, [/%gj OF JUDICATURE AT JABALPUR gggg‘ PETITION mag“; {0F 2000 IN THE HIGH COURT OER: wt. Shyama ai, wife of Shri Vishambhar Lal Sahu, resident of village Kutela Tehil Saraypali, district Raipur(M.P.). VeSu ’rS RENDT: 1. The Clecto, Mahasamund, dstrict Mahasmund(M.P.). 2. Th Sub-visional—fficer (Revenue),raypali;distriét Raipur(M.P.). { 3. Smt. arlohender,oEé Pre Kumari,,idow b céSte of resident of village Kutela Tehsi Saraypli District Raur(M.P.) PTITION E UER ND ARS TICLE 226/22 7 OF THE CONSTITUTIN O OF IIA ND FOR ISACE SUN OF APIA PROPRTE WRITWR /ITS, ORDER AND DIRCTNS EIO ETC. “J PETITIN S B s SPOENS olr i a e DiO Sa i Ka m w y l a ip HIGH COURT OF CHHATTISGARH AT BILASPUR Writ getition No. 2222 of 2000 Petitioner : Smt. Shyama Bai. Versus RESPONDENTS : The Coliedor, Mahasamund & others. , ORDER ‘ For Pronouncement ofOrder > g .082011 $d/- ‘ N.K. Agrawal f Judge ' .‘im:7~ 2“ f7 HIGH COURT OF CI'H-IATTISGARH AT BILASPUR WRIT PETITION NO. 2222 of 2000 PETITIONER Smt. Shyama Bai. The Collector and others. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITITUTION OF INDIA M L83: Hon’ble Mr. N.K. Mal, g1 PRESENT :~ Mr. Ashish Shrivastava, Advocate for the petitioner. Mr. Arvind Dubey, P.L. for the State. ’ ‘ ’ Mr. HS. Patel, Advocate for respondent No.3 ORDER ( Q -8-20 11:) Instant petition tiled under Article 227 of the Constitution of India calls in question the legality and propriety of order dated 30.03.1998 passed by second respondent and order dated 04.01.2000 passed by flrst respondent. 2. Brief facts of the case are as under: (i) According to the petitioner, she purchased a land bearing Kh.No. 541 area 0.425 hectares {new Kh.No. 1233/ 1235 area 0.29 acres) vide sale deed dated 30th August, 1986 for a consideration of Rs.20,000/~ and obtained its possession. Later on, she constructed a house thereupon. (ii) On 12.03.1997, third respondent tiled an application under Section 170—B of the M.P./C.G. Land Revenue Code, 1959 (hereinafter referred to as ‘the Oode’) for @ reversign of disputed land inter alia on the grounds: she is by Caste Uraon (Scheduled Tribe) whereas "the petitioner is non-tribe and she has executed the sale deed in petitioner’s favour as a collateral security of a loan taken by her from the petitioner; the above sale deed was executed Without prior permission of the Collector for the reasons to be recorded in writing and is void ab-initio. The application was contested by the petitioner inter alia on the grounds: the sale deed was executed by third respondent with her consent and dee will; the land stands mutated in petitioner’s favour; if third respondent is Scheduled Tribe by caste, it was upon her to get prior permission from the Collector but as she is not Scheduled Tribe, therefore, permission has not been taken; the application flied under Section 170-B of the Code is not maintainable and the petitioner is residing The second respondent allowed third respondent’s application and directed for reversion of part of the disputed land in third respondent’s favour and also directed for payment of Rs.12,000/— for the remaining part of the disputed land as its price, upon which, the petitioner had already constructed the house, inter alia finding: third respondent is Scheduled Tribe by caste; the above transfer took place without prior permission of the Collector and is illegal. The appeal: thereagain'st was also dismissed vide impugned order dated 04.01.2000 inter alia dnding: third respondent is Scheduled Tribe by caste; under Section 1’70 of the Code the transfer by way of sale without prior permission of the Collector under Section (V) in the house constructed upon the suit land. 165 (6) of the Code is null and void. Hence, this petition. Shri Ashish Shrivastava, learned counsel appearing for the petitioner would submit: the application preferred by third respondent under Section 170-B of the Code was not maintainable inasmuch as sale transaction took place on 30th August, 1986; the learned S.D.O. has passed the order without enquiring into the question Whether or not third respondent is Scheduled Tribe by caste inasmuch as, according to sale deed, caste of third respondent is Christian; and the’authorities below have passed the orders without affording proper opportunity of hearing to the petitioner. 3. 