IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ita‘ WP No. (3.2% 4% /2oo3 PETITIONER Smt Sumitra Devi, wife of Shri Raj endra Prasad Patel, aged \g?":£@§u '9' / about Savitripur, Hiyears Tal’lsil res1dent — Waég£h‘agar, of Vlllage District Surguja (Chhaggisgarh) “ iééln Q; $fx M p. VERSUS V« RESPONDENTS . The State of Chhattisgarh, through : the Collector, District Surguja (Chhattisgarh) z w) ‘ \g 0 Sonsaj, son of Shri Parmeshwar Gond, resident of Savitrinagar, Tahsil ~ Wadrafnagar, District Surguja (Chhattisgarh). iv; gf WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF 'WRIT IN THE NATURE OF CERIORARI OR ANY OTHER APPROPRIATE WRIT OR DIRECTION IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, \ HIGH COURT OF CHHATTBGARH AT BILASPUR Singie Bench: Hon’ble sngi Justice Ptashant Kumar Mishra Writ Petitinn No. 3284 of 2003 Smt. Sumitra Devi Egsus y. The State of Chhattisgarh and another ORDER Po$t f0r30 #9-2010‘ Sd/- nPrashant Kumar Mishra j, , ,vw_\\ HIGH COURT OF CHHATTISGARH AT BILA$PUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra‘ the Shri petitéoner. G.S. Agrawah Senior Mvocate with Shri UR. Kosh§éiemfoounsel for Shri Sanjeev AgrawaL Pane! Lawyer for the State/resfmndent No. 1. Shri AD. Shrivastava, counsel for the respnndent No‘ 2. ORDER ( go mama) The petitioner is aggrieved by the order (Annexure Pf8) passed by the Board of Revenua on 23" September. 2003 dismissing her revision to chauenge the order passed by the Collector, Surguja (Armexure-PIT) on 29‘“ Ayrii. 2002 and ihé angina! order passed by the Sub Divisional Omcer (Revenue) Wadrainagar. District — Surguja (Annexure P16) on 30‘“ September. 2000. reverted to her. After seeking Patwari report proceeding under Section 170 B of the Code was initiated and Show Cause Notice was issued to the petitioner. She fiied her repiy stating that she has purchased the property for Rs. 14OOI- in 1983 and is; in possession of tho iand and has constructed a house thereon. \ > (2) The respondent No. 2, who belongs to Gond tribai oomrnunity, moved an appiication under Section 170 B of Chhattisgarh Land Revenue Code, 1959 (henceforth The Code) before the Sub Divisional Officer (Revenue) (hencebrth ‘the 3.0.0.), Wadrafnagar inter elie stating that the petitioner is a Government servant owning 5O acres of tend but has encroached and is in illegai possession of her iand bearing Khasra No. 223, area 0.14 Aere, which deserves to be \ Wyit Petitigu No,3284 l 2003 PETmONER Smt. Sumitra Devi Versus 'RESPONDENTS The State of Chhattisgarh and anather. a «*wwwpm The pumhase was made through an instrument on a non-judicial stamp of Rs.5l-. ,, (3) Admittedty. the rand was recorded in the name o¢ Budhrém send on the date of commencement of Code Le. 02404959. lt is not in dispute that the petitioner has constructed a noose in the year 1984. The S.D.G. directed reversat of the iand after hnding that the petitioner is in iliegat pos§e§ston of the Iand. it was found by the 3.0.0. that no permiseion was sought‘under Section 165(6) of the Code and in fact there is no tawfu! transactiw between.Budhram Gond and the petitioner. i,v :65,” ,4 (4) Petitioner preferred an appeai before the @ltector, 3urguja, which was dismissed on 29‘“ April. 2002 and the revision peu‘tion preferred by her. before the Board of Revenue was also dismissed on 23‘“ September. 2003. 3 (5) Assailing the order, it was contended by the teamed counsei for the petitioner that the provision under Section 170 B of the Code are not attracted and the Collector committed a serious error of jurisdiction by holding that there is vioiation of the provision contained under Section 165(6)}ef the Code by making a new case. Leamed counsei would further argue mat since the limitation for initiation of action under Section 1 70 A of the Code was five years, ~ the subject application tiled by the respondent No. 2 in die year 2000 was apparentiy barred by iimitation. He would also submit that the S.D.O. has not held the enquiry in accordance with law. J r ‘ i w (6) On the otherhand, leamed e counsel for the respondenk would argue that i I. the Board of Revenue has affirmed the orders passed by the Collector and S.D.O.(Revenue), hence three revenue Coors have concurrently decidedvdie ‘ case against the petitioner and no interference in exercise of powers under \/ Article 226/227 of the Constitution of indie is warranted. They would further 7 y 7 H .\ x argued that the subject transaction is on a non-judicial stamp of R554; which confers no title on the patitioner and that before enteting the said transaction Coiiector's permission was not obtained, therefore, the petih'oner is not only an encroacher but is a rank trespasser, which is per so contrary to the provisions of contained in Sections 165(6) and 170 B of the Code because the petitioner is a non—tribai and is in occupation of land beionging to the joint famiiy of the respondent No. 2. (7) (Annexure PM) is the Show Cause Notice issued to mgpetrhoner by the S.D.O. (Revenue). By this notice the petitioner was caiied upon to infonn the p authority as to the nature of possession and the authority by which she is entitled to remain in possession of a land beionging to the tribai. in (Annexure ‘ P/Z) name of the reepondmt No. 2 aiong with other members. of joint {entity is v recorded in the revenue records. (Annexure Pf3) is a report of Benami transaction in which is stated that the iand beiongs to the joint famiiy of respondent No. 2 and the petitioner is in possession of the subject land. (Annexure PM) is an instrument dated 25-01-1983 allegedly executed by Budhram Gond in favour of the petitioner. The instrument is titted as ‘saie-deed forever'. (Annexure Pi5) is another sate-deed on a non-judicial stamp of RS51- again executed by Budhram in favour of the petitioner. There is dispute about the date mentioned in this document. my Annexure PM and H5 are the only document on which the petitioner relies to claim right and entitlement to protect her possession. lt is the r (8) petitioner's own case that the land was sold to her for Rs.14OOI-. Apparentiy such transfer of interest in an immovabie property requires compulsory registration under Section 17 of the Registration Act. Thus. at the very inception the pedtioner is in possession of the land on the basis of a document, / which is not admissible in law. No other source of title or entitlement to remain /\ v/ in possession has been projected by the petitioner. \ B‘V 3 (9) Section 165(6) of the Code prohibits such hansaction between an aborigina! tribal member and member to non-abofiginal tribe. A transfer between an ab-originat tribe to a non-aborigina! tribe by way of sale or otherwise cannot be made without the permission of a revenue ofhcer not below the rank of Coiiector. Thus, there is apparent violation of provision contained in 165(6) of the Coder (10) The petitioner has raised aigument to the effect that gefbollector has wrongly treated the case under Section 165(6) of the Code. However, on (at perusal of me record it would appear that the Colbcton Surguja was justitied in hoiding that the petitioner's possession over the land is in violation of 165(6) of the Code. In the absence of any legal right existing in favour of the petitioner to remain in possession of the land belonging to a member of an aboriginal tribe, this petition under Articie 2261227 of the Constitution of lndia is sans substance which deserves to be and is hereby dismissed. / // / Sdi— new a Ytash$ E //4//