and the nature of interest surrendered which if had
been properly considered and decided was likely to
have an impact on the question of the very
applicability of the statutory provisions to the case on
hand. Merely because Section 71-A commences with
the words "If at any time..." it cannot be taken to
mean that those powers could be exercised without
any point of time-limit, as in this case after nearly
about forty years unmindful of the rights of the
parties acquired in the meantime under the ordinary
law and the law of limitation. We consider it,
therefore, inappropriate to countenance any such
contentions in these proceedings.
40. Further, the Hon‟ble Apex Court in the case of Situ
Sahu & Ors. vs. State of Jharkhand & Ors.
[(2004) 8 SCC 340 : 2004 (4) JCR SC 211] has
given its thoughtful consideration to the phrase „at
any time‟, and has held at paragraphs 10, 13 to 16,
which reads as under:
"10. Apart from the reasoning given by the High
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Court, it appears to us that the judgment of this Court
in Ibrahimpatnam [(2003) 7 SCC 667] is decisive on
the contention of limitation urged before us. Under
somewhat similar circumstances suo motu power
was given to the Collector under Section 50-B(iv) of
the Andhra Pradesh (Telangana Area) Tenancy and
Agricultural Lands Act, 1950 to call for and examine
the record relating to any certificate issued or
proceedings taken by the Tahsildar under this section
for the purpose of satisfying himself as to the legality
or propriety of such certificate or as to the regularity
of such proceedings and pass such order in relation
thereto as he may think fit. In this judgment, to which
one of us (Shivaraj V. Patil, J.) was a party, the Court
observed (SCC pp. 676-77, para 9):
"9. Even before the Division Bench of the High Court
in the writ appeals, the appellants did not contend
that the suo motu power could be exercised even
after a long delay of 13-15 years because of the
fraudulent acts of the non-official respondents. The
focus of attention before the Division Bench was only
on the language of sub-section (4) of Section 50-B of
the Act as to whether the suo motu power could be
exercised at any time strictly sticking to the language
of that sub-section or it could be exercised within
reasonable time. In the absence of necessary and
sufficient particulars pleaded as regards fraud and
the date or period of discovery of fraud and more so
when the contention that the suo motu power could
be exercised within a reasonable period from the date
of discovery of fraud was not urged, the learned
Single Judge as well as the Division Bench of the
High Court were right in not examining the question
of fraud alleged to have been committed by the non-
official respondents. Use of the words „at any time‟ in
sub-section (4) of Section 50-B of the Act only
indicates that no specific period of limitation is
prescribed within which the suo motu power could be
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exercised reckoning or starting from a particular date
advisedly and contextually. Exercise of suo motu
power depended on facts and circumstances of each
case. In cases of fraud, this power could be exercised
within a reasonable time from the date of detection or
discovery of fraud. While exercising such power,
several factors need to be kept in mind such as effect
on the rights of the third parties over the immovable
property due to passage of considerable time, change
of hands by subsequent bona fide transfers, the
orders attaining finality under the provisions of other
Acts (such as the Land Ceiling Act). Hence, it appears
that without stating from what date the period of
limitation starts and within what period the suo motu
power is to be exercised, in sub-section (4) of Section
50-B of the Act, the words „at any time‟ are used so
that the suo motu power could be exercised within
reasonable period from the date of discovery of fraud
depending on facts and circumstances of each case
in the context of the statute and nature of rights of
the parties. Use of the words „at any time‟ in sub-
section (4) of Section 50-B of the Act cannot be rigidly
read letter by letter. It must be read and construed
contextually and reasonably. If one has to simply
proceed on the basis of the dictionary meaning of the
words „at any time‟, the suo motu power under sub-
section (4) of Section 50-B of the Act could be
exercised even after decades and then it would lead
to anomalous position leading to uncertainty and
complications seriously affecting the rights of the
parties, that too, over immovable properties. Orders
attaining finality and certainty of the rights of the
parties accrued in the light of the orders passed must
have sanctity. Exercise of suo motu power 'at any
time' only means that no specific period such as
days, months or years are not (sic) prescribed
reckoning from a particular date. But that does
not mean that 'at any time' should be unguided
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and arbitrary. In this view, 'at any time' must
be understood as within a reasonable time
depending on the facts and circumstances of
each case in the absence of prescribed period of
limitation."
