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TMI Blog2013 (3) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the same are illegal, without jurisdiction and against the provisions of Registration Act. Heard the learned senior counsel for the petitioners as well as the learned counsel appearing for the respondents-State Government and perused the materials placed on record. 2. The learned senior counsel for the petitioners submitted that the land of 12.73 acres were acquired under regulation 25A of the Santhal Pargana Rent Regulation, 1886 (Regulation 11 of 1886) for Dabur India Ltd. It is submitted that the then Zamindar through Manager Rohini Wards Estate, Deoghar applied for acquisition of land for erection of manufacturing unit and construction of dwelling houses purposes under Section 25A of the Santhal Pargana Rent Regulation Act, 1886 for an area of 12.73 acres for which a proceeding was initiated in the Court of S.D.O. in L.A. Case No. 3 of 1943-44. Upon the payment of compensation to the Raiyats permission was accorded to acquire the land for Mr. P.C. Burman of Dabur India Ltd. for manufacturing and construction of dwelling houses purposes. The Company Dabur India Ltd. further acquired 2.03 acres of land through the sale deed which is Basauri land over which there is no dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Deoghar stating that the Company was entitled to transfer the land of 15.39 acres. It is further submitted that inspite of the aforesaid letter the Deputy Commissioner, Deoghar did not give permission to sell the land and again sent the file back on 16.8.2006 to the Minister, Revenue, Thereafter certain more documents were called for by the Department from the D.C. Deoghar which was given by the D.C. Deoghar vide letter dated 26.7.2008 in which an objection was raised on the basis of the earlier letter of the department that the land was acquired for the specific purpose and therefore the land could not be used for any other purpose and therefore the transfer of land for any other purpose was not legal and not in accordance with Section 44A of the I.A. Act, 1894 and/or Section 53(6) of the SPT Act. It is further submitted that thereafter Dabur India Ltd. again gave representation on 16.10.2006 in which enquiry report of S.D.O. Deoghar and L.A.O., Deoghar conducted in 2004 was referred in which it was held that there was no legal impediment in the transfer of land. Thereafter again after the approval of the Principal Secretary, Land Revenue Department. Departmental Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy Commissioner vide Annexure - 5 14 and submitted that same analogy as contained in the provisions of Land Acquisition Act shall apply to the acquisition made under the Santhal Pargana Tenancy Act. It is further submitted that so far as question of registration of land is concerned, Section 20 sub-section (3) fit (4) of Santhal Pargana Tenancy (Supplementary) Act 1949 provides that no transfer in contravention of sub-section (1) (2) of Section 20 of the Act shall not be registered or in any way recognized nor any Court or Officer shall pass any order or decree in respect thereto. It is submitted that registration cannot be done in contravention of Section 20 of sub-section (1) and (2), in view of the provisions contained in Section (3) and (4) of the Santhal Pargana Tenancy (Supplementary) Act of 1949. It is submitted that letter No. 278, dated 27-4-06 of the Department of Revenue fit Land Reforms does not provide any clear cut direction to the Deputy Commissioner. In fact the contents of the letter is contradictory to the letter issued by the Commissioner-cum-Secretary, Revenue Land Reforms Department, bearing letter No. 569/Sa. Ko. dated 24/8/2004 and therefore Deputy Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affected adversely should approach the Court for appropriate relief. The existence of the right or interest is the essential requirement for seeking relief in a petition filed under Article 226 of the Constitution of India. On perusal of the document (Annexure-11) and various clauses mentioned therein and taking into consideration the provisions of the Registration Act as also the endorsement put on the said document, it appears that the present petitioners are having locus to file such writ petition seeking writ of mandamus under Article 226 of the Constitution of India as the petitioners are appears to be aggrieved persons. In view of the provisions contained in the Registration Act, the petitioners being aggrieved persons has a right to prefer an appeal against the refusal/rejection of registration by the respondents-authorities and in that view of the matter, if the petitioners are having right to prefer an appeal under the provisions of Registration Act, petitioners can certainly prefer a writ petition under Article 226 of the Constitution of India. Therefore, arguments advanced by the teamed counsel for the respondent-State Government regarding maintainability of the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Santhal Pargana Tenancy (Suppl. Provisions) Act, 1949 repealed Section 25 and 25A of the Regulation II of 1886 and new Section 53 was substituted which is quoted as under: 53. Acquisition of land by landlord for building and other purposes-(1)(a). The landlord of village who is desirous of acquiring the holding or part of the holding or any raiyat in such village or any land over which the inhabitants of such village have any common right for any reasonable and sufficient purpose having relation to the good of the holding, village or estate, or for the erection of building or for any religious, educational or charitable purpose, or irrigation, or effecting any