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PETITIONER: JAI MANGAL ORAON

       Vs.

RESPONDENT: SMT.  MIRA NAYAK AND ORS.

DATE OF JUDGMENT:       05/05/2000

BENCH: Doraiswami Raju, M.B.Shah

JUDGMENT:

     Raju, J.

     Delay   condoned   and  leave    granted   in   SLP(C) Nos.1463-64/98.  These matters are dealt with together since they  involve  common and identical issues  and  submissions have  also been made by the counsel in common.  To  properly appreciate  the issues raised, the skeleton of facts,  which led to the filing of the above appeals, would be necessary.

     Civil  Appeal  No.12493 of 1996 The lands in  question forming part of a larger extent originally stood recorded in the  name  of  late Nanda Oraon, a member of  the  Scheduled Tribe.   On 15.1.42, Nanda Oraon was said to have executed a registered deed of surrender in favour of the landlord since he  failed to and could not raise any crop on the land.  The landlord,  who  thus  came  into   possession  of  the  land subsequently  by  a registered deed dated 16.2.42  alongwith his  co-sharers,  settled the land permanently in favour  of one Satish Chandra Baul.  Part of the land settled in favour of  Satish Chandra Baul was said to have been acquired under the  provisions of the Land Acquisition Act and compensation was also claimed and paid to the said person.  The remaining extent  was  said  to have been sold by the  descendants  of Satish  Chandra Baul to various persons at different  points of  time  during  the year 1971-72.   The  first  respondent claimed to have purchased under a registered sale deed dated 12.8.71,  5  kathas of land being a portion of plot  No.1217 which  was  also shown as sub plot No.1217/16.  She got  her name mutated in the office of the Circle Officer, Ranchi, by an  order  dated 13.3.73 and after obtaining  the  necessary sanction, raised construction, thereon

     Subsequently,   also   for   putting   up   additional construction,  revised building plan was got sanctioned  and when  such construction was going on, the appellant filed an application  on 12.12.85 alleging that the first  respondent had  forcibly  with  the  help of  her  muscle  men  started occupying  the  land belonging to him and despite  complaint made  before  the  concerned Police Station,  it  evoked  no response  necessitating the appellant to approach the Deputy Commissioner,  Ranchi.   The  Deputy  Commissioner,  Ranchi, seems  to  have  endorsed  the application  to  the  Special Officer, Scheduled Area Regulation, Ranchi, and he, in turn, directed  the first respondent to stop construction and also directed her to appear in his court on 15.5.85 in connection with  S.A.R.   case  No.114/84-85 under Section 71A  of  the

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Chotanagpur  Tenancy Act,1908 (in short ‘CNT Act).  It  may be  noticed at this stage that the appellants claim was  on the  basis that after the death of Nanda Oraon his son Sukhi Oraon  succeeded  to  his  interest and  the  appellant  was adopted  by  Sukhi  Oraon under a registered  Adoption  Deed dated  20.2.74.  As the adopted son of late Sukhi Oraon,  he succeeded  to the interest of his predecessor in interest in the property.

     Aggrieved  against the notice/direction issued by  the Special  Officer,  the first respondent filed CWJ  Case  No. 118  of 1986 (R) challenging the jurisdiction and  authority as  also  the  legality of the proceedings  initiated  under Section  71A  of  the  CNT  Act.   The  case  of  the  first respondent before the High Court was that Section 71A is not attracted  unless  it  is alleged that there had  been  some transfer  of raiyati interest by a member of Scheduled Tribe in  favour of another person;  that there is no provision in the CNT Act which empowers either the Special Officer or the Police  to stop construction of a building over the plot  of land  in  question;   that  the plot  of  land  having  been surrendered  before the year 1947, no previous permission of the Deputy Commissioner was required to be obtained and that in  any  event  the  land   being  Chhaparbandi  land,   the provisions  of  Section  71A has no application.   The  Writ Petition was opposed by the appellant by contending that the registered  surrender  deed dated 15.1.42 was nothing but  a fraudulent  method  applied  by the ex-landlord to  get  the raiyati  interest in agricultural lands of recorded tenants. The claim of adoption and rights as the adopted son of Sukhi Oraon  were  also  advanced.   Since there was  no  stay  of further  proceedings on the file of the Special Officer,  he proceeded  with the inquiry and directed the parties to file their  respective  documents  because no oral  evidence  was adduced  before him.  Ultimately, the Special Officer passed an  order  dated 21.11.86 directing the first respondent  to restore  possession  of  the property to the  appellant  and remove  the  construction,  since, in his view,  the  matter required  a decision under the first proviso to Section 71A. The  first  respondent  was  permitted  to  amend  the  Writ Petition  to enable her to question the final order as  well as  the consequential orders passed on 26.5.87, in the  very Writ Petition.

