ASHWINI KUMAR ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing Annexure-11, by which respondent No. 4 allowed the application filed on behalf of respondent No. 5 for restoration of land in plot No. 663, khata No. 55 of village Kokar in the district of Ranchi, Annexure-12 the appellate order dated 29 June, 1979 passed by respondent No. 3 by which he allowed the appeal with regard to 0.84 acres but dismissed the same with regard to 0.13 acres and Annexure-13, the order of respondent No. 2 revision dated 3 November, 1980 by which the revision application filed by the petitioner was dismissed and the matter was remanded to the appellate court for disposal of the case in respect of 0.84 acres of land keeping in view Proviso II of Section 71-A of the Chhotanagpur Tenancy Act (the Act).

(2.) Orginally the plot in question belonged to one Lakho Oraon. According to respondent No. 5. by registered deed dated 5 August, 1947, 0.41 acre of land was transferred by the recorded raiyat to respondent No. 5 By a registered deed dated 29 June, 1959, the recorded raiyat transferred one acre of land to the petitioner and his brothers. An application was filed by respondent No. 5, as contained in Annexure-1, for restoration of 3 1/2 kathas of land alleged to have been encroached by the petitioner. In the show-cause filed by the petitioner, it was contended that the Act had no application as the land in question was Chhapparbandi, that is, non-agricultural land. On this averment mainly, it was pleaded on behalf of the petitioner that the Deputy Commissioner under Section 71-A of the Act had no jurisdiction to pass any order for restoration. Respondent No. 4 allowed the application with regard to the area claimed by the petitioner, i.e., 1 acre although encroachment had been claimed by respondent No. 5 with regard to 3 1/2 katha, i e., about 0.06 acre. According to the petitioner, on an application filed by him to decide the question of applicability of Section 71-A of the Act, the case was fixed for deciding that preliminary objection, but the case was disposed of on merit without hearing him. In view of the order that we are going to pass in this case we need not to go into this allegation made by the petitioner. Respondent No. 3 in appeal held that as the Act had no application to the land in question, as it was within Ranchi Municipality, it did not apply its mind to decide whether the land in question was Chhapparbandi or not. It, therefore, allowed the appeal of the petitioner with regard to 0.84 acre, that is the area left after the recorded raiyat had executed sale deed dated 15 August, 1947 in favour of respondent No. 5. The petitioner filed a revision application with regard to 0.16 acre. The Revisional Authority (Respondent No 2) rejected the revision application and also set aside the order of the appellate court with regard to 0.84 acre and remanded the matter to the Deputy Commissioner for disposal keeping in view of second proviso to Section 71-A of the Act.

(3.) Mr. Debi Prasad, learned counsel appearing for the petitioner contended that as the land purchased by the petitioner was Chhapparbandi, that is, non-agricultural, the Act had no application and, therefore, no proceeding under Section 71-A of the Act could have been started with regard to the same. He further contended that respondent No. 2, the revisional authority, had no jurisdiction to set aside the finding of the appellate court with regard to 0.84 acre of land when no revision was filed with regard to that area either by the State of Bihar or by respondent No. 5. He also urged that respondent No. 5 had alleged that the petitioner had encroached some of his land, no proceeding under Section 71-A of the Act could have been started for removal of the alleged encroachment.