‘ 0’? \g? IN THE HIGH COURT OF JUDICATUiiE AT BILASPUR W.P. No. ? ‘1 2%{2002 DHAMTARI. TRIBHUVAN LAL SON OF AMAN SINGH SAHU, PETITIONER GRAM — BAGDEHI, TAHSIL-DHAMTARI, DISTT— VERSUS // RESPONDENTS THROUGH THE COLLECTOR, DHAMTARI. SMT. GAURI BAI WIDOW OF GANESH SINGH GOND ’ r} - K. 1/” STATE OF CHHATTISGARH .e‘ . " ALL RESIDENT OF GRAM ~ BAGDEHI, TAHSIEE‘“: DHAMTARI, DISTRICT — DHAMTARI SMT. GEETABAI DAUGHTER OF SHRI GANESH SINGH GOND RESIDENT OF GRAM — BODRA, POST — DAHI, TAHSIL & DISTT - DHAMTARI 3)?_‘,\ *Ew": &(\/ “bd'f E ’W;‘, F y géIONSTITUTION OF INDIA FOR THE ISSURANCE OF WRITS IN THE ‘NATURE OF MANDAMUS, CERTIORARI, PROHIBITION AND/OR ORDERgS), AND/OR DIRECTION(S[ IN THE NATURE OF WRITS §V, IL“ ’9 favk WRIT PETITION UNDER ARTICLES {226E27 OF THE m“: f, HEMSINGH SON OF LATE GANESH SINGH GOND . KU. MADHUBAI DAUGHTER OF GANESH SINGH GOND v. R- g6 wecv‘ ‘ B“) HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. No. 1420/2002 PETITIONER Tribhuvan Lal Sahu Versus RESPONDENTS State of Chhattisgarh and others \ SB:- HON’BLE SHRI N.K. AGARWAL, J PRESENT - Shr1 B P Sharma Wlth Shrl Ksh1t1J Sharma Advocates for the petltloner Ku Sangeeta Mlshra Panel Lawyer for the State ;; None appears for other respondents ORAL ORDER (7—3-201 1) 1. Since no one is present on behalf of the respondents No. 2 to 5‘ inspite of service, the matter is being heard in their ab sence. The instant petition is directed against the order dated 30— 4—2002 passed by the Commissioner in Case No. 49/A- 23/89—90 whereby and Whereunder petitioner’s revision was dismissed. Facts of the case in brief as per petitioner are: A notice under Section 170—B of the Land Revenue Code 1959 (briefly ‘the Act’) was issued by the Sub D1v131onal Officer Dhamtari The petitioner herein appeared before him, filed his objection and also filed copy of sale deed showmg that the land was purchased after due permission of Collector under Section 165(6) of the Code. The Sub Divisional Officer without enquiring into the matter passed the order reverting the land in favour of the predecessor of respondents No. 2 to 5. The above order was confirmed by the appellate court as well as by the revisional court vide impugned order. 4. Shri B.P. Sharma, learned counsel for the petitioner would submit, the Sub Divisional Officer has passed the order without adopting proper procedure as envisaged unde sub section (3) of Section l70-B of the Code without giving opportunity of hearing i.e. for producing the documents and evidence. He would further submit that the land in question was purchased by the petitioner with due permission of Collector dated 25-8—1972. This fact has not been'given any weightage by the Sub Divisional Officer, Addl. Collector as well as by the Commissioner while passing the impugned order and, therefore, the order being illegal deserves to be set aside. 5. Ku. Sangeeta Mishra, learned Panel Lawyer appearing for the State submits that State is a formal party. 6. I have heard learned counsel appearing for the petitioner and perused the orders passed by the courts below. Before considering the rival submissions made by the parties, it would be appropriate to advert to the provisions of section 170-B of the Code. Section l70-B of the Code was inserted by MP Amendment No. 15 of 1980 (24.10.1980). Section l70—B reads as under : “1'70-B. Revision of‘land of members of aboriginal tribe which was transferred by fraud— (1)Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an r ’ aboriginal tribe under subsection (6) of Section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within [two years] of such commencement, notify to the Sub Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land. (2) If any person fails to notify the‘information as required by sub—section (1) within the period. specified therein it shall be presumed that such person has been in possession of the agricultural Ll) r land Without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid revert to the person to Whom it originally belonged and if that person be dead, to his legal heirs. 3[2—A) If a Gram Sabha in the Scheduled area referred to in Clause (1) of Article 244 of the Constitution finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a Bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that persons to whom it originally belonged and if that person is dead to his legal heirs: Provided that if the Gram Sabha fails to restore the possession of such land, it shall refer the matter to the Sub-Divisional Officer, who shall restore the possession of such land within three months from the date of receipt of the reference. (3) On receipt of the information under Sub section (1), the Sub—Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order revesting the agricultural land in the transferer and, if he is dead, in his legal heirs. 1[(3) On receipt of the information under Sub- section (1) the Sub-Divisional Officer shall make such enquiry as may necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and- (a) J) Where no building or structure has been erected on the agricultural land prior to such finds pass an order revesting the agricultural land in the transferer and if he be dead, in his legal heirs, Where any building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 (No. 1 of 1894) and order the person referred to in Sub—section (1) to pay to the transferer the difference, if any, between the price so fixed and the price actually paid to‘ the transferer: Provided that where the building or structure has been erected after the 1st day of January, 1984 the provisions of Clause (b) above shall not apply: Provided further that fixation of price under Clause (b) shall be with reference to the price on the date of registration of the case before the Sub-Divisonal Officer.]" Law is well settled. Sub section (2) of Section l70—B of the Code merely uses the word “shall be presumed” and does not indicate that it shall amount to conclusive proof and therefore, it does not bar any evidence being adduced for the purpose of disproving it. The presumption under sub section (2) must, therefore, be regarded as a rebuttable ' presumption, and in a case governed by sub section (2) of Section 170—B of the Code also enquiry after show cause notice is necessary where in reply to the show cause notice the vendee appears before the court and adduces evidence in support of his contention that his possession is by lawful authority and if the SDO is satisfied on the material before him as was produced by the vendee or received from other sources that the vendee’s possession is based on lawful authority, the presumption is rebutted. By applying the above principles of law to the facts of the present case, it is crystal clear that the orders have been passed by the Tribunals without holding any enquiry in terms of sub section (3) of Section 170-B of the Code.» While inquiring into the matter, the SDO must consider the effect and import of the permission under Section 165 (6) of the Code granted by theAddl. Collector. It is no doubt true the authority is entitled to look into effect and import of such permission granted by the Addl. Collector to arrive at a' finding whether or not transaction is bonafide, but the same is required to be considered in its proper perspective. Therefore, the order passed by the court below as well as by the SDO are not in accordance with law and in the considered opinion ofi’rhis court this is a nt case to be remanded to the SDO concerned, to conduct an enquiry de novo and pass appropriate order on merit. 10. In the result, the writ petition is allowed and the impugned orders passed by the S.D.O., Additional Collector and Commissioner are set aside and the proceedings are remanded to the SDO, Dhamtari, with a direction to conduct an‘ enquiry as envisaged under sub section (3) of section 170-B of the Code and pass appropriate order after issuing notice ‘to the petitioner and after giving a fair opportunity to the petitioner to represent his case. I also permit the petitioner as well as the respondents to file additional statements and documents in support of their respective case. 1 1. No order asto costs. i ¥ Sd/- 1 N.K. Agrawal Judge Sahu