Anubha Rawat Choudhary, J. - Heard Mr. V.P. Singh, Senior Advocate assisted by Mrs. Rashmi Kumar, counsels appearing on behalf of the petitioner.

2. Nobody appears on behalf of the private respondent nos. 6 and 7.

3. Heard Mr. Ashish Kumar Thakur, A.C. to S.C. (L&C) appearing on behalf of respondent nos. 1 to 4.

4. This writ petition has been filed for the following reliefs:-

"That the instant writ application is for the issuance of a writ or in the nature of certiorari or any other appropriate writ(s)/order(s)/direction(s) for quashing the Revisional order dated 12.11.2001 as contained in Annexure-3 passed by respondent no.2, The Commissioner, South Chotanagpur Division in Singhbhum (East) in Rev. Appeal No. 461 of 1995 purportly treating as Revision Under Section 217 of the C.N.T. Act by terms thereof the Respondent No. 2 has set aside (a) the order of the Deputy Commissioner Singhbhum (East) passed in S.A.R. Appeal No. 304 of 1998-99 (a mistake for 89-90) which was heard along with S.A.R. No. 23/89-90 dated 26-9-1995 and that dated 28-1-89 passed by Land Reforms Deputy Collector Singhbhum East at Jamshedpur exercising the power and function of the Deputy Commissioner passed in S.A.R. Case No. 6/83-84 and S.A.R. Case No. 20/86-87 thereafter allowing the said revision application and prayer of the Respondent No. 5 to 7 for restoration of possession of the land covered by S.A.R. Case No. 6 of 1983-84 and S.A.R. Case No. 20/86-87 and further directing the Deputy Commissioner East Singhbhum to put the applicants-respondent No. 5 to 7 in possession of the land in question within 15 days from the date of the order."

5. The property involved in this case is R.S. Plot No. 5563, 5588, 5589, 5590, 5591, 5592, 5598, 5599, 5560 and 5569 of Khata No. 6 Mauza Jojobera, Thana No. 1196 and R.S. Plot No. 5661, 5662, 5663, 5664, 5665 of Khata No. 6 of Mauza Jojobera, Thana No. 1196 belonging to the District Singhbhum East. The private respondent herein had filed two separate applications for restoration of the aforesaid lands under Section 71 A of Chotanagpur Tenancy Act, 1908 which were registered as R.P. Case No. 6 of 1983-84 and R.P. Case No. 20 of 1986-87. The private respondents claimed to be the descendants of the recorded raiyat and claimed that they have been dispossessed from the property and that the property involved in this case is presently in possession of the petitioner. The land Reforms Deputy Collector, Dalbhum Jamshedpur heard both the cases analogously and vide common order dated 28.01.1989 rejected both the cases holding that the predecessor in interest of the private respondents were out of possession since 1948 and accordingly held that the prayer of restoration in both the cases was time barred. Against which the private respondents filed two separate appeals being S.A.R. Appeal No. 23 of 89-90 & S.A.R. Appeal No. 304 of 89-90 which was rejected by common order dated 26.09.95 holding that land in question figured in the lease documents executed between the then Government of Bihar and M/s. Tisco besides the said lands were utilized by the writ petitioner under an arrangement with M/s. Tisco in 1963-64. Being aggrieved by the appellate order the private respondents filed revision before the Commissioner, South Chotanagpur Division, Ranchi (now Kolhan) which was registered as Miscellaneous Revision Appeal No. 461 of 1995 and was heard on 30.07.2001 and the judgment delivered on 12.11.2001 holding that since the initial transfer itself was illegal therefore all the subsequent transactions are also illegal.

6. Counsel for the petitioner submits that plot no.5563 and 5569 was purchased by the petitioner vide registered deed dated 10.03.1964 after due permission from the Deputy Commissioner which has been mentioned in the registered deed itself and this aspect of the matter has not been considered by the revisional authority. He further submits that the Circle Officer had recorded a specific finding that the deed of sale dated 10.03.1964 is valid but while setting aside the order of the Deputy Collector land Reforms, the authority has not recorded any contrary finding so far as the deed dated 10.03.1964 is concerned and accordingly the order of the Commissioner to the extent it related to deed dated 10.03.1964 is perverse and is fit to be set-aside. This property which was purchased by the petitioner vide deed dated 10.03.1964 was subject matter of R.R Case No. 6 of 83-84.

