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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.