     Learned  Single Judge by an order dated 5.3.90 allowed the Writ Petition filed by the first respondent holding:

     (i)  That  the claim of forcible dispossession of  the appellant  will not amount to a transfer within the  meaning of Section 71A of the CNT Act.

     (ii)  That the lands were really Chhaparbandi lands as disclosed  from  the  documentary evidence produced  in  the proceedings  and even proceeding on the basis that the lands were raiyati in character inasmuch as the surrender was long before  the  year 1947 of the raiyati interest in favour  of the  landholder, the same was permissible in law and nothing in the CNT Act prohibited such a surrender.

     (iii)  Since  the  CNT (Amendment Act)  1947  amending Sections  46 and 72 was prospective in operation, there  was no  obligation  or necessity to obtain previous sanction  of the  Deputy Commissioner for effecting surrender in 1942, as per  the  earlier  rulings  of  the  said  High  Court  and, therefore,  the  surrender could not be held to be  bad  for

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want  of  any  proper  previous  permission  of  the  Deputy 1942,  or contravention of any prohibition in law;  and

     (iv)  That  the  surrender was made in  the  month  of January,  1942,  during the middle of the agricultural  year was   not   an  invalidating  or  vitiating   factor,   such stipulation  being  one  devised  for  the  benefit  of  the landlord   and   not  for  the   benefit  of   the   tenant. Consequently, the learned Single Judge held that Section 71A had no application to the case on hand and if at all in such a  case where a grievance of forcible dispossession is made, the  appellant must seek only his ordinary legal remedy  and quashed the orders passed by the Special Officer, challenged in  the  Writ  Petition.   Since the  first  respondent  was dispossessed  from the land during the pendency of the  Writ Petition  restoration  of possession forthwith to the  first respondent  was  ordered.   It is against this  order  Civil Appeal  No.12493  of 1996 has been filed in this Court.   It appears that subsequently LPA No.28 of 90 (R), filed against the  decision of the learned Single Judge by the  appellant, was also summarily dismissed and he has filed an application seeking  to amend the memorandum of appeal in this Court  so as to include in the relief portion a challenge to the order passed   in  the  LPA  28  of  90  also.   Application   for condonation  of delay in filing a belated amendment and  for exemption  from  filing certified copies of the  said  order have also been filed.

     Civil  Appeal  Nos.   of  2000  (Arising  out  of  SLP No.1463-64 of 1998)

     The appellant in the above appeals is the same person, who  has  filed Civil Appeal No.12493 of 1996 and  the  land involved  in these appeals is also a fragment of the  extent acquired  initially by Satish Chandra Baul.  The legal heirs of  Satish Chandra Baul were said to have sold an area of  4 kathas  on 1.2.72 to one Sarbeshwar Kundu who, in turn,  was said  to  have  sold the same under a registered  sale  deed dated 08.12.80 in favour of the first respondent-Rita Sinha. After her purchase, she got her name mutated in the official records and claimed to have paid thereafter the Chhaparbandi rents  and  taxes.   After her purchase, she  constructed  a pukka  house  over the land strictly in accordance with  the Building Rules and Regulations, in force in the locality.

