,{fiS ^ %s'am». '"'<-£!?», "NS^8"' i^fSeg^gf^sS^Six^-K'. HISH COURT OF CHHATTTS&ARH AT BILASPUR Writ Petition No. 27 of 2002 AP^ Petitioners Narayan and others Versus Respondents The State of Chhattisgarh and others Post for order on /3'^>April. 2007 Sd/- Satish K. Agnihotri Judge -1- HI6H COURT OF CHHATTIS&ARH AT BILASPUR Writ Petition No. 27 of 200Z Petitioners . 1. Narayan S/o Barat Rom Aghariya, aged about 65 years. 2. Raghunath S/o Late Barat Ram A9hcriya, aged 63 years. 3. Baijnath S/o Late Barat Ram Aghariya, cged 61 yedrs. 4. Devnath S/o Late Barat Ram Aghariyo, aged 59 years. 5. Shivnath S/o Late Borat Rom Aghariya, 09®d57 years. 6. Sarhan S/o Late Borat Rom Aghariya, a9ed 55 years. ' 7. Ramcharan S/o Late Barat Ram Aghat-iya, aged 53 years, All resident of Village Chhaidanpur, Tdisil Saraipali, DistrictMahosamund. Versus Respmidents / 1. The State of Chhattisgcrh, Through / the Secretary, Departnient of Revenue, b.K.S. Building, Raipur. 2. The Commissioner, Raipur Division, Raipur. 3. Cotlector, Raipur, District Raipur. 4. Sub Divisional Officer, Mahasamund 5. Santosh Sounra S/o Late Dalganjan, Resident of Villcge Remda, Thana Basna, &ist(*ict Mahasamund (C©) Sir^le Bench: Hon'ble Mr. Justice Satish K. Agnihotri. Present: Mr. Saniir Sin9h, Advocate for the petitioners. Ms. beepali Pandey, Pane! Lowyer for State/respondent No. 1 to 4. --^^.•: t^^..." ^-—^•^. rr-";^";'?'^"^:^^ •———— -2- ^5 -i^ OR&ER rs" (Passed on/^Day of April, 2007) 1. By 1+iis petition under Article 226/227 of the Constitution of India, the petitioners impugn the order dated 3.10.2CX)! (Annexure P-1), 8.12.a3(X) (Annexure P-2), 30.3.1995 (.Amexwe P-3), 24.7.1991(<4nnexure P-4) and 3.7.1991(i4nnexure P-5) passed by the respondents No. 2 to 4, whereunder the appeal filed against the order- dated 24.7.1991 passed by the Sub Divisional Officer, Mohasamimd was dismissed as being barred by time and review petition filed thereafter was also dismissed by the Additional Commissioner, Raipur Division, Raipur. 2. The indisputable facts in nutshell are that the father of the respondenf No. 5 Late 5hri Dalganjan soU the qgriculture land bearing Khasra . 415 admeasuring 2.33 acres in P.atwwi Halka No. 40/39 to Shri Bhorat Rcm Aghoriya father of the petitioners vide registered sale deed dated 22.4.1963 (Annexure P-7). 3. The respondent No. 4 i.e. Sub Oivisional Officer, Mcihasamund issued a show cause notice under the provisjons of under Section 170-B of the Madhya Pradesh Land Revenue Code, 1959 (hereinarfter referred to as 'the Code, 1959 ) to the father of the petitioners to file his repiy on or before on 24.7.1991. Before issue of show cause notice, the father of the petitioners died and the petitioners did not file any reply as disputed land admeasuriry 2.33 acres was distributed amongst the petitioners. 4. The respwident No. 4 vide order dated 24.7.1991 (Annexure P-4) held that the detailed enquiry under Sub section (3) js not necessary as the landoimers hove not filed any reply to the extent asto how the land came ir»to their possession. TTie land was reverted back to the originol owner 5hri Dalgaryon. J U?l ? ® -3- 5. The petitioners preferred an appeal before the Additional Colleetor under provision of Seetion 44 of the Code, 1959. The Additional Collector vide order dated 30.3.1995 (Annexure P-3), held that the petition was borred by limitation. There wca no application for condonation of delay. TTius, the appeal was dismissed. In appeal, the Additional Commissioner, Raipur Division, Raipur confirmed the findin9S recorded by the lAdditional Collector in his order dated 30.3.1995 cnd dismissed the appeal vide order doted 6.12.2000. Against the said order dated 8.12.2000, the petitioners preferred a review petition before the Additional Commissioner. The Additiona! Commissioner dismissed the review petition also holding that there waa no error in •the order dated 8.12.2000 passed by the Additional Commissioner on the ground that the appeal against the order pcssed by the Sub Divisional Officer was filed arfter deloy of 61 doys, before the Additional Collectop which was barred by •y • ' limitation. Time taken irf'obtaining the certified copy wos 7 days, thus, after dedueting 7 doys, the petition was fited crfter 54 days. The period of limitation prescribed ynder Section 47 of the Code is 45 days from the date of the order. Thus, appeal was barred by time by 9 days. 6. I have heard learned counsel for the parties, perused tfie pleadings and documents appended thereto. 7. It is evident that the father of the pstitioners died before issue of the show cause notice under the pr'ovisions of under Section 170-B of the Code, 1959, There was no notice to the land owners as the land was distributed amot^ the legal heirs of the original purchaser. They are the petitioners in this petition. 