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CASE NO.: Appeal (civil)  2414-15 of 1999

PETITIONER: Situ Sahu and Others                                           

RESPONDENT: The State of Jharkhand and others                               

DATE OF JUDGMENT: 10/09/2004

BENCH: Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT: J U D G M E N T

Srikrishna, J.

       These appeals, by special leave  call into  question the judgment  of the Division Bench of the Patna High Court dismissing the writ  application of the appellants.

       In the area to which the Chota Nagpur Tenancy Act, 1908  (hereinafter referred to as ’the Act’) applied, certain lands were  originally recorded in the names of Kochya Oraon, Bachua Oraon and  Jagna Oraon, ancestors of one  Goinda Oraon.  They were the  recorded tenants of land in Khata no.13 of village  Chhotanagpur.   Jagna Oraon died immediately after the revisional survey.  Kochya  and Bachua surrendered the tenancy pertaining to plot nos. 588, 1883,  1884 and 1885 in Khata no.13 admeasuring 2.65 acres of the land to  the landlord, the Maharaja of Chhotanagpur by a registered deed   dated 7.2.1938.  Soon thereafter, the landlord settled the land on the  appellants on 25.2.1938. The appellants  have been in possession of  the land and cultivating it.   

On 3.2.1978 the said Goinda Oraon  filed an application under  section 71A of the Act for restoration of the land in question on the  ground that the appellants had fraudulently  acquired the land by  means of a ’sada hukumnama’.  This application was registered as  S.A.R.  Case No. 415/77-78.  The Special Officer, Ranchi issued  notices to the appellants and, after hearing the parties and recording  evidence, came to the conclusion that the land belonged to the  ancestors of Goinda,  who were members of  scheduled tribes and  khatiyani  holders of the land in question.  Although, originally there  were four co-sharers in the land, namely, Kochya Oraon, Bachua  Oraon, Jagna Oraon and Goinda Oraon, the tenancies were  surrendered only by Kochya and Bachua and not by the other two.   The surrender was made on 7.3.1938 and the settlement in favour of  the appellants was made on 25.3.1938.  The Special Officer took the  view that the surrender and the settlement of the land constituted one  continuing act and was, therefore, contrary to the provisions of the  Act.  He also held that the surrender was illegal as all the shareholders  had not surrendered their rights and decided that by reason of the   provisions of Section 71A  of the Act the tribals could not have been  dispossessed  from the aforesaid land.  In this view of the matter, he  allowed the application for restoration of possession to the applicant  Goinda Oroan by an order made on 9.5.1980.  The appellant appealed  to the Additional Collector, Ranchi who affirmed the view of the  Special Officer.        A revision petition was also dismissed by the

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Commissioner  upholding the views of the two authorities below.  

       The appellants challenged the order of the Revenue Authorities   by a writ petition before the Patna High Court.  The High Court  dismissed the writ petition  holding that section 71A of the Act is a  beneficial legislation and the legislative intent is to extend protection  to a class of citizens who were unable to protect their properties on  account of backwardness, and, therefore, the Court had to give a broad  and liberal construction to the legislative intent of protection.  The  High Court  agreed with the authorities  below that the surrender of  the tenancy and the settlement of the land, coming in quick  succession, was one continuous ’transaction’ which was hit by section  71A of the Act. The contention that the application for restoration was  filed after the period of limitation,  was rejected on the ground that the  plea of limitation had not been raised at any stage of the proceeding.   On this reasoning the High Court dismissed the writ application of the  appellants.  Hence, this appeal.

       Before we take up the contentions in the appeal, a quick look at  the applicable material legal provisions.  The Chhota Nagpur Tenancy  (Amendment) Act, 1908 is of  1908 vintage. By the amending Act of  1947 (Bihar Act 25 of 1947), which came into force with effect from  5.1.1948) section 46 was introduced in the statute. Section 46 of the  Act puts restrictions on the transfer  of the rights by ’raiyat’ who is a  member of a Scheduled Tribe. As a rule, any transfer  of holding or a  portion of his holding by sale, exchange, gift or will and so on is  prohibited by section 46. Provisos  (a) and (b) of Section 46   deal  with transfer of occupancy rights of a raiyat who is a member of  Scheduled Tribe.  Both these provisos  contain only one exceptional  situation under which  the transfer of the occupancy  right of a raiyat  belonging to a Scheduled Tribe is recognized in law and that is where  it has been done with the previous sanction of the Deputy  Commissioner.  By a further amendment made by the Bihar  Scheduled Areas Regulations, 1969, certain amendments were made,  inter alia,  in Rule 3 of Order I  of Code of Civil Procedure and in   Article 65 of the IInd Schedule  of Limitation Act of 1963.  What is of  importance for us is the introduction of Section 71 A and 71B in the  Chota Nagpur Tenancy Act, 1908 (Bengal Act VI of 1908).  Section  71A reads as follows: "71A.  Power to restore possession to members     of the Scheduled Tribes over land unlawfully  transferred \026

       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 Bhuinhar) who is a member of the Scheduled  Tribes has taken plae in contravention of section  46 (or section 48 or Section 240) or any other  provisions of this Act or by any fraudulent method,  (including decrees obtained in suits by fraud or  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 and if such heir is not available  or is not  willing to agree to such restoration resettle it with  another raiyat belonging to the scheduled tribes  according to the village custom for the disposal of  an abandoned holding."

