HIGH COURT OF CHHATTISGARH AT BILASPUR WP, N0. 1486 of1998 Lakhmu Vs. $tai’e of Madhya Praiiesh £1, @thea‘s; Post for pronouncement ofjudgmsn? aad ordsrs 021 I) f/08/2009. \ Sd/- N.K. Agarwal Judah “WM ”H :Z‘L / HIGH COURT OF CHHATTESGARH A1" BILASPUR WP N0. 1486 0f 1998 Jagdalpug; DiStrict Ba$tz1r= . Th6 Sub DiViSiQnai Offwgr (Ram), Jagdaipur Disirigt Basia: Chaturbhuj S/o Jalandhaa; R/o Villagé: Titirgaam Tah: Jagdaiuur. 6. Ratiram S/o Kana Muriya, R/o Kavi Asma. Tgh. Jagdalpm. Writ Petition wider Articla 226/227 of the Cmgtimtim of India iSingle Bench' Han bk Mu N k. Agai w 31$.. V§_ LII i’resemt : Shri PrafuEl Bhara‘t. Advocate for péti 01161: Shri SatiSh Gupta, Govt. Advocate for {he Siam. Dr. NK ShukEa, Sr. Advocae with Shri CK Sahu, Advocak for respondant N0. 5 & 6. QRDER (Passed on L9 day ofAugust, 2009) 1. The instam gotition N dimomd qgamq foo ord 22.04%. passed by the Addi‘rio. ai CoEootor, Jagdaipur 3rd responoem harem), in Row. Apooai No. 15/A—..3/93~'3}4 'mri moor Wior} l m A ( Pemiumel' La-hmu S/o Padlam Bhatg‘a, aged. about 7O yegrs, R/o Villaga Titirgaona T5111, Jagdalpur, D1<f* Bastaf. Versug C Rssggondmts : 1. Stats of Madhya Prade$11 though I Thg Saemtmy; Espartmtmf .Qf Revenug Govt, of MP5 Mantralaya, Bhopal, 2, Tim C0mmi$si0n6r Basiar Distrigt Bagtar, Jagdalgur, 3, The Additicnal Collgglor, qs 19.01.98” passed bV th=2 Comm‘QSSimimx BaStar {2nd respondant harain}, in Ravisior; Casa N0, 79,9’A—23/96—97, whamw and wharsnder fhe 3rd mspondem sat agida $6 QW‘M Divisiona% Ofiicey {Revamlex Jagdalpur (far short ‘SDG’) (4th regponda‘nt harain) daieci 24.01 94$ pn€ Revwue Case No. 478/A—23/91=92 and 2nd reSponde 1t affirmed the Gi‘der passed by 3rd respondent hy dismissing the 1‘ VisiGn preferred by tha patiiioner. The brim" fa.c.s of the {3am according to the patitimwr am that the petifionar is q mamber of abm‘igiml tribe ‘Bha‘rra’_ Petitiongr’s faiher was owxwr 0f '{he dispmad WV? cemprising Khasara No,‘ 133/3 Area, 0:14 Acre, 193/6 Ama 0.58 Acre5 198/4 Area 0.92 Agra 189/5 Ajea, 0,78 Ame; 200/2 Area 0.26 Acre and 204/2 Aj‘ea LQS Acre, total Area 3:76 Ame: Petitioner mOITgaged the (iiS'puted land i1} ‘ii e year E970 t0 5m ‘ respogdent/Chat11r1a1111jl P To the said mmfgagei the m” t respendent No. 5 toek ever gaessessien of the disputed. land and :3ta1ted cultivatimq the same. The respoxydem N04 5 with the aid of same persons, prepared. a Largee <31: are sale—deed ewe g6? the same registered in the name 0f one Ratiram i‘e. 6 th respondent, a, member of aboriginal tribe and his servant. 111 the year 1972, reepondent N0: 65 iii eoilusieri with respondent No, 5i applied to the Collector; Bastart ior eermiseion to sale the disputed land under section 165 (6) of MP Laitd Revenue Code, 1959 (for snort ‘tlie Code} permission V'as obtaiied aw 1" Qa udu la x 1w.” G; w W, theraafter Vvie sale-dggd dafPri 300319725 thr: .iiSputad land was tramfermd t0 1‘6Spondent N0, 5 , On the raport of Patwari Halka No“ 61, ’2 case was registered under section 170—B ofthe Ccda the 4m ,m hy the respondent. The 4 respOHdent, 3&6r issuiag $ho cause flame, to the 5m respondent, and after howling a detailed 'enquiiy in which the 4m respondent mspectad. the Spot, 1'6901‘dgd siatcmants of the petitioner, Villagerg and the agriculturiets of adjoinigg disputed land, passed the omier in favour of the by petitiogqr by revertittg back the disputed land to the petitienet, Etrsuant to the said ordera the in. 4. petitioner eame pessession of the disputed 13:16., Aggrieved by the Order dated 24.01 .94 passed by the 4m respondent; the 5m respendent preferred an aepeal befere the 3 rd i‘esyendent, who set asi e the order passed by the 4 th respondent. 