SITU SAHU AND ORS.versusTHE STATE OF JHARKHAND AND ORS.

A                         SITU SAHU AND ORS.
                                   v.
                   THE STATE OF IBARKHAND AND ORS.

                              SEPTEMBER 10, 2004

B             [SHIVARAJV. PATIL A!'m B.N. SRIKRISHNA, JJ.]

         Land Laws:

          Tenancy--Chota Nagpur Tenancy Act, 1908-Sections 71A & 46-
C   Restoration ofpossession to Scheduled Tribe over land unlawfully transferred-
    Power under S. 71 A-Exercise of-Held: Surrender of tenancy by members
    of Scheduled Tribes on 7-2-1938 ,followed by settlement of land in favour
    ofAppellants on 25:2-1938 was in quick succession and could be considered
    as 'transfer' under the Act-But no provision of law existed in 1938 under
    which the transfer was prohibited-Even assuming the transfer as fraudulent,
D   power under S. 71A to restore possession could have been exercised only
    within reasonable time-Restoration ofpossession wa! sought in 1978 after
    an unreasonable long period of 40 years-Special Offecer who had allowed
    the application did not exercise his powers under S. 71 A within a reasonable
    period of time-Limitation Act, 1963-Article 65.

E         In the area to which the Chota Nagpur Tenancy Act, 1908 applied,
    certain lands were originally recorded in the names of 'K', 'B' and 'J',
    ancestors of one 'G'. They were the recorded tenants of land. 'J' died
    immediately after the revisional survey while 'K' and 'B' surrendered
    ten.ancy ad measuring 2.65 acres of land to the landlord by a registered
F   deed dated 7-2-1938. Soon thereafter, the landlord settled the land on
    the appellants on 25-2-1938. The appellants have been Jin possession of
    the land and cultivating it.

       On 3-2-1978 the said 'G' (fifth Respondent) flied an application
  under Section 71A of the Act for restoration of the land in question on
G the ground that the appellants ·had fraudulently acquired the land by
  means of a 'sada hukumnama'. 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 'G',
  who were members 'of Scheduled Tribes and khatiyani holders of the
H land in question. Although, originally there wer~ four co-sharers in the
                                        258
                          SITU SAHU v. STATE                              259

land, namely, 'K', 'B', 'J' and 'G', the tenancies were surrendered only          A
by 'K' and 'B' and not by the other two. 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         B
of Section 71A of the Act the tribals could not have been dispossessed
from the aforesaid land. Thus he allowed the application for restoration
of possession to the applicant 'G'. The appellant appealed to the
Additional Collector, Ranchi who affirmed the view of the Special Officer
A revision petition was also dismissed by the Commissioner.
                                                                                  c
      The appellants challenged the order of the Revenue Authorities by
filing a writ petition. 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          D
Court had to give a broad and liberal construction to the legislative
intent of protection. Hence the appeals.

     The appellants contended that there is no retrospective effect given
to Section 71A so as to cover transactions which took place in the remote
past and so the power to restore possession could not have been exercised         E
under section 71A; and that 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.

     Allowing the appeals, the Court
                                                                                  F
      HELD: 1.1. 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 choses to exercise his              G
power under Section 71A it would be futile to contend that the period
of limitation under Limitation Act has expired. (266-F, G]

     1.2. 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,             H
    260                 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 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 suffici.ent
    power However, even such power cannot be exercised after an
    unreasonably long time during which third party interests might have
B   come into effect. Thus, the test is not whether the period of limitation      (
    prescribed in the Limitation Act of 1963 had expired, but whether the
    power under Section 71A was sought to be exercised after unreasonable
    delay. [266-G, H; 267-A]

        Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K Suresh Reddy
C   and Others, [2003] 7 SCC 667, relied on.

         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 sec 73, referred to.

D        2. The Court will assume that the s1;1rrender of tenancy on
    7-2-1938 and the settlement of the lands mt 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. There was no question of the transfer Which
E   took place in 1938 being in contravention of section 46. Nonetheless, it
    has not been established that the transfer was contrary to any other
    provisions of the Act. [267-E]

         3. Even on the argument that the transfer was fraudulent, the
    appellants are entitled to succeed. For even assuming that the transfer
F   was fraudulent, the power under Section 71A could have been exercised
    only within a reasonable time. Looking !o the facts and. circumstances
    of the present appeal, the Court is 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
G   of power, even if it is not hedged in by a period of limitation. (267-F, G)

          Jai Mangat Oraon v. Mira Nayak and Others, [2000) 5 SCC 141,
    relied on.