     While  so, when the Special Officer at the instance of the  appellant issued notice/directions in SAR case No.61 of 1987  on  17.10.84,  the  first respondent  filed  CWJ  case No.2996  of 1994 (R) to quash the said proceedings.  In  the said  Writ  Petition, issues similar to those raised in  the previous Writ Petition filed by Smt.  Mira Nayak were raised placing  reliance upon the earlier decision and the  learned Single  Judge  by  his  order dated  13.3.96,  applying  and following  the  earlier judgement dated 5.3.90 in  CWJ  Case No.118  of  1986  (R), upheld the contentions of  the  first respondent.   The learned Single Judge also observed that in view  of the decision reported in Smt.  Muni Devi and Others Vs  Special Officer Scheduled Area Regulation, Ranchi  (1990 PLJR  641), even at the stage of issue of notice  initiating proceedings  under  Section 71A of the CNT Act, a  challenge could  be made by means of a Writ Petition since it involved a  question  of jurisdiction of the Special Officer and  the very  applicability  of Section 71A to a case of  pre-  1947 surrender.   When  the  Writ  Petition filed  by  the  first respondent  was  allowed  as above, the  appellant  filed  a

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Review Petition in Civil Review No.36 of 1995 (R) contending that  the earlier judgement was subjudice before this  Court by  grant of leave to appeal and that an earlier decision of the  Full  Bench, which was relied upon in the earlier  case also,  came  to  be  set aside by this  Court.   The  Review Petition  came to be dismissed holding that, as on date, the earlier   decisions  held  the  field   and  there  was   no justification   to   countenance   a   claim   for   review. Challenging the above orders in the Writ Petition and Review Petition,  the  above  two appeals came to be filed  by  the appellant.

     The  first  respondent in the above appeals  have  not only  asserted that the appellant is not the adopted son  of Sukhi  Oraon  but that he has manipulated and  fabricated  a false  document  by impersonation also to unlawfully make  a claim  to  usurp  the  land and  that  several  adjudicating authorities,  in  the  course  of  dealing  with   statutory proceedings  recorded such findings.  The appellant has been found  to be avoiding criminal proceedings instituted before the  Chief Judicial Magistrate at Ranchi under Sections 420, 466,  467, 468, 471 and 120B, IPC, by the daughter of  Sukhi Oraon  claiming that her father died as early as on  18.8.73 and  the  appellant has fabricated documents long after  his death  by  impersonation and that on account of his  evading tactics,  despite  the warrants issued for his  arrest,  the police  has moved the Chief Judicial Magistrate, Ranchi, and obtained  orders  of  proclamation under Section 82  of  the Cr.P.C.   against the appellant.  By producing a copy of the order  dated  21.12.98 in Ranchi Revenue Revision  No.483/93 passed  by the Commissioner (South) Chotanagpur Division  it is  sought  to  be  proved that the revision  filed  by  the appellant,  claimed  to be pending by the appellant  in  the rejoinder  filed  in  Civil  Appeal No.12493  of  1996,  was already  dismissed  on  account of  continuous  absence  and non-appearance  of  the  appellant   before  the  Revisional Authority.

     The  contentions  on behalf of the appellant,  in  all these  appeals, by the learned counsel appearing, are  based upon  Section 71A introduced by way of amendment in the year 1969  and Section 46 and Section 72 as they stood amended by the  Amendment Act in 1947 with effect from 5.1.1948 and the decisions  of  this  Court reported in Pandey Oraon  vs  Ram Chandra  Sahu  [1992 Suppl.  (2) SCC 77] and Brisa Munda  Vs Chando  Kumari  &  Others  [1996  (9) SCC  545]  by  way  of challenge to the orders of the High Court.  As for the claim of the appellant based on his alleged adoption, it is stated that  the  first respondents in the above appeals  have  not pursued  the  matter  before the  Appellate  and  Revisional Forums  properly  and in the absence of any adjudication  by the  High Court also of this issue the same cannot be  urged against  the appellant in these proceedings.  Finally, it is pointed  out  that  in any event the lands in  question  are liable to be allotted by the Deputy Commissioner to a tribal only  and  the first respondents in the appeals who are  non tribals  could not be allowed to hold or retain the lands in question, any longer.

