HIGH COURT OF CHHATTISGARH AT Bll-ASPUR W.P.No. 485 of2002 Bodhlram ";» • ';i Vs. The State <tfChhatBsgarh & Others Postfor pronouncementofjudgt'nentarKlorderson 2.$' /08Q009. Sd/- N.K. Agarwal Judge i<l !M 1 ('?: r1,;'- A I'S-tl t+1 -»] I! m fc5 HIGHCOURTOF CHHATriSGARHAT BIIASPUR W.P.No.485of2002 PeUtioner : Bodhiram.S/olateHemlalAghariya, aged about 85 years, oasupatlon: Agrteulture, R/o Vitlage Siltdhupli, Tah^l arwl Dlstt. Mahasamund (Chhattlsgarh). - Versus Respondents : 1. The Strte of Chhattis^rrh through the Secretary, Department of Revenue, DK Bhawan, ©ovt.of Chhattisgarh, Raipur, CNiattlsgarh. 2. The CommisskMier, Ralpur ©Ivtston, Ralpur(Chhattisgarh). 3. The Collector, Mahasamund, Dlstt. Mahasamund {Chhatti^a-h). 4. The Sut) Divisfenal Offfeer, Mahasamund, Distt. Mahasamund (Chhattl^arh). 5. Ram Ratan, (died on Oct. 2001) S/o Asha Ram (diedon ). 5A. Ukiya Bai, whJow of ftom Ratan, aged about S5years. 5B. Padup,S/o late Ram Ratan, aged about ^ years. 5C. Bhola, S/o late Ram Ratan, aged about23 years, 5A to 5C R/o YrtlageSindhupli, Tahsit Mahasamund, Distt. Matiasamund (Chhatti^arh). Writ Petition under Artiele 227 ofthe CCTa^itution of India (Single Bench: Hon'blelVlr.N.K.^iarwad.J.l Present : ShriVishnuK08ta,|AdvoGatefa'p^Kipner. Shrt Satish Gupta, Govt. /ttlvoe^e fer tt»State. 411 •fflia !1 ORI^R (F'assedon^^ day 6fAugi^, 2009) The instarrt petition is directed sgainst the orcter dated 28.08.2001, (Mssed by the Commissioner, Ratpur, in ^ise No. 118/A-23/98-99, afflrming the order dated 11.05.19^, passed by the Collector, Mahasamund, in rase No. 84/A-^y^-97, •who set aside theorder dated 13.12.96 passedby theSub Divisional Officer (Revenue), Mahasamund (for short 'SBO'), in revenue case No.2/A-23/96-97. The brief facts of the case as per ptUtloner are that, the petitioner's father Hemlal Aghriya, under a r^istered sale- deed dated 21.03.1961 (Annexure P/1), (Hirctased the landin disputeand house situated at Village Sindhupll fromoneAsha Ram, after obtainlng due permlssion under sectlon 165 (6) of the MP Land RevenueCode, 1959 (forshort the Code'), and took over its possession. In theyear 1995, (Mie Ram Ratai (deceased respondent No. 5)i.e. son ofAshaRam, moved an application befor& the 4tt resporiderit alleging ftiat the house and land in dis|nite has been mortgaged by his faVwr to the fatherofthe petitibner. Thefatheroffhe prtltloner, byplaytrg fraud, got executed the satedeed In Ws favour and took ovw the possesston. Show cause notice was isswd to ttie peUtlwer. The petitioner, by flling his reply stated that te^al dfeputed agriculturallandadmeasuring4^4Acrewaspurohasedbytils father Hemtal pureuant to permi^ion ySnted by the Collector vide reglsteredsale deed clated21^.1961, after payhigMI considerat'ion, andtherefore,transactlonvi ffibonerflde. i': i ^; ^•"fsesa^t: ^•'IK "'%, 8. The SDO dismissed theappllcafioR of reqiondent No. 5 holding transaction astoonaflde. The respondent No. 5 went in appeal. The CollecAor, after a close scrutiny of evidence led befbre the SDO, and the material placed on record, allowed the appeal and held that the land has neither been purchaseS after obtalnlng due permlssion under section 1^ (6) of the Cocte nor notlfted ss envlsaged under sectlon 170-8(1), therefore, the fransactlon is not bonafide, and set aside the orcter of SDOanct revert«l back the land in favour of respondentNo. 