Smt. Muni Devi and Others vs The Special Officer, Scheduled Areas Regulations and Others

S.B. Sinha, J.—This petition is directed against an order dated 3.12.1986 passed by the Special Officer, Ranchi (respondeat No. 1) as contained in Aunexure-6 to the writ application whereby and whereunder the said Respondent held that the petition for restoration filed on behalf of the Respondent Nos. 3 and 4 purported to be u/s 71(A) of the Chhotanagpur Tenancy Act, 1908 was maintainable.

In view of the order proposed to be passed by me it is not necessary to state the facts of the case in details.

Suffice it to say that Respondent Nos. 3,''J and 4 filed an application for restoration of the land bearing plot No. 1085, Holding No. 862 situate on Purulia Road, of erstwhile Ranchi. Municipality, now Ranchi Municipal Corporation. In the said proceeding before the Respondent No. 1, the Petitioner raised a preliminary objection with regard to the maintainability of the said application, on various grounds namely:

(a) Respondent Nos. 3 and 4 being Christians by religion they cannot be members of the Scheduled Tribes.

(b). The lands in question being not agricultural land and situated within the Municipal Area, the provision of the Chhotanagpur Tenancy Act have no application.

(c) The lands in question being the subject, matter of a town lease granted by the Deputy Commissioner in favour of the predecessor in the interest of the parties, for the purpose of raising dwelling house, the provisions of the said act have no application.

From a perusal of the writ application, it appears that the Respondent No. 1 merely took into consideration the first two objections'' raised on behalf of the Petitioner and held that the said proceeding was maintainable in law.

Mr. K.K. Sahay, the earned Counsel appearing on behalf of the Petitioner drew ray attention to the fact that it is undisputed that the lands in question being the subject matter of the town lease and having been demised for dwelling purposes, the provisions of Chhotanagpur Tenancy Act cannot have any application whatsoever, Mr. Sihav submitted that Chhotanagpur Tenancy Act applies only to Agricultural Holdings and not in respect of the lands which were settled for non-agricultural purposes, and are situated within the Municipal limit of the Ranchi Town.

Mr. Sahay submitted that this fact has not been disputed in the counter affidavit filed on behalf of the Respondent Nos. 3 and 4 and as such this Court should issue a writ of prohibition as against the Respondent No. 1 directing him not to proceed with the impugned proceedings. The earned Counsel in this connection has relied upon the cases of Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, and Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, .

The learned Counsel appearing on behalf of the Respondent, on the other hand, submitted that the Petitioners have no locus standi to maintain the writ application as they or their vendor, had no right, title and interest in respect of the properties in suit and consequently they have also derived no right, title and interest therein. The earned Counsel further submitted that in the counter-affidavit it has been stated that the Petitioner and his family members are members of Scheduled tribes and they being raiyats a petition u/s 71(A) of the Chhotanagpur Tenancy Act would be maintainable.

Normally, this Court in exercise of its writ jurisdiction is loath to interfere with an order deciding a preliminary issue with regard to the maintainability of a proceeding u/s 71(A) of the Chhotanagpur Tenancy Act and to issue a writ of prohibition, prohibition an authority to proceed with a proceeding initiated under a special jurisdiction.

However, in this case the situation is different inasmuch as the Respondent Nos. 3 and 4 in their counter-affidavit have categorically admitted that the lands in question are covered by the town lease dated 2.12.1942 as contained in Annexure 2 to the writ application. In fact, the Respondents Nos. 3 and 4 who have filed identical counter affidavits staled the following:

(4) That so far as paragraph 4 of the writ application Respondent no 3 has to say that Hari Alfried Toppo never held and possessed a House premises situated on the lease hold land granted under u town lease by the Govt. of Bihar, in regard to plot No. 1085, Holding No. 862 situated on Purulia Road commonaly called Dangra Toli and admittedly it comes under Municipal Area, now Ranchi Municipal Corporation. This is the land of Josephine Dhan who possessed it since 1938 and this Josephine Dhan was my mother end now she is dead. The property i.e. plot No. 1085. Holding No. 862 has been purchased by my mother with her own self earned money. It is self purchased property of my mother Josephine Dhan any my fathar Hari Alfried Toppo has not given a single penny in regard to this rurchase. Property of Annexure I is the property of Josephine Dhan and not of Hari Alfried Toppo.

