The Jharkhand High Court has held that a registered deed executed in violation of Section 46(1) of the Chhotanagpur Tenancy Act, 1908 cannot be recognised as a valid transaction, observing that even a registered deed cannot validate a transaction prohibited by the statute.

A Single Judge Bench of Justice Sanjay Kumar Dwivedi was hearing a writ petition challenging the order dated May 10, 2013 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh, which had set aside the order of the Additional Collector, Hazaribagh concerning restoration of land under Section 46(4) of the Chhotanagpur Tenancy Act.

The dispute concerned 0.92 acres of land in Khata No. 42, Plot No. 1273, situated at Village Ghutwa, P.S. Patratu, District Hazaribagh (now Ramgarh). The petitioners claimed that the land was recorded in the names of Bhikhwa Bediya and Bepata Bediya during the last survey settlement. According to them, after Bepate Bediya died issueless, his brother Bhikhwa Bediya came into possession of the entire land, which thereafter devolved upon his son Sukra Bediya.

The petitioners stated that Sukra Bediya subsequently sold the land to the original petitioner, Sadik Miyan, through a registered sale deed dated July 2, 1970, bearing Sale Deed No. 6111. The petitioner claimed to have remained in peaceful possession of the land and cultivated it without objection since then.

The original petitioner later died and his legal heirs and successors were substituted in the proceedings. The petitioners also contended that they had applied for mutation of their names in the revenue records, but the mutation was not carried out despite the Circle Officer issuing an Aam Ishtehar inviting objections.

Respondent No. 7, however, claimed to have purchased 0.67 acres of the same plot from Sukra Bediya on May 13, 2003 and alleged that she was subsequently dispossessed from the land by the original petitioner. The petitioners disputed this claim and argued that respondent No. 7 had never been in possession of the land. They further contended that respondent No. 7 could not invoke Section 46(4) of the Chhotanagpur Tenancy Act as she was not a member of a Scheduled Tribe. It was also argued that her restoration application was barred by limitation under the proviso to Section 46(4-A)(a) of the Act. The petitioners relied upon the 12-year limitation period under the provision and contended that the revisional authority had wrongly interfered with the Additional Collector's order.

The High Court, however, found that the land was Adivasi land and rejected the contention that the Bedia community did not fall within the Scheduled Tribes. The Court referred to the Gazette notification dated September 6, 1950 and observed that it clearly stipulated that Bedia was included within the Scheduled Tribes in Bihar. The Bench further referred to Section 6(1) of the Chhotanagpur Tenancy Act and observed that the expression “raiyat” includes a successor-in-interest.

The Court noted that respondent No. 7 had purchased the land in question in 2003 after obtaining permission from the Deputy Commissioner in Case No. 40/2002 dated January 13, 2003. The land was also mutated in her name. The Court observed that the grant of such permission indicated that, in the records of the revenue authority, the land continued to retain its Adivasi character and that permission had therefore been granted under Section 46(1) of the Act.

The Bench thereafter referred to Section 46(3) of the Chhotanagpur Tenancy Act and observed:

“Sub Section 3 of Section 46 of the said Act, stipulates that any deed in violation of Section 46(1) of the said Act will not be recognized as valid by any Court; either Civil, Criminal or Revenue, and further, it is well settled that the collusive transaction by way of even registered deed in light of Sub Section 3 of Section 46 of the said Act, 1908, cannot be said to be a valid transaction in light of the provisions made in the Act, 1908.”

The Court thus held that a transaction could not be treated as valid merely because it had been effected through a registered deed when it was in violation of the statutory protection governing Adivasi land.

On the question of limitation, the Court noted that respondent No. 7 had purchased the land in 2003, the land was mutated in her name and she was dispossessed within six months thereafter. The Court therefore held that the limitation contemplated under the proviso to Section 46(4-A)(a) did not come in the way of respondent No. 7's restoration proceedings.

The Bench also referred to the Full Court judgment of the Patna High Court in Bina Rani Ghosh v. Commissioner, observing that although that judgment had also considered Section 71A of the Act, its findings concerning Section 46 and the fraudulent aspect were applicable to the present case.

Finding no illegality in the order passed by the revisional authority, the High Court dismissed the writ petition.

Case Title: Kayum Ansari v. State of Jharkhand

Case Number: W.P.(C) No. 5821 of 2013

Appearance:For the Petitioners: Mr. Rajiv Nandan Prasad, Advocate; Mr. Sushant Kumar Sinha, Advocate.For the State: Mr. Sanjay Kumar Tiwari, S.C.-I; Mr. Krishna Kumar Bhatt, A.C. to S.C.-I.For Respondent No. 7: Mr. A.K. Sahani, Advocate.

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