       The Section has three provisos which do not concern us as far  as the present appeal is concerned.  The other important point to be

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noticed is that Article 65 of the Schedule of Limitation Act of 1963  was amended simultaneously  by providing a period of 30 years as the  limitation for bringing a suit for recovery of immovable property  belonging to a member of  a Scheduled Tribe.         Against the background of these legal provisions, the learned  counsel for the appellants raised the following contentions.  1.      Section 71A has no application whatsoever to the case of  the appellant. Even if the surrender of tenancy by the  tenants on 7.2.1938 followed by settlement of property  on the present appellant on 25.2.1938 could be  considered as ’transfer’ within the meaning of section  71A, there was no provision of law which existed in the  year 1938 under which such a transfer was prohibited.  There is no retrospectice effect given to Section 71A so  as to cover transactions which took place in the remote  past.  Hence, the power to restore possession could not  have been exercised under section 71A; 2.      In any event, the period of limitation of 30 years was  long past when the application for restoration of  possession was sought to be entered by the Special  Officer in the year 1978.

Despite service of notice of this appeal, there was no  appearance by the fifth and sixth Respondents, who are the contesting  Respondents. Hence, we requested Mr.P.S. Narasimha, learned  advocate, to appear as Amicus Curiae and represent the interest of the  said respondents who belong to a Scheduled Tribe.  Mr. Narasimha  has commendably represented the case of the said respondents and  brought to our notice some judgments of this Court having a bearing  on the issue.  

Shri Narasimha urged that there is no substance in the  contention of the appellant on the issue of limitation. It is pointed out  that the High Court was right in its findings that the issue of limitation  had never been raised in the proceedings before the lower authorities.   Limitation is not an abstract proposition of law, but must necessarily  arise out of the facts. Hence, it was urged that we should not entertain  the plea of limitation.  Learned Amicus Curiae  further contended that  Section 71A is an  enabling power of the Deputy Commissioner  which can be exercised by him, even suo-motu, "if at any time" it  comes to his notice that the rights of a raiyat belonging to a Scheduled  Tribe have been taken away by reason of : (a) contravention of section  6 or section 48 or s. 240 B or any other relevant provision of the Act;  or (b) by any fraudulent method including decrees obtained under  statutes  by fraud or collusion. Learned amicus curiae  also drew our  attention to the judgments of this Court in Jai Mangal Oraon v. Mira  Nayak and others (2000) 5 SCC 141;      Ibrahimpatnam Taluk  Vyavasaya Coolie Sangham v. K. Suresh Reddy and others (2003) 7  SCC 667;   State of Rajasthan v. Shankar Lal Kunda Ram Banwarilal   (1992) Supp. 2 SCC 76; and  Uttam Namdeo Mahale v. Vittal Deo  and Others (1997) 6 SCC 73.   Apart from the reasoning given by the High Court, it appears to  us that the judgment  of this Court in Ibrahimpatnam (supra) is  decisive on the contention of limitation urged before us. Under  somewhat similar circumstances suo-motu power was given to the  Collector under section 50B (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 (Shivraj V.  Patil,J.) was a party, the Court observed (para 9): "Even before the Division Bench of the High  Court in the writ appeals, the appellants did not

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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 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 to 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 uncertainly 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  prescribed reckoning from a particular date. But  that does not mean that "at any time" should be  unguided and arbitrary. In this view, "at any time"  must be understood as within a reasonable time  depending on the fats and circumstances of each

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case in the absence of prescribed period of  limitation."

       We are, therefore, of the view that the use of the words "at any  time" in section 71A is evidence of the legislative intent to give  sufficient flexibility to the Deputy Commissioner to implement the  socio-economic policy of the Act  viz.  to prevent inroads upon the  rights of the ignorant, illiterate and backward citizens.  Thus, where  the Deputy Commissioner chooses to exercise his power under  Section 71A it would be futile to contend that the period of limitation  under Limitation Act has expired.  The period of limitation under the  Limitation Act is  intended to bar suits brought in civil courts where  the party himself chooses to exercise his right of seeking restoration  of immovable property. But,  where, for socio-economic reasons, the  party may not even be aware  of his own rights, the legislature has  stepped in by making an officer of the State responsible for doing  social justice by clothing him with sufficient power. However, even  such power cannot be exercised after an unreasonably long time  during which third party interests might have come into effect.  Thus,  the test is not whether the period of limitation prescribed in the Act of  1963 had expired, but whether the power under Section 71A was  sought to be exercised after unreasonable delay.  Mr. Narasimha fairly conceded that he was not in a position to  demonstrate that the surrender which took place on 17.2.1938 was in  contravention of any of the provisions of the Act.  He also conceded  that section 46, which came into force on 5.1.1948, had no  retrospective effect. Thus, there was no question of the transfer which  took place in 1938 being in contravention of section 46.  He, however,  strongly urged that the circumstances of the transfer brought about on  record suggest a fraudulent transaction on the part of the landlord. He  particularly urged that as the facts show only some of the co-sharers  had surrendered their rights while some had not  and the landlord had  managed to take possession of the land and within a span of less than  three weeks settled the land upon the present appellants.  This  transaction smacks of a fraudulent act  and must be viewed at askance,  is his submission. 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.   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 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.         In the result, therefore, we are of the view that the Special  Officer ought not to have exercised his powers under Section 71A of

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the Act after such an unreasonable long period of time, in the facts  and circumstances of the case brought to light.           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.

       There shall be no orders as to costs.

       We place on record our appreciation of the able assistance   rendered by the Amicus Curiae Shri  P.S. Narasimha.