5. The petitioner? feeling aggrieved by the appellate terrier“ preferred a revision hefere the 2nd respendent Wiio toe aftirmed 6, the order passed by the 3m respondent. Hence this petitioe. Shri Prafull Bharet, learned counsel appearirrg for the petitioiier would submit t rat the order passed by the 3rd ane 1 4m responden are perverse and bad for the following reasoris: i.) That, the erder passed by the 31d responderit which was affirmed by the 2nd respondent is bad in View of the fact that the appeal preferred by the 3 4h respondeot was time barred and the order has been , / passed by the 3r d nd m Xhow condsmn tha said dalay. That the 4th reSpomimt passvd iw Oiuel after holding due enquiw by giving fut meatumtv of sspondem am} +1. we same ought not to have ba6n laglrh wtgt *ewd 13V the annell t6 and ravisionai hom‘v Thai; tha appellata N wall as reviSional am} $ did not appreciata the faci that ’[h ruspondur 1d net nGtify 1:0 ths 4m msgpo went mt in in. prascribcd £11 J f ‘ V1 rms 0f glib ssction 1 of section 170-B of th C i all $16 iziformatism M $0 how he; comes in possessiazi of the suit iand i101” he adduced any avid@zqce 1'0 mhu‘i rim pi‘asump‘tion undei‘ sub sectima (2) 0f saciion 170—B 0f 1:116; Cede; ”mat the iaspondezi‘r NO was n1 130856931011 of Loo acriculturai kind Without axiv h Ifu emhorify That, 4&1 respondsm, based on cogom’ ovidence, held that tho Land His hsid Bonami by 5m i‘espondem‘ This factual aspeot oftha caSo was 210T even deah with by the 2nd and 31d reSpOHdent. That Q r 11o law sotfiod by Ibo Supi‘ome CourL the transactiozi intor-se betwoon aborigmai tribe az‘e not excluded. from the; puwiow of section 170—B of the Code and thezet e tihdiug toootded by the 2nd respondent that section 170nB of the Code is not applicable? is perverSe, 7. For his contmmom Qhn Bhamt whed umn the 31 f Division Bench‘s iii caSas of Dhirmldra Nath Shanna. v, Stats of MP and Anatherl, Atmai‘am 8c Anoihsr v “fat? oi M132, P6 m heanng LO t f r r 1 «D85 q MPLJ 786 1 1995 MPLJ 633 +e1n} (h Ci$ v. Galiya & Others? and Bhaiji V. Divisianai OiEcer, Thandla & Others". Per com D N SEA «:1 lmmad Sr Ccume! wreamg for Iespondent \h 5 & 6 WOuL} subnm fha‘t the 4 Iespondent has passed the Gz‘dar merely 11 tha ba$is of fact tha? 5 m pGnAnnt dld not no‘nfV v 1th? thv penod pusvnwd th€re LQ’ wxth tn 4m reQpondent a1- n-01‘mation as to haw 11c: Mme m posssSSiQn of such land. which was comrary t0 pmvisivms: {3f Saction 170~ B of the Cock: aald <0 rum mum z i0 (hf: judgmcxt: 0f Division Beach‘s ill faxes of Dhirendz‘a N: 1 Shanna (qumq) and Aimmcm & Arlother (oupm) and to fme he 3 d 1‘esponziem, right1y set agide the same 6’6 2 nd :‘espondem i‘égwly dismissed tho revision preferi‘ed by iiw ps‘xfiiia may, fh 9, I have hoard $116 counsai appoaring for tho partios p orders pagsed by the courts bolow. TL 1 11: factq and 0162:1111 <; of tho respooi’ivo paitioix‘ have ah‘eady been mentioned in detail in the foregoing paragi‘aplig. iogs made by the partieg, it Before considering the rival sub‘ woulci be appropriate to advert to the provieions: of seetion 170- B of the Code. Section 170—B of the Code was ineerted by MP Amendment No. 15 of 1980 (2410:1980). Section 170—3 reads as under : “170-B. Revision of land of membere of aboiiginai tribe which was transfeired by fl'aud- (1)Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) 3 2003 RN 434 4 2003 (1) soc 692 ef S m Act, 1980 (hereinafm‘ referred to as ihe Amandment Act of 3980) is in possessian of agi‘icuh‘urai lanci which belonged to a member m" a tribe which has been deciared i0 be an aborigimi tfibe under subsection (6) (3f Seetion 165 beiween the periad commencing 013 the 2m October, 1959 and ending on the date of th$ commancemem of Amendment Act, 1980 shall, Withia {twe years} of such commencement. no‘iify to the Sub Divisional. Officar in such form anxfx in such ixiamler as may be premribedv. a]! the mfotmation as to how he has comé in posssssion of such iand. (2) If any ' person fails to noiify the: information as required by subsection (i) wifhin the period $peciiied iherein it shaii be presumed that such persen has been in possession of the agriculturai land Without any lav/fill authority zmd the agricultural land shall, 011 the expii‘aiion 0f ihe eei‘iod aforesaid revert to the person to whom it originaiiy beiengeci and ifthat pei‘Son be dead, i0 his iegai heirs. *Subs: {3V MP 19 of 1982 {23—h’)~1981] 11, Tiie Supteme Con e of B13211 (QumM ohsetved 1n nara 8 as under : “8. It is well known, ihat some of the aboriginal vibes are nomadie and some imialge iii elimes ii‘udiiiomiiy and historicallv lhe empose oi se‘c‘lmc lzmd With the tiibals mostly v.1 is deny (u WW macesslom‘ ates and et times even Without involving an obligation to pay the land revenue, is so done with a View to see that the aborigimls settle at