7. So far as the remaining property in R.R Case No. 6 of 83-84 is concerned, the counsel for the petitioner has submitted that the same was subject matter of T.A. Miscellaneous Case No. 13 of 1943-44 which was a proceeding under Section 50 of Chotanagpur Tenancy Act, 1908 initiated by superior land lord M/s. Tisco for acquisition of land of various properties including Khata No. 6. The said T.A. Miscellaneous Case No. 13 of 1943-44 was initiated against several tenants and it was ultimately decided against the recorded tenant vide order dated 28.04.44 and there was a direction to deliver vacant possession of the said land to M/s. Tisco and accordingly the possession of the property was delivered to M/s. Tisco as back as on 23.5.44. Thereafter this property was sub-leased to the petitioner and by virtue of the sub-lease the petitioner has come in possession of the property. Counsel for the petitioner submits that by virtue of a quasi-judicial order M/s. Tisco was put in possession of the property which was subsequently sub-leased to the petitioner and accordingly there can be no dispute that the private respondent herein were dispossessed from the property as back as in the year 1944. The Deputy Collector Land Reforms has taken into consideration this aspect of the matter and also taken into consideration the order dated 23.04.1944 passed in T.A. Miscellaneous Case No. 13 of 1943-44 while holding that the proceeding initiated against the petitioner is time barred. It is submitted that this aspect of the matter has also not been considered by the Commissioner and on this account the order passed by the Commissioner is perverse and is fit to be set-aside.

8. So far as the property involved in R.R Case No. 20 of 86-87 is concerned, the counsel for the petitioner submits that M/s. Tisco came in possession of that property by virtue of deed of surrender executed in the year 1948 which was a registered deed and accordingly the private respondents herein were dispossessed from the property as back as in the year 1948. This particular property was also sub-leased to the petitioner by M/s. Tisco limited by virtue of registered deed of sub-lease dated 21.08.1969. Counsel for the petitioner submits that although the petitioner is in possession of this property only from 1969 by virtue of the registered sub-lease but the fact remains that lease the private respondent or their predecessors were disposed from this property as back as in the year 1948 by virtue of registered deed of surrender. In view of this fact, it is submitted that the Deputy Collector Land Reforms held that the proceeding initiated against the petitioner is time barred. It is submitted that this aspect of the matter has also not been considered by the Commissioner and on this account the order passed by the Commissioner is perverse and is fit to be set-aside.

9. Counsel for the petitioner submits that the entire property involved in this case excluding the plot no.5563 and 5569 covered by sale deed of 1964 are lease hold property of M/s. Tisco and the petitioners are the sub-lessee of the property. Counsel submits that as the petitioner has rightly come in possession of the property and every aspect of the matter was rightly considered by Land Reforms Deputy Collector while passing order including the point of limitation. It is submitted that the learned Commissioner while passing the impugned order has not taken into consideration or has not discussed any of the reasons which has been recorded in the order passed by Land Reforms Deputy Collector. He relied upon the judgment passed by Honble Supreme Court in the case reported in (2004) 8 SCC 340 and submitted that even assuming though not admitting that the private respondents were illegally dispossessed or the transfer was fraudulent but the private respondents having filed the application for restoration much after considerable period and beyond reasonable period of time, and now on the property the petitioner has set up its industrial unit, therefore in view of the ratio laid down by the Honble Supreme Court, the Land Reforms Deputy Collector had rightly passed the order that the petition filed by the private respondents was time barred. He submits that this aspect of the matter has not been properly appreciated by the learned commissioner in the impugned order and accordingly the same is fit to be set-aside.

10. However, on the other hand counsel appearing on behalf of the respondent-State submits that so far as the registered sale deed dated 10.03.1964 relating to plot nos. 5563 and 5569 are concerned he is not in a position to dispute the legality and validity of the sale deed particularly in view of the fact that the permission obtained from Deputy Commissioner has been mentioned in the sale deed itself.

11. He further submits that so far as other property in R.R Case No. 6 of 1983-84, which was transferred to M/s. Tisco by virtue of order passed in T.A. Miscellaneous Case No. 13 of 1943-44 vide order passed in the year 1944 are concerned, he is not in a position to comment on the legality and validity of the said order.