agricultural or horticultural improvement or giving effect to any national policy of the Govt. may apply to the Deputy Commissioner for sanction to acquire the same. (b) The Deputy Commissioner may, on the application of a village headman, mul raiyat or raiyat of the Village or of his own motion, sanction, acquisition proceedings to be started with respect to such land as is referred to in clause (a), if he is satisfied after due enquiry that the acquisition is to be made for any of the purposes specified in the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thinks fair and reasonable and, on the failure of such persons to take back the land, the Deputy Commissioner may settle the land as if it were village waste land. 13. Thus it would be apparent that similar provisions with some modifications was inserted u/s. 53 of the Santhal Pargana Tenancy (Supplementary Provision) Act, 1949. This provision is under Chapter VI under the heading Acquisition of the land by the landlord for certain purposes. Section 53 of the Santhal Pargana Tenancy (Supplementary Provision) Act, 1949 is similar to the provisions for Section 25A of the Santhal Pargana Tenancy Act, 1886 with exception of sub clause 6 of Section 53, it gives power to the Deputy Commissioner for the restoration of land to the original raiyats or his heirs or to the person interested on such term as he thinks fair and reasonable and, on failure of such persons to take back of the land, the Deputy Commissioner may settle the land as it were village waste land. Deputy Commissioner can exercise this power within 5 years of taking possession. In present case the land in question is acquired in L.A. Case No. 3/1943-44 and L.A. Case No. 24/1944-45 under Section 25(A) of the Santhal Pargana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntendment. Their Lordships can have no doubt that provisions which if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. In view of these well established principles we are of opinion that the present case is governed by the old law as it stood before the amending Act, namely, Bihar Act 14 of 1949, and it follows, therefore, that the Deputy Commissioner had no jurisdiction u/s. 53(6) of Bihar Act 14 of 1949 to order restoration of the land to the defendants. We accordingly hold that there is no substance in this appeal and dismiss this appeal. There will be no order as to costs. 14. The provisions of Section 25A of Santhal Pargana Tenancy Act, 1886 and Section 44A of Land Acquisition Act, 1894 are completely different. Section 44A of Land Acquisition Act, 1894 provides as under: No company for which any land is acquired under this Part B shall be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame would not affect any accrued right under Section 25A of the Regulation II of 1886. 18. Thus any acquisition and settlement taken under Section 25A of Regulation II of 1886 would not be affected by Section 53 of the Santhal Pargana Tenancy Act. S. 53 and 53(6) of the Bihar Act 1949 would be prospective in effect and operation. 19. Again in the case of Dhena Hansda and Ors. vs. State of Jharkhand, (2003 (3) ICR 230) held that Section 25A of the Regulation II of 1886 permits the agricultural land to be changed to Basauri settlement and there is no restriction on such transfer under Section 20 of the SPT Act and the proceedings under Section 20 of the SPT Act would not be maintainable in respect of land settled under Section 25A of the Regulation II of 1886. 20. As per the Final Report on the Revision Survey and Settlement Operations in the District of Santhal Parganas, 1922-35 by J.F. Gantzer, a Basauri tenancies may be created in two ways:- (a) By settlement of waste land under Clause 3 of the record of rights and duties and (b) By acquisition under the provisions of Section 25A of Regulation II of 1886. According to custom and practice all Basauri holdings are transferable and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions contained in Section 20 of the Santhal Parganas Tenancy Act, read with Bihar Stamp (Prevention of under Valuation of Instruments) Rules. 1995. The said instruction as contained in Annexure-4 has got no application in the matter of transfer of a Basauri land. The very opening line of Annexure-6 which is the Order No. 1/07 of the Deputy Commissioner clarifies that the said instruction has been issued for the purpose of protecting the transfer of land which is otherwise restricted by the provisions of Section 20 of the Santhal Parganas Tenancy Act. The said instructions cannot be applied in the instant case in which a Basauri land has been sought to be transferred. The registering authority had erroneously asked for such verification in view of the said instruction of the Deputy Commissioner being the Office Order No. 10 dated 14.1.04 and Order No. 1/07 dated 4.1.07. It has been fairly conceded by learned J.C. to S.C. (L C) that the Basauri land does not come within the ambit of Section 20 of the Santhal Parganas Tenancy Act and the said instructions of the Deputy Commissioner cannot be made applicable in the cases of transfer, execution and registration of the sale deed. 8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get title merely by registered Sale Deed and it is an instrument only of transfer of what is possessed by the vendor and not more than that The title is not created by only Sale Deed but it is created in favour of the person from whom he purchased the property subject to foundational fact that sellers should be the owner and should have saleable right. It is also a well know principle that buyers beware which also indicates that if a buyer purchases any property without inquiring about the title of the property then he does