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2414-15 of
H   1999.
                 SITU SAHU v. STATE [SRIKRISHNA, J.]                       261

    From the Judgment and Order dated 3.7.97/22.10.97 of the Patna High            A
Court in C.W.J.C. No. 98/88(R) I C.R. No. 56 of 1997(R).

       S.B. Sanyal and Ranjan Mukherjee for the Appellants.

       Manish Mohan and Gopal Prasad for the Respondent for State.
                                                                                   B
       P.S. Narasimha (AC) and Ananga Bhattacharya for the Respondent Nos.
5-6.

       The Judgment of the Court was delivered by

       SRIKRISHNA, J. : These appeals, by special leave call into question
                                                                                   c
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   D
names of Kochya Oraon, Bachua Oraon and Jagna Oraon, ancestors of one
Goinda Oraon. They .; ~re 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           E
7.2.1938. Soon thereafter, the landlord settled the land on the appf\lants 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         F
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            G
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 .193 8 and the
settlement in favour of the appellants was made on 25.3.1938. The Special          H
    262                   SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A   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 7 I A 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
B
    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 Commissioner upholding the views of the two authorities
    below.
c
          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 7 I A of the Act is a beneficial legislation and
    the legislative intent is to extend protection to a class of citizens who were
D   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
E   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
F
    applicable material legal provisions. The Chhota Nagpur Tenancy
    (Amendment) Act1 1908 is of 1908 vintage. By the amending Act of 194 7
    (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 amember ofa Scheduled Tribe.
G   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
H   raiyat belonging to a Scheduled Tribe is recognized in law and that is where
               SITU SAHU v. STA TE [SRIKRISHNA, J.]                      263

it has been done with the previous sanction of the Deputy Commissioner. By       A
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).           B
Section 71A reads as follows:

        "71A. Power to restore possession to members       of the Scheduled
        Tribes over land unlawfully transferred -

              If at any time it comes to the notice of the Deputy Commissioner   C
        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 place 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,
                                                                                 D
        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   E
        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 noticed is that     F
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      G
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          H
    264                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A                 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 7 lA so as to cover transactiohs
                  which took place in the remote past. Hence, the power to
B
                  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
c                 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
D   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.

E         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 Jaw, but must necessarily arise out of the facts. Hence, it was
F   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;
G   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 Joi Mongol Oraon v. Mira Nayak and Others,
    [2000] 5 SCC 141; Jbrahimpatnam Taluk Vyavasaya Coolie Sangham v. K.
    Suresh Reddy and Others, [2003] 7 SeC 667; State of Rajasthan v. Shankar
H   Lal Kunda Ram Banwarilal, [1992] Supp. 2 sec 76; and Uttam Namdeb
                 SITU SAHU v. STATE [SRIKRISHNA, J.]                         265

Mahale v. Vittal Deo and Others, [1997] 6 SCC 73.                                    A

      Apart from the reasoning given by the High Court, it appears to us that
the judgment of this Court in lbrahimpatnam (supra) is decisive on the
contention oflimitation urged before us. Under somewhat similar circumstances
suo-motu        power      was      given    to    the      Collector       under    B
section SOB (iv) of the Andhra Pradesh (Tela"ga;.a 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 tc the regularity of such proceedings and pass such
order in relation thereto as he may think fit. In this judgment, to which one        C
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 contend that the suo motu power
         could be exercised even after a long delay of 13-15 years because           D
         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        E
         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            F
         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              G
         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          H
    266                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A            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
B
             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 Jetter. It must be read
c            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
D
             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
E            time" should be unguided and arbitrary. In this view, "at any time"
             must be understood as within a reasonable time depending on the
             facts and circumstances of each case in the absence of prescribed
             period of limitation."

F           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 71 A it would be futile to contend that the
G   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
H   in by making an officer of the State responsible for doing social justice by
                      SITU SAHU v. STATE [SRIKRISHNA, J.]                       267

    dothing him with sufficient power. However, even such power cannot be               A
    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               B
     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               C
     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         D
     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
                                                                                        E
     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      F
      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
      lbrahimpatnam (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        G
    · 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     H
    268                   SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A   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.

B         In the result, therefore, we are of the view that the Special Officer ought
    not to have exercised his powers under Section 71A of the Act after such
    an unreasonable long period of time, in the facts and circumstances of the
    case brought to light.

C        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 415177-
    78 is dismissed.

          There shall be no orders as to costs.
D
         We place on record our appreciation of the able assistance rendered
    by the Amicus Curiae Shri P.S. Narasimha.

    B.Bm.                                                         Appeals allowed.