8. It is beneficial to quote the provisions of undepSection 170-B of the Code,| 1959 wfhich is as under;- 7" ^*T •"• "f ^..sr • j...-...• - •^- -4- "[170-B. Reversion of land of members of aborginal tribe which was tronsferred by fraud.-(l) Every person who on the date of commencement of the Chhattisgarh Land Revenue Code (Am.endment) <4ct. 1980 (hereinaft-er referred to as -the Amendment Act of 1980) is in possession of agricultural lcmd which belonged to a member of a tr-ibe which has been declored to be an aboriginal tribe under- sub-seetion (6) of seetion 165 between the period commending 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-Oivisioncd Officer in such form <nd in such monner os may be prescribed, all the information os to how he has come in possession of such tand. ^ (2) if any person fails to rwtffy the information os required by sub- section (15 within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land diall, on the expiration of the per-iod aforesaid revert to the person to whom it originally beloiy^d and if that person be dead, to his legal heirs. [2-A) If a 6vem 5abha in the Scheduled area referred +o in ciause (1) of Article 244 of the Constitution finds that any person, other than a member of cn oboriginal tribe, is in possession of any land of a Bhumiswami belonging to an aboriginal tribe, without ony lawful author-ity, it shall restore fhe possession of such land to thot persons to whom it originally belonged and if that person is dead to his legal heirs; Provided that if the Grcm Sabha fails to restore the possession of such land, it shall refer the matter to fte Sub-Divisional Officer, who shall restore the possession of such laid within three months from the date ofreceipt of the reference.] (3) Gn receipt of the informotion under sub-section (1), the Sub- Oivisional Officer ^iall 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 transaefion null and void and T-: V-^-;. "i. .^-w-.. \ -~-si¥S;:1;', "" ! -5- (^ 9. pass an order rsvesting the agricultural land in the transferer snd, if he is dead, in his legal heirs,] [(3) On receipt of the information under siA-gection (1) the Sub- Divisional Officer shall make such enquiry as moy necessary d»out all such transactions of tpansfer and if he finds that the member of aboriginal tribe hcs been defrauded of his legitimate right he shall declare the transaction null and void and- (a) Where no building or structure has been erected on the agricultural land prior to such finds pass an order revesting the agricultural lond in the transferer and if he be dead, in his tegat heirs, (b) Where any building or structure has been erected on the (griculturat land prior to such finding, he sholl fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Aci, 1894 (No. 1 of 1894) and order the person referred to in sub-sectjon (1) to pay to the transferer the difference, if any, between the price so fixed an'd the price actually paid to the transferer; Provided that where the building or structure hcs been erected after the 1st dcy of January, 1984 the provisions of clause (b) above shdl rtot apply; Provided fur-ther that fixation of prics under clause (b) shatl be ~ with reference to the priceon the date of registration of the case before the Sub-Divisonal Officer.]" It is clear from unambiguous provisions under Section 170-6 of the Code. 1959 •that there is no contemplation of the notice but the person who is in possession of agricultural land which betonged to a member of a tribe which has been declared to be on Aoriginol tribe between the period cofflmencing from 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-bivisional Officer in such form and in such manner as may be prescribed, all the information as to how he has 'T \;' -6- ^ eome in possession of such land. If any person fails to riotify the irrformation as rsquired by sub-section (1) within the period specified therein it shall be presumed that such person has besn in possession of the agricuttural land without aiy lowful authority and the agricultural land shall, on the expiration of the period aforesaid revert 1u the person to whom it originally belonged ond if that persorr is dead, to his legal heirs. 10. In the facts of the present case, it was for the petitioner's os they were in possession of disputed lands to noYify to the Sub-Divisional Officer about the nature of the land <md how they are in possession of agricultural land of a Bhumiswami belonging to an aboriginal tribe, without any lawful authority. In the event, the subsequent land holders fail to notif)? the inforfflation to the Sub-Divisional Officer within the specified period. It sholl be presumed that such person has been in possession of the -/ agricultural land without/ony lowful arthority and ths ogricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally bslaiged and if that person be dead, to hislegal heirs. 