     The  learned  counsel for the first respondents  while trying  to  justify the orders of the High Court  vehemently contended  that  the  surrender by the tenant in  this  case having  taken  place  on 15.1.1942, there was  no  need  for obtaining any previous sanction from the Deputy Commissioner under  pre-amended  Section 72 and statutory  provisions  as

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were  in  force  on  that date only  applied  to  the  case. Likewise,  according to the respondents, Section 71A,  newly introduced  in  1969, had no application whatsoever  to  the case  and  that too at such belated point of time.  The  two decisions  of  this Court relied upon for the appellant  are said  to be distinguishable and not relevant for the case on hand.   The character of the land was also stated to be only Chhaparbandi  and that the surrender was not of any  raiyati interest  of a tenant to attract the provisions of CNT  Act. Adverting  to some of the subsequent developments and  vital facts  coming  into  existence such as -  (a)  the  decision rendered  on  1.8.90 in SAR case No.23/84-85  instituted  by Sukhi  Oraons daughter where the Special Officer held  that the  appellant  is not the adopted son of Sukhi Oraon  which came  to be confirmed by the Appellate Court on 20.9.95  and revision  filed  thereon also rejected on 21.12.98  (b)  the declaration by the competent Civil Court on 7.10.94 that the adoption deed under which the status of adopted son has been claimed  was a forged and fraudulent document fabricated  by the  appellant, in title suit Nos.  80/84 and No.19/87 filed by  one  Sardar  Amrik Singh against  identical  proceedings instituted by the appellant invoking Section 71A and (c) the criminal  complaint  filed by the daughters of  Sukhi  Oraon before  the Chief Judicial Magistrate, Ranchi (Case  No.8/99 pursuant  to  PS  No.37/99 registered  under  Sections  420, 466-468 and Section 120B, IPC) against the appellant and his father,  in  which the appellant is shown to have  been  not only rejected bail but thereafter found to be evading arrest and  absconding  resulting  in an order for  a  proclamation under  Section  82  Cr.P.C.   by the CJM, Ranchi,  -  it  is forcefully contended for the contesting respondents that the appellant  has  no locus standi whatsoever to  agitate  this matter  and have no rights to claim or be vindicated and the appeals are liable to be dismissed on this ground also.

     We  have  carefully considered the submissions of  the learned  counsel  appearing  on either  side.   The  details relating  to some of the subsequent developments brought  on record  in  the shape of the relevant orders passed  by  the competent   authorities   disclose  a   disturbing   picture bordering  on  gross  misuse and abuse of process  of  Court involving  serious  criminal  offences too.   It  is  rather surprising  that  at a place where he had to face a  factual inquiry  the  appellant  seems to have gone  underground  to avoid  the  arms  of law taking its course but  continue  to fight  in  absentia  in this court.  We do  not  propose  to indict  the appellant for all such misdeeds ourselves since, law  in  due course will take care of the situation,  as  it deserved.   Such vital facts now coming to light, which  are not  only  grave and serious but also go to the root of  the matter,  undermining  the very basis of his claims and  even locus  standi or right to agitate before courts in  relation to  the  property in question, cannot be totally ignored  to permit  perpetuation of grave injustice and abuse of process of  Court.  Those facts themselves constitute, in our  view, sufficient  ground  to dismiss these appeals.  It is by  now well  settled that even subsequent developments or facts and turn  of  events  coming  into existence  but  found  really relevant,  genuine  and  vitally  important  in  effectively deciding  the  issues  raised  and  necessary  to  do  real, effective  and substantial justice or prevent miscarriage of justice   not   only  can  but   ought  to  be  taken   into consideration  by  courts  even  at  the  appellate   stage. Apparently,  developing  cold feet on this account  only  an alternate  submission  has been made that in any  event  the

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first  respondents  being non-tribals cannot be  allowed  to hold  or  retain the property and it has necessarily  to  be allotted   to   any  other  tribal   only  by   the   Deputy Commissioner.   Though  we  propose to deal with  the  other issues  raised, having regard to the important nature of the issues raised, these appeals, in our view, have to fail even on  the basis of the subsequent developments noticed,  which dis-entitle  the appellant to claim or assert any rights  in the  lands  in question.  Even though this is an  additional ground  taken  at  this  stage as it is  serious  one  which dis-entitles  the appellant to seek any relief on the ground that  he is adopted son of Sukhi Oraon, (Sukhi Oraon was son of  deceased-tenant  Nanda  Oraon), we have  considered  the same.   The  said contention is based upon  judicial  orders passed  by the competent Courts ordinary as well as  special constituted  by  the  statute   with  powers  to  adjudicate disputed question of fact and no effective reply denying the existence  of  those orders was filed by the  appellant  all these years.