one place abaiidouing nemadism and picking up tiliiug the soii its-their vocation by settling at ene elace and eaming liveliheod by labour anci toil It is also weii koown that oreamv laveis have deveiogied and even as amongst socially uiiprivilegeo some have acquired aiiiuence. An affluent shrewd tribal may iiiduige in expioitina his feilow beings. Possibility caimot bewmled out whei‘e a non—tribai may manage to have iand transferred apparently but not in reality in the game of a tribal and taking advantage of his status, afiloeoce or any other means conferring him with eapacitv to exploit mav ll u to his own advent ge dopiivmcr the till the aboriginal meal from the benerits oftne land eettled 0y the State witb him All snob cases are taken care of by Section l’h) B The pur ose of endttmg Section lm-B of the Code 1s verv Wide The omec‘r sought to be achieved as its diafimc indieotes is to g 11 aim make avaimble ail statistivs mm the State oiiicmls so as to find out how much laiici b aonemg to aivoriciiidl tribals is iii possessmn oi aiivone to viliom it does not belono as on ti e our oft datt {he infomation having been collecteo. We enquirv under subsection {3} shall be directed toivariis iiiidirig out the nature of transaction resuitiiig iii transfer of laced whether , such transaction of transfer has msulted in The aboriginai tribal having mm dafmudad of his 1egitimate fight in the land. Sub—sections (1), (Z) arid {3), as smmied in 1980, have to be read as pm”: of one Whole schema. If the sub111issi0n of Shri Gambiiir is correci than ihe objtsci of enquiry under sub-section (3‘) would have been to find out if such h‘ansaCtion of transfar has resumed in an aboriginai tribai having been defrauded of his legitimate right by a persoii not belonging to an aboriginal tribe. But that is not so. Nowhere in the entire scheme of subsections (1), 2) aiid (3) of Section 170-B, as enacted in 1980, there is the least indication 01° confining the applieabiiity ofthe provision to such trangaotioris of transfer as were entered into by a member of an aboriginal tribe in favour of a member not belongirw to an aboriginal tribe. No exception has been enacted by the legisiature so as to excliide from the purview of Section 170—13 transactions oftransfer between two persons both of Whom are members of aboriginal tribes. Had it been so, the legislature would have specificaliy said so. The language of the section as drafted in 1980 is clear and unambiguous anti does not aclnnt of any doubt so far as this aspect is concerned.” In the matter of Dhirendra Nath S a (supra'l ii- oara 12 o the order it has been held thus : “72. Section 170—B was inserted iater for the same purpose with a View to cover tbe remaining transfer of agricultural land belonging to tribais under which they had been exploited resulting from their unequal bargaining capacity at the tiine of the transaction. By enacting Section 170-B, a duty was cast on every person in possession of agriouitural land, which belonged to a tribal at any time between 2nd October, 1959 and the dale of commencement of the Amendment Act of 1980 to notify the Sub Divisional Ohicer within the pet'iod specified in the prescribed manner all the information as to how he had come in possession of such land. Obviously, the provision enacted in Section 170—A for initiation of the proceedings was not found sufficient and, therefore, such a provision became necessary to ensure that every such transaction of transfer of land belonging to a tribal at any time atter 2‘“ October, 1959 when the MP Land Revenue Code, 1959 came into force was brought to the notice of the Sub Divisional Odicer to enable examination of its validity. on the basis of information supplied by the person in possession. Sub section (3} provides that on the receipt of such information, the Sn‘o Divisional Ohicer shall make such inquiry as may be deemed necessary about all such transactions of transfer and if he finds that the tribal transferor has been 19 a l. n f ; m (isfi'audeci, the transaction shall} be cieclarrsd m131 mid. void £1116; an owkr Wtmlé be mada m‘vegting the ag‘icui‘mrai iami 111 thea him} iransf‘ez‘or Qf his legal heim as the easa may be. T113 order comemplated by Subseciioa {3} is t0 be paSSaci only as a consgqumce of a finding rsacbed zzfher {his enquiry that m tie. 