12. However, so far as R.R Case No. 20 of 1986-87 is concerned, the counsel for the respondent-State submits that the transfer is by way of deed of surrender of the year 1948 which is subsequent to the amendment of Section 46 of the Chotanagpur Tenancy Act, 1908 whereby a prior permission of the Deputy Commissioner was required to be taken prior to transfer and there being no prior permission, the transfer by way of deed of surrender is absolutely illegal and therefore the possession by virtue of such transfer cannot be recognized. Counsel for the respondent on this point has relied upon the judgment passed by this Court reported in (2005) 1 JLJR 98, (1987) PLJR 533 as well as (2002)2 JLJR 534. The counsel submits that the deed of surrender cannot be recognized in absence of proper permission from the Deputy Commissioner even if it is a registered document. Counsel for the respondent state also submits that as per the report of the Circle Officer, Jamshedpur the petitioner was in possession of the property only for the period of 18 to 19 years and accordingly the application was rightly filed and it was within the period of limitation as it was filed with a reasonable time. He also submits that so far as rent in connection with the property is concerned it was paid by the recorded raiyat till the year 1982-83.

13. After hearing counsel for the parties and after considering the materials on record, this Court is inclined to allow the writ petition on account of following facts and reasons:-

The property involved in R.P. Case No. 6 of 1983-84

(a) So far as the property as contained in registered sale deed dated 10.03.64 relating to plot nos. 5563 and 5569 is concerned, from the perusal of the deed itself, it is apparent that due permission from the Deputy Commissioner, East Singhbhum was taken and the permission which was granted was under Section 49 Sub Section 3 of Chotanagpur Tenancy Act, 1908. Accordingly, this sale deed is valid in the eyes of law therefore, this Court finds that this transfer which was made in favour of the petitioner was in accordance with law. This aspect has not been considered by the commissioner while passing the impugned order. This aspect of the matter could not be disputed even by the counsel appearing on behalf of the respondent-State.

(b) So far as the remaining property in R.P. Case No. 6 of 1983-84 is concerned, it appears that the possession of this property was given to M/s. Tisco as back as in the year 1944 by virtue of the aforesaid order passed in T.A. Miscellaneous Case No. 13 of 1943-44 vide order passed in the year 1944 and M/s. Tisco had sub-leased this property to the petitioner by virtue of registered sub-lease deed dated 21.08.69. From the perusal of this documents, it appears that private respondents were dispossessed from the property by virtue of quasi-judicial order and this aspect of the matter has not been denied by the counsel appearing for the respondent state. This aspect has not been considered by the commissioner while passing the impugned order.

The property involved in R.P. Case No. 20 of 1986-87

(c) So far as the property involved in R.R Case No. 20 of 1986-87 is concerned the private respondents have not mentioned the date of dispossession in their application for restoration of land and the Circle Officer found that the petitioner is in possession of this property only for a period of 18 to 19 years but the report of the Circle Officer does not give the date of dispossession of the private respondents or their predecessors from the property.

(d) Date of dispossession of the private respondents or their predecessors from the property and date of possession of the petitioner has to be different in the instant case as the petitioner has been claiming that the private respondents or their predecessor were dispossessed from the property through a registered deed of surrender executed as back as in the year 1948 in favour of M/s. Tisco and the petitioner came in possession of the property subsequently by way of registered lease.

(e) This becomes relevant particularly in view of the fact that the deed of surrender which was registered document was executed in favour of M/s. Tisco. It was fundamental to the case at hand, so far as the private respondents are concerned, to give their exact date of dispossession or tentative date dispossession which was admittedly not given by the private respondents. On the other hand, the specific case of the petitioner is that the private respondents were dispossessed as back as in the year 1948 by virtue of registered deed of surrender executed in the year 1948 in favour of M/s. Tisco. The Land Reforms Deputy Collector, after considering the facts and circumstances of this case found that the private respondents A/ere dispossessed from the property as back as in the year 1948 and held that the petition for restoration of land was time barred.

(f) It is also relevant to note that M/s. Tisco was never a party respondent or was never noticed by the authorities although it was in their favour registered deed of surrender was executed by the recorded tenant. The Land Reforms Deputy Collector has recorded a specific finding that the private respondents or their predecessors were dispossessed from the property as back as in the year 1948 and this aspect of the matter has not been considered by the Commissioner while passing impugned order.

(g) So far as the contention of the respondent that the deed of surrender cannot be recognized or considered for the purposes of possession or even for the purposes of title, as the same is a void document being in contravention of Section 46 of Chotanagpur Tenancy Act, 1908, the respondents have relied upon the judgments reported in (2005) 1 JLJR 98, (1987) PLJR 533 as well as (2002)2 JLJR 534 .