(5) That so far paragraph 5 of the writ application Respondent No. 3 has to say that Hari Alfried Toppo had never act quired the above house premises by virtue of his purchase. It is a mere allegation that by Benami Transaction Jose phine Dhan had got the land by Registered Sale dated 21.9.1938. The truth is that Josephine Dhan has purchased this land by her own self earned money which the had earned by herself, it h herself, acquired property.

(6) That so far as paragraph 6 of the aforesaid writ application Hari Alfried (sic) never obtained renewal of the town lease in his name because Annexure-2 is clear that it is the land in the name of Josephine Dhan and Josephine Dhan had entered and got renewed Town lease which was granted on 2 12 1912 and was duly registered.

From a perusal of the aforementioned Town lease which is contained in Aunexure-2 to the writ application, it is evident that the said lease was granted for the purpose of construction of a dwelling house.

The provisions of Chhotanagpur Tenancy Act, 1908 are applicable, to the Raiyati Holdings alone Section 6 of the said Act define Rajyat in the following terras:

Raiyat means primarily a person who has acquired a tight to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the and of partners; and includes the successors in interest of persons who have acquired such a right, but does not include a Mundari Khunti Kattidar.

Form a perusal of the aforementioned provisions it is, therefore, clear that a Raiyati land must be such land which is held by a Raiyat for the purpose of cultivating the same by himself or by members of his family.

A town lease granted in terms of Khas Mahal Manual for the purpose of construction of dwelling house and for residential purposes cannot be said to be a ''land'' which comes within the purview of the Chhotanagpur Tenancy Act, 1908.

In terms of Section 71(A) of the Chhotanagpur Tenancy Act the Deputy Commissiener derives jurisdiction to pass an order of restoration of lands belonging to a Raiyat, inter-alia in the event; a transfer has been made in respect of a Raiyati Holding by a Raiyat, who is a member of a Scheduled tribe in contravention of Section 46 of the Chhotanagpur Tenancy Act or any other provisions thereof and/or if such transfer has been obtained fraudulently.

A proceeding u/s 71(A) of the Chhotanagpur Tenancy Act would thus be maintainable only if the conditions precedent as prescribed therefore ere fulfilled.

In view of the admitted position before this Court that the subject matter of the proceedings in question are the lands which were taken settlement of in terms of the indenture of lease dated 2.12.1942 as contained in Annuxure-2 to the writ application and further in view of stipulation made therein, there cannot be any doubt that the lands in question do not come within the purview of the provisions contained in Section 71(A) of the Chhotanagpur Tenancy Act.

In Aswini Kumar Roy v. State of Bihar reported in 1987 B.L.T. 332 (Rep.) and Miirlidhar Gupta v. State of Bihar reported in 1988 B.L.J.R.152 it has been held by this Court that ''Chaparbandi Lands'' are nor covered-under the provisions of the Chhotanagpur Tenancy Act.

It is true that normally a writ court, despite its having power f do so, directs the court of special jurisdiction to investigate the jurisdictional facts by way of a preliminary, issue. Reference in this connection may be made to Express Newspapers (P), Ltd. v. the Workers reported in AIR 1953 S.C. 569.

However, in view of the common stand taken by the parties before this Court, in my opinion, direction to the Respondent No. 1 to determine the jurisdictional facts by way of preliminary issue will be an idle formality.

So far as the submissions raised on behalf of the earned Counsel appearing on behalf of the Respondent Nos. 3 and 4 are to the effect that the predecessor in the interest of the Petitioner had no transferable interest in the lands in question is concerned, the same, in my view, is irrelevant for the purpose of a decision of this writ application inasmuch as such a question of title can be raised by the said Respondents only in a duly constituted civil suit or in any other proceeding as is permissible in law. A question of this in respect of an immovable-property cannot be the subject matter ofa decision in a writ application.

In this view of the matter, this writ petition is allowed and order dated 3.2.1986 as contained in Annexure-6 to the writ application is quashed, and it is held that the aforementioned case No. 85/1985-86 pending before the respondent No. 1 is not maintainable.

Before parting with the case, it must be mentioned that I have not applied my mind with recard to the merits of this case.

In the facts and circumstances of this case, there will be no order as to costs.