5. The said order was assailed by ttie petttioner tn revlsion before the Commi^loner. The Commissloner, after h^ring the partles, dismissed the revislon preferred by the peUtiwer. Hence thispetition. ,- Shri Vlshnu Kosta, learned counsel appearing for the p^itloner would submit that the land and house h^ been purchased by his father after obtaining due pemnisskin under section 165 (6) of the Code whteh is also clear from Vhe r^istered sale deed dated 21.03.1961. He would furtter submlt that vlde thesaid deed the house wasalso purchased! alongwiththe agricultural land andunder section 170-B ofthe Code, there is no provision to revert back the house whteh was'purehased vtele registered saledeed, and therefcwe, the order deserves to be set askie. Per contra, teamed counsel a^earhig fOTtheStatesupportedj the orders passed by the courts below. •Iliil i.i*1 9. 10. 1 have heard the counsel appearlng fer the parties, perused the orderepsesedbythecourtsbelow. The relevantfacts and pleadln^ @f the respectlve parti^ have already been mentioned in detail In the foregelng paragraphs. Before consldering therival submisslons macte by the partles,ttwould beappriyriate toadvert tethe pFOvlsions of section 170-B of the Code. Sedion 17C (tf the Code was inserted by MP Amendment No. t5 of Section 170-B reads 'as under: (24.10.1^0). 11 "170-B. Reviskm of land of membas ot aboriginal fribe which vras transfetred by fl^ud- ff)Every pereon who on the dats of eommencemeitf of the Madh^i l^radesh Uind Revenue Code (Amendnwi^ Aet, 1980 (heninatlerreferredtoas the Amendment Act of 1980) is In possesaion of agricytUral landiwhichsteteCT^ ^ a membw <rf a tribe v^feh Ks®been.declared to be an aboRgir^ tribe uhder subsection ^ <»fSeBtjon 165 behween the perfod cwnmencingJ on ttie; |Snd GdcAer, 1959 and erKllng on the ^sSs <tf e ieomnencement of Amendment Act, 1980 shall. iwttNn pwo yeai^ of such commencement, noffly to the Sub Dnrisional OfficerinsuchtormandlnsuchlmMmerasmsybe pr^cribed, all the jnfomiation as t& hcw he has come in possessioh ofsuch tand. 0) IfariypereontailstortoUfyttieiHfonnaflon as required by sub-secCon (1) within 1t» pieriod specifled therelo it stiall be pr^umed Iftat such pereon has beert in Ro^ession of ttie agricuttuat landwithoutal^lawfiilaiitlTOiityandthewi'icultural land shall, on the ®(piraUo of!ttreperto(farfbEesakt revert te tKe peraan te whom itor^inally betonged i and ifthat pereon b&dead; to hislegaflieirs. *Subs: byMP 19ofi982 E23-10.1S81} In the matter of Dhirendra Nath Shamia ^ipra), in para 12 of the ordgr it has been held thus: "72. Section 170-B vras insertoEl latw for tie same purppse with a viewto coyer the remalmng transfer of^ricylturatlandfaelongingtoAribalsuRdwwftich Vhey hadl^l»iesq>|oil^ ^|finu1n>mftieir[unec|ual bareialning ca|Mcity at' 6; time of Ihe lEansaction. By enacfjng Seefen 1TO-B, a duty Ws»KKt an every (»re6n'in posse»i6n <rf agdeuKural ismd^ whfeh betongectto a fribaliat ariy time betweert 2 October, 1959 and the dale of commenewient of 's Si 12. the Amendment Act of 1980 to notify the Sub Divisional Offteer wtthin the period specifled in the prescribed manner all fhe information as tohpw he had come in possession of such land. Obviously, the provision enacted in SecUon 170-A for iniUaBon of the proceedings was not found suffeient aml, therefore, such a provision became neces^ry to ensure that every such transactton rf fransfer of land belonglng to a trtbal at any Ume after 2 October, 1959 when the MP Land Revenue Code, 1959 cameinto force was brought to the noUee of the SubDroisIonal OfncertQenabtegxaminrion of its validity on the basis of infofinafion sj.ipplied by the peyson In possession. Sub secUon (3) provkles ttiat on'the receiirt of such informatien, Uie Sub Divlsional Offieer shall make such mquiry as may be deemed necessary about all such transactionS of transfer arad if he finds that fte teibal tranaferor has been defrauded, the transaction shall be dedared nulland vokl and an order would be mad®revestlng the agrieuttural land in Uietribal transferor or his legal heirs, as the case may be. The order contomplated by subsection ^) is to be pEBsed only as a