so at his own risk. In some other cases also this court decided that the registering authority got no jurisdiction to refuse to register a document validly executed. While disposing of L.P.A. No. 8/2007 by terms of judgment dated 3.7.2007 this Court also directed that necessary instruction should be issued from the Office of the Advocate General, Jharkhand to all the Sub Registrars to act strictly in accordance with law and as per direction given by this Court in a series of decisions. That accordingly in compliance of the said judgment, the then Advocate General, Jharkhand, Ranchi by terms of his letter No. 6848 dated 24.8.2007 issued instruction directing tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question being Basauri and generating and earning profit out of it, the original raiyat or his heirs are also required to be compensated in a just and fair manner in the interest of justice as they have given up and lost their land at a very meagre amount of compensation i.e. Rs. 3182/- as per award given by the SDO, Deoghar in L.A. Case No. 3/43-44, when it was acquired for the development purpose. The main objects of the Santhal Pargana Tenancy Act is to protect the rights of raiyats and thereby to prevent the exploitation of raiyats. Therefore, in view of the peculiar facts and circumstances of the present case, the petitioner is required to be directed to deposit consignable amount. Accordingly, the petitioner shall deposit Rs. 15,00,000/- (Rupees Fifteen Lakhs) before the Member-Secretary, Jharkhand State Legal Services Authority, within one month from the date of order, who shall transmit the said amount to the District Legal Services Authority, Deoghar. The said deposited amount be distributed amongst the raiyats or their legal heirs, as the case may be, whose land has been acquired in pursuant to land acquisition made under Section 25-A of Regulation-II of 1886. The copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under the pretext of carrying out development activities such as industry, housing etc and subsequently for the sake of satisfying the condition of allotment such activities might have been done for some time and thereafter the lands are being sold free from any restriction with a plea that the land once used for such purpose become Basauri and such Basauri Land is transferable. The case in hand is a peculiar case and a good example of the instance referred above where the Learned Deputy Commissioner raised objection and thereby tried to restrain the petitioner from having registration of document in respect of land in question as the condition for which land was allotted to Dabur India is violated and not fulfilled. But as discussed above as per the settled position of law the Basauri land are transferable and saleable and registering authority cannot deny registration for want of no objection from Revenue Authority. Since it is settled position of law that registration of a particular document cannot be restricted if no other legal impediments exist and therefore this proposition of law shall have to be followed. But the situation which has taken place and which is likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..............Therefore, the law contemplates acquisition both for private and public purposes in terms of Section 299(2) of the Government of India Act, 1935. After its enforcement, the Provincial Legislature could not certainly enact law for the acquisition of a land for private purposes...........................................................The impugned enactment has been passed by the Provincial Legislature after the enforcement of the Government of India Act, 1935 and, therefore, the validity of the Act has got to be judged in the light of the provisions of Section 299 of the Government of India Act, 1935. Though section 53 of the Act provides for the payment of compensation but they do not fix the amount of compensation or specify the principle on which and the manner in which the compensation is to be determined and given as laid down in section 299(2). The amount of compensation has got to be determined by the Deputy Commissioner or other superior Executive authorities to whom the appeal or the revision could be filed whose decisions may be arbitrary and the desired end may not be achieved as no principles or manner of determination of compensation are given in the Act T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, the provisions of Section 53 of the Act are violative of both Articles 14 and 31(2) of the Constitution and also Section 299(2) of the Government of India Act, 1935 and have got to be struck down and the proceeding for acquisition taken under Sec. 53 of the Act (annexure E) must be quashed. In view of above, the State Government is directed to consider to bring appropriate amendment in Section 53 of the Act so as to prevent misuse of law and thereby safeguard the interest of raiyat by providing suitable provision and adequate machinery for fair and just compensation. Therefore, respondent State Government is directed to consider the prevailing position in this region and accordingly introduce suitable amendment in the existing law so as to safeguard the interest of Raiyats in such eventuality. The State Government shall also consider to bring amendment in law, in case where the condition of allotment are not fulfilled after acquisition of land u/s. 25A of the Regulation to forfeit/vesting of such land in government so that government can make use of such land for any public purpose whereby public at large of that area can be benefited. With the aforesaid observation and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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