     We  are  concerned  in  these  appeals  only  with  an admitted  case  and  class of transfer by way  of  surrender envisaged  under Section 72 and not even any other  category or class of transfer envisaged under Section 46, as it stood prior to the amendment Act of 1947.  This Court was also not at  all concerned in the earlier decisions reported in  1992 Suppl.   (2)  SCC  77 (Supra) and 1996 (9) SCC  545  (Supra) specifically  with any issue relating to the law  applicable to  a  case of surrender effected prior to 1943 but  on  the other  hand  mainly dealt with the scope of Section 71A  and thereby  the purport and content of the word ‘transfer used therein.   Even in the subsequent decision, the purport  and meaning  of the word ‘transfer occurring in Section 46  (4) (a)  and  that too in the context of dealing with a case  of surrender  effected in 1976 was the subject of consideration and not the applicability of Section 71A.

     A  perusal of the decision reported in 1992 suppl  (2) SCC  77 (supra) would show that it did not deal with a  case of  surrender prior to 1947, as in this case and during  the relevant  point of time when surrender was made in this case there  was  no  statutory  provision in the  CNT  Act  which envisaged  the  obtaining of prior permission of the  Deputy Commissioner before surrender of the tenancy rights.  Though no  factual  details are available in the judgment  this  is obvious  from the fact that what was considered therein  was only  the scope of Section 71A added by the Amendment in the year  1969.  So far as the decision reported in 1996 (9) SCC 545  (supra) is concerned also the date of surrender in that case  is not stated specifically.  Even otherwise, in para 9 of  the  judgment  it  is stated, thus - In  this  case  an application  under Section 46 (4) (a) has been made.  It is, therefore,   not  at  all   necessary  whether  Section  71A incorporated  by  amendment is applicable in respect of  the land  in  question.  Section 46 (4) (a) considered in  this decision  which  envisaged  a prior sanction of  the  Deputy Commissioner  before effecting 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 relevant point of time of surrender made in this case on 15.1.1942.   For all these reasons, we are of the view  that the  two  decisions relied upon for the appellant  does  not either apply to the present cases or support the contentions raised before us.

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     No  doubt,  the understanding of the High Court  about the  scope  of  Section 71A as interpreted  by  the  earlier decisions  of that Court noticed therein may not be good  or correct  in  view  of the later declaration of law  by  this Court  but,  the  High  Court did not proceed  to  rest  its conclusion   to   uphold  the   claims  of  the   contesting respondents who were writ petitioners before the High Court, only  on  that  ground.  The High Court has  considered,  at length,  the  further  question as to whether  Section  71A, introduced  in 1969, was attracted to this case of surrender effected by a registered deed, on 15.1.1942, in the light of the  then existing statutory provisions contained in Section 46  and 72 of the CNT Act.  The nature of consideration  and the  other reasons assigned in support of the order made  in CWJC  No.118  of 1986 (R) makes it clear that the  statutory provisions  as  they  stood in force  on  15.1.1942  neither envisaged  the  obtaining of a prior sanction of the  Deputy Commissioner before a surrender by a tenant could be made of his  interest  in  favour  of the landlord  nor  could  such surrender  be held bad merely because it was not at the  end of  the  Agricultural  Year but immediately  before.   Those issues seem to have been considered and decided, even dehors the  controversy  raised with reference to the character  of the  land, proceeding on an assumption of the basis that  it involved  a surrender of raiyati interest.  We find  nothing illegal  or wrong in the said reasoning and the  conclusions arrived at by the learned Judges in the High Court appear to be  well  merited  and quite accordance with  the  statutory provisions  in force, at the relevant point.  Therefore,  in our  view, no interference is called for with the orders  of the High Court, in this regard.

     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 likely to have  an impact  on  the  question of the very applicability  of  the statutory  provisions  to the case on hand.  Merely  because Section  71A commence with the words If at any time  .. it  cannot  be  taken  to mean that  those  power  could  be exercised  without any point of time limit, as in this  case after  nearly  about forty years unmindful of the rights  of 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.

     These  appeals,  therefore, are hereby  dismissed  but with no order as to costs.