(h) In the judgment reported in (1987) PLJR 533 , the Honble Patna High Court was of a definite view that a deed of surrender of land by a recorded raiyat without the permission of Deputy Commissioner as required under section 46 of Chotanagpur Tenancy Act, 1908 is invalid. There is no doubt about the said proposition of law but at the same time the issue of limitation was not involved in the said case. In the judgment passed by Honble the Supreme Court reported in (2004) 8 SCC 340 it has been held that even if the transfer is by way of fraudulent method then also the application for restoration has to be filed within a reasonable time although no period of limitation has been prescribed under Section 71A of Chotanagpur Tenancy Act, 1908. It would be useful to quote para 14 and 15 of the said Judgment reported in (2004) 8 SCC 340 which reads as under:-

"14. 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 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 Ibrahimpatnam the power under Section 71 A 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 71 A within a reasonable period of time. The lapse 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 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 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.

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

(i) In the judgment reported in (2002)2 JLJR 534 it has been held that transfer without permission of the Deputy Commissioner is absolutely illegal and inadmissible in evidence. In this judgment also the issue regarding unreasonable and inordinate delay regarding filing of application for restoration of land under section 71 A of Chotanagpur Tenancy Act, 1908 was not involved. The cases of even fraudulent transfers coupled with inordinate delay in filing application for restoration are fully covered by the aforesaid Judgment reported in (2004) 8 SCC 340. Thus while considering the cases of transfer by way of surrender even in cases where surrender is without permission of the Deputy Commissioner, the authority has to consider the date of dispossession for the purposes of examining the point of unreasonable delay in filing application for restoration of land under section 71 A of Chotanagpur Tenancy Act, 1908. The matter has to be examined in the light of aforesaid Judgment reported in (2004) 8 SCC 340.

(j) The judgment reported in (2005) 1 JLJR 98 is an authority on the point that even forcible dispossession attracts Section 71A of Chotanagpur Tenancy Act, 1908. The point raised by the appellant of the said case, that the application for restoration was belated and barred by limitation, was rejected by this Honble Court on the ground that no such ground was properly put forward by the appellant of the said case before the authorities below and in order to raise such a plea it was for the appellant to establish as to when the recorded raiyat was dispossessed.

(k) In the instant case, it is important to note that the private respondent has not given the date of dispossession and after enquiry it was found that the petitioner was in possession of the property for the period of 18 to 19 years and this was apparently by virtue of the registered lease dated 21.08.1969 executed by M/s. Tisco Limited. The specific case of the petitioner is that the private respondents were disposed as back as in the year 1948 by virtue of registered deed of surrender executed by the recorded tenant in favour of M/s. Tisco Limited. The land Reforms Deputy Collector has recorded that the private respondents were dispossessed since 1948 and apparently the private respondents were dispossessed by M/s. Tisco Limited and not by the petitioner and petitioner is merely a sub-lessee on the property. The specific case of the petitioner throughout was that the recorded tenant was dispossessed as back as in the year 1948 by way of registered deed of surrender executed in favour of M/s. Tisco Limited. Therefore, there is no doubt that the private respondent herein were dispossessed from the property as back as in the year 1948 and this is the specific case of the petitioner. This aspect of the matter has been properly considered by the learned land Reforms Deputy Collector, but the learned Commissioner while setting aside the order of the land Reforms Deputy Collector has not considered any of the findings or reasons given by Land Reforms Deputy Collector and had simply set-aside the order of the original authority as well as the appellate authority.

(l) In the instant case, the private respondents were dispossessed as back as in the year 1948 and the application for restoration was filed only in the year 1986-87 and from the perusal of the application for restoration which has been filed and is available from the records which has been produced by the respondent-State during the course of hearing, there is no whisper as to what the private respondents or their predecessor in interest were doing for 39 long years and from the perusal of the said application even the respondent-State could not point out any date of dispossession mentioned in the application for restoration of land. So far as the issuance of rent receipt in favour of private respondent is concerned the same cannot be considered to be the document showing possession.

(m) Considering the facts and circumstances of this case and considering the fact that the private respondents herein were dispossessed as back as in the year 1948, this finding having been recorded by Land Reforms Deputy Collector has not been considered by the Commissioner while passing the impugned order and accordingly the impugned order passed by the Commissioner is perverse and is fit to be set-aside. The point of limitation/delay was fundamental point which was to be properly considered by the Commissioner and the records of the case shows that the petition which was filed by the private respondent herein was apparently beyond the reasonable period, without any explanation for such delay and was accordingly time barred in view of the ratio of the judgment by Honble Supreme Court reported in (2004) 8 SCC 340.

14. In view of the aforesaid findings the writ petition is allowed and impugned order passed by the Commissioner, South Chhotanagpur Division in Singhbhum (East) Rev. Appeal No. 461 of 1995 is hereby set-aside.