11. In absehce of infor'mation, no enquiry is prescribed under the provisions of Sub section 3 of Section 170-B of the Code, 1959. TTius, the Sub- bivisional Officer mcy proceed to declare the Isaid as belonging to Ihe respondent No. 5, a tribe whieh has been declared as an cbwiginat tribe under Sub seetion (6) of Seetion 165. The petitioners have not explained delay in filing the appeal as there was no application for condonation of delay. 12. A Oivision Bench of the High Court of Madhya Pradesh, while considerirg the scope of Sub-section (2) of seetion 170-B of the Madhya Pradedi -I iwi.n.aiUDlBMi -7- ^ Land Revenue Code, which has been adapted by the State of Chhattisgarh. held in The cose of ^fmaram and athers v. Siale of M.P. ond others (1995 RN 124) as unden- "5. Sub-section (3) reads as follows; "(3). On receipt of the infornnation under sub-section (1), the Sub-Divisional Officer shall make such enquiry as may be deemsd necessary about all such transactions of transfer dnd if he finds that the member of dboriginal tribe hcs been defrauded of his. legitimate right, he shall declore the transaction null ond void..." Though the sub-seetion commences with the words "on receipt of the in'formation under sifc-section (1)," it cannot be thfft no show cause notice and no enquiry are necesscry in matters covered by sub-section (2), This hcs been cl<rified by this Coirt in Ohirendra Nath Sharwa v. Sfate ofM.P. and another, (1986 RN 106 = 1985 MPLJ 786). In tiiat case, constitutionaf validity of section 170-t) was challenged and the challefige was repelled. In doing so, the Court observed in por-a 14 of the reported judgment <s follows; "It is obvioiB that jn all cases including those in which a presumption arises under sub-section (2), a final order contemplated by sub-section (3) has to be made and it is only the making of such an order which results in the declaration that the transaction is null and void and the agricultural land revests in the transferor or his legal heirs. Unless such an order is made even in cases in which the presumption under sub-section (25 a'ises, there would be no order f<w" implementation to bring about the desired result. "9. Aa explained in Dhirendra Nath Shcrma scose., even in a case governed by sub-section (2) of section 170-B of Ihe Code, there must be diow cause notice and enquiry. In reply to show cause notiee, it is open to the vendee in possession to aver that his possession is by lawful authority. It must be open to him to cdduce evidence in sup(»rtof his contention Stiifeai. i ^ that his possession is by lawrful outhwity. If the S.D.O. is satisfied on the matet'ials before him either produced by the vsndee or received from other sources thot the •vendee s possession is based on lawful authority, the presumption is rebutted. That is the end of the operation of sub-section (2). It is important to know that the presumption hos nothirg to do with the aspect whether the document is obtained by fraud or other unfoir means or whether the document is substantially unfair and constitutes froMdulent trasoction affecting iegitimate right of the tribals. The presumption is confined only to one aspeet in a norrow compass namely, whether the possession is without lawful cuthority." 13, I am pespectfully in full agreement with the view taken by the High Court of Madhya Pradesh. 14. It is well settled principles of law that the deloy in filing appeal/petition cannol- be condoned in ^sence of on apptication for condonation of delay. The petitioners hwe not complied with the provisions of Section 170-B (1) of the Code, as it is mandatory for all the persons who are in possession of agricultural tand which belonged to a member of a tribe which has been declared to be an abonginol tribe to notify to the Sub-bivisional Officer. Hewever, delay of 9 days is not substantiol delay which deprives Ihe petitioners from explaining the possession of the (gricuttural lcmd which belonged to a tribe. Thus, Ihe order of the Sub-&ivisional Officer is vitiated as no enquiry was found by him as necessary without receipt of any informotion from the petitioners who were in actual possession of the tand belonging to aboriginal tribe. 15. It is, therefor-e, necessary to remit back the mcrtter to -tiie Sub-Divisional Officer, Mahasamund to hold proper enquiry after issuing show cause t —- -^ -9- notice to the petitioners who a'e in actuol possession of the agriculturat lands. 16. As a result ond for the reasons above mentioned, impu9ned orders dated 3.10.20)l (Annexure P-1), 8.12.200} (Annexure P-2), 30.3,1995 (Annexure P-3), 24.7.1991(Annexurs P-4) and 3.7.1991(Annexure P-5) pcssed by the respondents No. 2 to 4 are quashed and set-aside. Thus, the petition is allowed and the motter is remitted bcck to the Sub-bivisionol Officer for hotding enquiry upder the provisions of Section 170-B of the Code, 1959. Sd<- Satish K. Agnihotri Judge Subhesh /' v 'N