"13.We will assume that the surrender of tenancy on
7.2.1938 and the settlement of the lands on the
present appellant on 25.2.1938 were in quick
succession and could be viewed as parts of the same
transaction within the meaning of the term 'transfer'
as contemplated by the Act. Nonetheless, it has not
been established before us that the transfer was
contrary to any other provisions of the Act.
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
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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.
41. Now, coming back to Regulation 25(3) of the
Regulation, 1872, it is evident that herein also no time
limitation has been given. However, in the aforesaid
statutory provision, stipulation has been made that
objection if any can be raised by the party aggrieved at
the time of fresh settlement. Therefore, the provision as
contained under Regulation 25(3) of the Regulation, 1872
is having two requirement to be made by the party; first,
as per the submission advanced by learned counsel for
the appellant that the objection can be raised „at any
time‟ and; second in the fresh settlement if it is being
carried out.
42. Herein, the particular of the present case is that
the settlement has been done at the time of McPherson
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settlement/survey and thereafter, Gantzer's
survey/settlement carried out.
43. After the McPherson Settlement, the Gantzer's
Settlement has also been carried out and during the
McPherson Settlement the objection has been filed by the
appellant being Objection Case No. 768 of 1905 and 766
of 1905. The said objection was decided in favour of the
private respondents. The said order has never been
challenged by the parties. Therefore, it is not a case of
making no objection on at the time of making fresh
settlement reason being that the objection has already
been raised at the time McPherson Settlement itself and
same has been adjudicated against the appellants but
was challenged before the higher forum.
44. Hence, the contention which has been raised on
behalf the appellants that even though the objection has
been dealt with by the authority even then such objection
can be raised at the time of fresh settlement is not
available for the appellant by interpreting Regulation
25(3) of the Regulation, 1872 in that term.
45. If objection would not have been decided then the
matter would have been different but even if the
objection would have been decided or there would not
have been any objection then also raising the issue at the
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time of fresh settlement cannot be said to be acceptable
as per the argument advanced on behalf of appellant
treating the present survey which is going to be fresh one
while after the McPherson Settlement survey has already
been carried out in the year 1908.
46. Herein, after the McPherson Settlement, the
Gantzer Settlement has been carried out but at that time
no objection was raised by the aggrieved party, if any,
rather the objection has been raised after issue having
been settled on the basis of Objection filed on behalf of
the appellant being Objection Case No. 768 of 1905 and
766 of 1905.
47. Even though the said order has not been
challenged and at the time of Ganzter Settlement it could
have been raised but now after lapse of about more than
100 years, the same issue is being agitated.
48. This Court, in view of the ratio laid down in the
case of Situ Sahu (supra), therefore, is of the view that
even though the time frame is not given under Regulation
25(3) of the Regulation, 1872 [SPT Act, 1949] but that
does not mean that any litigation can be agitated by the
party concerned even after lapse of more than 100 years,
rather, the litigation is to be initiated or agitated before
the competent forum within a reasonable period even in
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absence of any stipulation made to that effect as
contained under Regulation 25(3) of the Regulation, 1872
read with SPT Act, 1949.
49. Further, the objection has already been dealt with
and that has not been chosen by the petitioner to
challenge and hence on this count also he ceases the
right to challenge that too after lapse of 100 years.
50. This Court, after having discussed the aforesaid
fact along with the legal position and adverting to the
order passed by the revisional authority found that the
revisional authority has taken into consideration the
settlement arrived at the McPherson Settlement/survey
and the objection having been dealt with by dealing with
in the Objection Case No. 768 of 1905 and 766 of 1905.
51. The learned Single Judge has taken into
consideration the decision taken by the revisional
authority on consideration of the objection case having
been decided against the appellant being Objection Case
No. 768 of 1905 and 766 of 1905 having not been
challenged and based upon the aforesaid ground, has
come to the conclusion that it is not available for the
appellants to re-agitate the issue once they have
accepted the order passed in Objection Case No. 768 of
1905 and 766 of 1905.
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52. Learned Single Judge has also taken into
consideration the issue pertaining to right, title over the
land from McPherson Settlement and the land has been
acquired by the ECL as recorded in the office of
Settlement Officer, the liberty has been given to the
petitioners-appellants to raise the issue in view of
Regulation 5A of the Regulation, 1872, if so wishes.
53. This Court considering the aforesaid fact, based
upon the reason assigned therein, is of the view that the
order passed by learned Single Judge requires no
interference.
54. Accordingly, both the appeals stand dismissed
being devoid of any merit.
55. Interlocutory Application(s), if any, stands
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Alankar/
A.F.R
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