'tmnsactioa of tramway ‘iha aim} irans§3r0r had, bean deffaudeé; uf his lagmma‘te right Uniess such a conclusion i3 reached 11c (pleS‘Iion ari$es of dada‘dng the trailsaciim} 111111 and mid and passing aux order revasting the agricuitural land in the tribal transféror or his legai heirs.” in paragraphJF; i‘i ha$ been held that sub séctiOTa 2 of ‘ Section 170-3 m6re1y iays dOVJn mie of evidsiice' Wham a person in possession fails to notify the iilformation Within the Spocified period, a presumption is available that ihe posgession of the agricultural land is without axly iawful authority and the land stands reverted to the transferor or his iegal heirs, as the caee may be. The mie of evidence contairied in. sub section (2) provicics for such a presumption which dispenses with any further etiquily and ihe final order as contemplated in sub section (3) is required to be made on the hasis of presumption arising under sub Section (2). However; it has been faithei‘ held that in aii the cases inciuding the cases in which the presumption under sub section (2) is available: the final order as contemplated by sub section (3) has to be made and only after such order iS passed, results in deolaration that the transfer is null and void and the agricnltural land i‘e-Vests in transferor or his legal heirs.” In the matter of Atmaram (supra) while dealing Witt se ;tion 4 ofthe Evidence Act of 1982 it has heen held. b seotion (2) u of Section" 170~B of the Code timely uses the word “shall he presumed” and does not indicate. that it shall amount to conelusive proof and therefore, it does not bar any evidence being adduced for the purpose of disproving it. The presumption under sub sermon (4) must, therefore, lP regarded as a rebuttable presumption. Referring to Dhirendra Nath Sharma’s case it has been held that in a case governed, by sub section (2) of Section 170-3 of the Code also enquiry after \ /V n CM, \\\ shOW cause notice is necessary Where in mply to the Show causg 110tic6 the vendee appears bsfore the; court mad adducgS evidence in support of his contention that his pOSSession is by lawful authmity and if the SDO is saiisfled 011 the materiai before him as was produced by the vendee or reeeived from other sources that the vendee’s possession iS based, on lawfill authority, the presumption is rebutted. By applyihg the principles of law laid down in the aforesaid matters in the facts of the present ease, it is observed that the order passed by the 2nd respondent runs counter to the law laid down by the Supreme Court in the above referred ease and is patently illegal. It seems that without taking into consideration whether or not the appeal is time barreda the appeal has been decided by the 3m respondent which is also without jurisdiction. The 4m respondent based on spot inspection report statements of the petitioner, villagers and the agrieulhirists of adjoining disputed land recorded by hirni held that the disputed land was in possession of 5m respondent since 1970 i,e. a date prior to execution of sale—deed by 6th respondent in his favour. lt seems that while recording said findings no opportunity was afforded to the 5th respondent to cross-examine those witnesses and to adduce the evidence in rebuttali It is trite law that no person can be condemned unheard} and therefore, in the considered opinion of this court; it is a fit case to be remanded to the SDG, lagdalpuri to enquire into the 10 ‘¢ matter de nova affer afferding due oppommily of haaring to thg panics 0n the fact that in the yaar 1970 whether or not the 5m respondent was in possession of the property, and whether or not the disputed land was held by him Benami in the name of 6m respondent, and pass appropriate order en merit. 16, In the results and for the foregoing reasensa the writ petitioh is. V allowed and the impugned orders passed by the 23d, ‘3“1 and 4m respondente are set aside and the proceedinge are remauded t0 the SDO, Jagdalpura with a direetion to enquire into the matter and pass appropiiate order after issuing notice and giving a fair opportunity to the parties to represent their ease, No order asto costs. s 7 \ Sd/~ MK. Agarwar Jutlr'u o , Sahu