SITU SAHU Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the orders dated 9-5-1980, 19-4-1986 and 2-12-1986 passed by the respondent-authorities, copies of which have been made Annexures-1,2,3 respectively, whereby and whereunder the lands, in question, were restored in favour of respondent No. 5 in purported exercise of power under Section 71-A of the Chotanagpur Tenancy Act (here in after referred to as the said Act).

(2.) The relevant facts in dispute are that the disputed lands appertaining to R.S. Khata No. 13 of village Chachkapi were recorded in the names of Kochya Oraon, Bechua Oraon and Jagna Oraon, who are ancestors of respondent No. 5 Jagna Oraon died immediately after the revisional survey. Kochya Oraon and Bachua Oraon surrendered the plot Nos. 588, 1883, 1884 and 1885 appertaining to khata No. 13 measuring an area of 2.65 acres to the Maharaja of Chhotanagpur by a registered deed of surrender on 7-2-1938. The landlord subsequently settled the land with the petitioners through a sada hukumnama on 25-2-38 and followed by grant of rent receipts. It is stated that after the settlement of the land the petitioners invested a lot of amount for improvement of the land, in question, and made it cultivable. On 3-2-78 respondent No. 5 filed an application under Section 71 of the Act for restoration of the land, in question, on the ground that the petitioners had fraudulently acquired the land by means of sada hukumnama which was registered as SAR Case No. 415/77-78. The Special Officer under the Scheduled Area Regulation by his order dated 9-5-80 has restored the land in favour of respondent No. 5 and directed to pay compensation of Rs. 10/- on the ground that no improvement has been made of the land, in question. The special officer while restoring the land in favour of respondent No. 5 has held that surrender and settlement were part of the same transaction, copy of the said order is made Annexure-1 to this writ application. The petitioners being aggrieved by the order passed by the special officer has filed an appeal which was registered as SAR Appeal No. 299/80-81 before the Additional Collector, Ranchi. The appeal was ultimately dismissed by the Additional Collector by his order dated 19-4- 86. However, the appellate Court enhanced the amount of compensation to Rs. 200/- . The petitioners also approached the revisional Court and the respondent Commissioner by his order dated 2-12-86 dismissed the revision filed by the petitioners. It may be stated here that the party has laid evidence both oral and documentary before the original authority, namely, Special Officer and all the Courts on the evidence available on record have come to a finding that the surrender and settlement were part of the same transaction and in violation of Section 46 of the Act. It was further held that petitioners did not make any improvement of the land save and except constructed two kutcha wells. The appellate authority has also come to a finding that the surrender and settlement made in great haste. The order bye-passed the Chhotanagpur Tenancy Act. The respondent authority has also come to a finding that there is no iota of evidence to suggest that the petitioners have made any improvement of the land, in question.

(3.) The learned lawyer for the petitioner firstly assailed the findings of the respondent-authorities on the ground that in order to attract the petition for restoration under Section 71-A of the said Act, there must be evidence to show that there was illegal transfer by a member of scheduled tribe and in the instant case the ancestors of respondent No. 5 surrendered the disputed land in favour of the ex-landlord as early as on 7-2-1938 followed by settlement on 25-2-38 by a Sada hukumnama in favour of the petitioner. So surrender is actually neither illegal nor it comes within the mischief of Section 71-A of the Act as it is not a transfer and if it is not a transfer, then such petition is not maintainable. In support of this contention, he has relied upon two decisions of the Single Judge of this Court reported in 1987 BLT at page 301 (Budhu Mahto and another v. State of Bihar) and other reported at page 303; 1988 BLJ 366 (Bishram Sahu v. Bhairo Oraon). In these two decisions, a principle was laid down by a Single Judge of this Court that a settlement made after one month or even after few days of the surrender by a member of the scheduled tribe does not necessarily mean that the surrender and the settlement would form part of the same transaction and the settlement is virtually a transfer in the garb of settlement and violates the provision of Section 46 of the said Act.