AMARENDRA NATH DUTTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India, the petitioners pray for quashing the notices, copies whereof are Annexures-1' to the writ petition and Annexures 1/1 to 1/14 to the first amendment petition to the writ application, by which excepting Annexures 1/1 and 1/3 which are directed to different persons -- the Block Development Officer. Patamda, respondent No, 2 has called upon the petitioners to show cause as to why the lands specified in the notices, which were alleged to have been taken possession of by the petitioners illegally, be not restored to various applicants, who had filed applications for restoration of their lands before the Block Development Officer. It is not necessary to .state the particulars of the lands or the names of the applicants before respondent No. 2. It is enough to state that all the lands are situate within the jurisdiction of the Patamda Block which lies in Dhalbhum Sub-Division in the district of Singhbhum. Petitioners also pray for a direction to the respondents namely, the State of Bihar, the Block Development Officer, Patamda Block, the Sub-Divisional Officer, Dhalbhum, the Deputy Commissioner, Singhbhum, and the Union of India, who are respondents 1 to 5 respectively ordering them to forbear from taking steps in pursuance of the impugned notices or otherwise interfering with the petitioners' right, title, interest in and possession over the lands in respect of which the notices have been issued. It is not disputed that the Block Development Officer, Patamda, is a Deputy Commissioner within the meaning of the expression as used in Sections 46 and 71-A of the Chhotanagpur Tenancy Act, 1908 (hereinafter called "the Act"). The statutory provision, in exercise of the powers conferred by which the notices have been issued, is not stated in the notices. According to the petitioners, the notices have been issued in exercise of the powers conferred by Section 71-A of the Act. According to the counter-affidavit filed on behalf of the State of Bihar and respondents 2 to 4, which have been relied upon by the other appearing respondents, the notices have been issued both under Sections 46 and 71-A of the Act. The learned Advocate General who appeared on behalf of respondents 1 to 4 and the learned Advocates who appeared for the Union of India or the private respondents, however, expressed their willingness to argue on the footing that the notices had been issued under Section 71-A of the Act. Therefore, for the proposes of this case, we will proceed on the assumption that the impugned notices have been issued in exercise of the powers conferred by Section 71-A of the Act.

(2.) In exercise of the powers conferred upon him by paragraph 6 of the Fifth Schedule to the Constitution of India, made, on 26th January, 1950. "The Scheduled Areas (Part A States) Order, 1950" (hereinafter called "the 1950 Order") specifying certain areas In various Part A States as Scheduled Areas, Among the areas in the State of Bihar declare as Scheduled Areas by the 1950 Order was the district of Singhbhum, excluding Dhalbhum Sub-Division. Acting in exercise of the powers conferred by Paragraph 5 of the Fifth Schedule to the Constitution, the Governor of Bihar, made the Scheduled Areas Regulation Act, 1969 (hereinafter called "the Regulation"). The Regulation amended in their application to the Scheduled Areas various 'Acts, including the Indian Limitation Act, 1963 and the Chhotanagpur Tenancy Act, 1908. The Regulation amended Article 65 of the Indian Limitation Act by substituting 30 years, as the prescribed period of limitation in place of 12 years. It also made certain amendments to the Act' regarding which it is only necessary to state that it added a new Section 71-A to the Act. Section 71-A empowered the Deputy Commissioner to restore possession to raiyats belonging to the Scheduled Tribes over lands, if the Deputy Commissioner was satisfied that the transfer of the land had been effected in contravention of the provisions of Section 46 or any other provision of the Act or by any fraudulent method. Section 71-A was not initially in force in the Dhalbhum Sub-Division as it was not then included in the Scheduled Areas in the State of Bihar. On 7th September 1976 the President gave his assent to the Fifth Schedule to the Constitution (Amendment) Act, 1976 (Act 101 of 1976), (hereinafter called "the Amendment Act"), passed by the two Houses of Parliament. The Amendment Act amended sub-paragraph (2) of paragraph 6 of the Fifth Schedule to the Constitution. In exercise of the power conferred on him by the amended paragraph 6 (2), the President, on 21st December 1977 made an order, namely. The Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, (hereinafter called, the '1977 Order') rescinding the 1950 Order, and re-defining the Scheduled Areas. By the Scheduled Areas Order (1977), the entire district of Singhbhum, and, therefore, the Dhalbhum Sub-Division became a part of the Scheduled Areas in the State of Bihar. Thus, if the Amendment Act and the Presidential Orders made thereunder are valid, Section 71-A became applicable to Dhalbhum Sub-Division. The impugned notices were issued on some date or dates in December 1978.

(3.) According to the petitioners, they are in .legal possession of the lands in respect of which notices have been issued. Petitioner No. 9 claims to be in possession as the recorded tenant of the lands. Petitioners Nos. l and 8 claim to be in possession on the basis of and from the time of the settlement of the lands by the landlord in their favour. The first relevant settlement in favour of petitioner No. 1 was made in 1938, and except in respect of one piece of land, the settlement of which was made in 1959, the other settlements in favour of petitioner No. 1 are alleged to have been made in 1945 or 1946. The settlement in favour of petitioner No. 8 is alleged to have been made in the year 1941. Petitioners Nos. 3 & 6 are alleged to have acquired the lands and to have come in possession thereof by virtue of decrees of the Civil Court. According to petitioners, petitioner No. 3 was in possession of the lands either since 1962 or 1963. Petitioners Nos. 2, 4, 5 and 7 claim to be in possession from the time and by virtue of execution registered sale-deeds in their favour by different persons, petitioner No. 2 since 1962, petitioner No, 7 since 17% November, 1965 and petitioner No. 5 since 3-4-1973, The date or even year of the registered sale-deed in favour of petitioner No. 4 or the date or year from which he is in possession of the lands is not disclosed. Similarly, the date or even year of the civil court decree or of his possession has not been disclosed in respect of the lands alleged to be in possession of petitioner No. 6.