4. On the other hand, Shri H.S. Patel, learned counsel appearing for third respondent, while admitting that Section 170—B of the Code is inapplicable, would submit: third respondent is Scheduled Tribe is not in dispute; it is also not in dispute, transfer by way of sale took place without prior permission of the Collector in violation of Section 165 (6) of the Code and is void ab-initio, and therefore, the authorities below have not committed any illegality in passing the orders impugied and the petition has no merit. 5. I have heard learned counsel for the parties and perused the orders impugned. 6. Before second respondent, third respondent examined Amritlal, Bhim Singh and Pyarelal. All have specifically stated that third respondent is Uraon (Scheduled Tribe) by caste. They were not cross-examined by the petitioner and their statements stand unrebutted. The petitioner examined Manohar, Vidyadhar, Prem Singh, herself, Chakradhar, Pal Vijay and Bano.‘ Vidyadhar, Manohar, Prem Singh and Bano have specifically stated that third respondent is Uraon (Scheduled Tribe) by caste. Petitioner has stated that third‘ respondent is Christian by caste. Pal Vijay has shown his ignorance about the caste of third respondent. Considering the above evidence and the certiiicate filed by third respondent showing her caste as Uraon (Scheduled Tribe), second respondent as well as first respondent have recorded a finding that third respondent is Uraon (Scheduled Tribe) by caste. It is not in dispute that Uraon caste was declared by the State Government in exercise of its powers under Section 165 (6) of the Code as Scheduled Tribe. In the light of above evidence, the nnding recorded by second respondent and first respondent regarding caste of third respondent cannot be found fault. 7. The provisions of sub-section (6) of Section 165 of the Code supersede the right of transferor of any interest in land conferred on the Bhoomiswami by sub—section (1) of Section 165 of the Code. There can be no transfer without prior permission of the Collector given for the reasons to be recorded in writing of the land belonging to Scheduled Tribe, to a person not belong‘ng to Scheduled Tribe. The Supreme Court in Keshabo and another v. State of M.P. and others, (1996) '7 SCC 765 has held in paragaph 4 as under: “ .........The M.P. Revenue Code is a welfare legislation made to protect the ownership rights in the land of a Scheduled Tribe to effectuate the constitutional obligation of Articles 39 (b) and 46 of the Constitution read with the Preamble. Economic empowerment of a tribal to provide economic democracy is the goal. Prevention of their exploitation due to igxorance or indigency is a constitutional duty under Article 46. Agricultural land gives economic status to the tiller. Therefore, any alienation of land in contravention of the above objectives is void.” 8. Section 170 of the Code provides for avoidance of 3? tmnsfer 1n contraventlon of Sectlon 165 of the Code Under‘ Secuon 170 of the Code, Where possessmn 1s transferred by a Bhoomiswami in pursuance of a transfer wh1ch ls 1n contravention of’sub-section (6) of Section 165 any person who, if he survived, the Bhoomiswami without nearer heirs would inherit the holding, may apply to the Sub-Divisional Officer to be placed in possession subject so far as the Sub- Divisional Ofhcer may, in accordance with the rules made in this behalf, determine to his acceptance of the liabilities for arrears of land revenue or any other dues which form a charge on the holding, and the Sub-Divisional Ohicer shall dispose of such application in accordance with the procedure as may be prescribed. 9. Looking to the date and nature of the sale transaction in the instant case, it is crystal clear, the transaction, which took place without prior permission of the Collector as envisaged under Section 165 (6) of the Code is void ab-initio and under Section 170 of the Code, the S.D.O. has power to place third respondent in possession of the disputed land, Inequity, the portion of land, upon which, the petitioner had constructed house, has been saved upon payment of Rs. l2,000/— as its price. 10. In View of above, I do not hnd any infirmity in the orders impugned warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 11. It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in The present case 12. Accordingly, the petition, being devoid of merit; is hereby dismissed. However, the petitioner is granted further time of two months’ to pay Rs.12,000/— to third respondent, as directed by second respondent, from the date of this order. Sdl- N.K. Agrawal Judge 13. No order as to costs.