consequence of a finding reached after di» enquiry that in the hansacUon of teansfer, the tribal transferor hsKl been defrauded ofhis tegitimate right Unless such a eonclusion to reached no questton arises ofdeclalin&ttielwrisaetiOnnutlandvoidand passing an order reyesUng the ^ricultu'al land in thetrtbaltransferororhislegalhejB." In paragraph-13 It has been held that sifc serton 2 ofSecBon 170-B merely lays down rute of ewlence where a person in possassion fauls to nefify the informaUon within the specifi«l (»riod, a presumpUon is available that the isossession of flie agricultural land is vwthout any lawftil authority and the landstands reverted to ttie transferor or Ns tegal heirs, as fte case may be. The rule af evidence contained in sub sectton (2) provides for aich a presumption which dispensea witti any further enquiry and the flnal order as contemplated in sub sectton p) is requiretfto be made on Ihe basis of presumption arising under sul» seefon {2). However, tt has been further heht that in all the cases including the cases in whiebths prostKn|rti@n undersub seeUon (2) is wailabto.the flnat order as conteirtplated ty sub secUon 0) has to be rraade . and only sSter such order is passed, results in declaratton that the transfer Is null and voidand Ihe agricultural land re-vests in transferor or his legal heire." 1 am in respectful agreanent with the prtndplw of hw laid down in the above ctted judgments. '!:il y 6 13. By applying the principles of law laid down In the matters in the facts ofthe presentcase.it is observed fliat the Collector has rightly recorded the finding that neither the said land was purchased by the ptfrttoner after ototaining due permisslon undersection 165 (6)0fthe Code noranyretum has been filed as envisaged under secttwi 170-B(1)ofthe Code, and in thls sBuatlon, the transactton eanrwt be satet to be bonafide transaction In termsotfsectlon 170-B oftliie Code. The Additional Commissioner also rightly afRrmed the aforesaidflnding. 14. Inview of the afore^ld concurrent flndlngs of boBh e courte below, 1 am of the constdered opinion that the Cdlector as well as the Commissioner has not comimtted any ill^ality or Infirmity wlth regard to (jjsputed land leading to manifest injustice to the pefltiorier so as to invoke extraordinary jurisdiction of this court under Article 227 of the Constitition of India. 15. As far as house part of the dispufed property is concerned, section 170-B(3)(b)of the Code provldes that where any building or structure has been erected on the agriciltural land prior to such finding glven by the SDO,fh»ithe SDO shall ( the price of such land In accordance vrfth the princlples lakl down for fixatlon of price of land In the Land Acquisition ^®t, 1894, and prder the person referred te Insub sectlon (1) te pay to the trarsferor the dffference, Ifany, between <he price actually paid to the transferor whidi Is to be flxed with i.!i» Sahu reference to the price on the elate of reglsrtration of the ease beforetheSDO. 16. This aspect of matter has nelther be»idealt wtth by ttie SDO nor by the Revenue authorltles while passirg the orders. It is therefore necessary to remand the case with r^art to portion of land upon which the house was constructed; at the tlrr»of reglstration ofsale deed. 17. In the result, the petitlon is party allowed. The petitlon fe dismissed wlth regard to ^rteultural land, teavlng the portfcm of land upon whieh the housewas constructed at the Ume of purchasing of land and the matta' is remanded back to the SDO, Mahasamund, with a directlon to pass ttie order in accordance with provtstons contained in section 178-B(3)(b) of the Code, afieraffordlng ^lue opportunlty of hearing to tioth the parties inthis regard. No order a^o cos&s. Sd/- N.K. Agarwal Judge