T IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227) No, ^ 90 'l /2009 PETITIONERS pJ&vV^T z^j Jaiprakash, aged about 47 years, S/o Narayansingh, By Caste Gond, R/o Om Danteshwari Petrol Pump, Distt. Kanker L;y1t RESPONDENT y /./y VERSUS la. Smt. Belasa Bai, W/o Ramsaya Ib. Minor Mod, S/o Ramsaya lc Minor Birsingh S/o Ramsaya Id Minor Bisri, D/o Ramsaya 1 b to Id being minor through her mother Smt Belasa Bai W/o Ramsaya, R/o Benoor, Tahsil and Distt. Narayanpur, 2. Dashrath S/o Soman R/o Benoor, Tahsil and Distt. Narayanpur, 3. Smt Shanta Bai W/o Udaynath Sagar 4. Prahlad, S/o Udaynath Sagar 5. Jyoti D/o Udaynath Sagar 6. Rashmi D/o Udaynath Sagar, 7. Minor Rajeshwari, D/o Udaynath Sagar, 8 Minor Santosh D/o Udaynath Sagar 7 & 8 being through her mother Smt Shanta Bai W/o Udaynath Sagar Respondent no. 3 to 8 R/o Tahsilpara, Kondagaon, 9. The State of Chhattisgarh through Collector, Bastar WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.r227)No.6901of2009 Petitioner Plaintiff Respondents Jaiprakash Versus Smt. Belasa Bai & Others '^ Writ Petition under Artide 227 ofthe Constitution oflndia (Smsle Bench: Hon'ble Mr. N.K. Asarwal, J.) Present : Shri Parag Kotecha, Advocate for petitioner. Shri GD Waswani/Go\4. Advocate for the State. ORDER (Passed on 15th day ofDecember, 2009) Heard on admission. 1. The instaot petition is directed against the order dated 20.07.2009, passed by the Commissioner Bastar Division by which the Commissioner affirmed the order dated 11.11.2005 passed by the Additional Collector, Narayanpur, and order dated 14.02.2002 passed by the SDO (Revenue), Kondagaon, Distt. Bastar; whereby and whereunder the SDO Kondagaon passed the order under Section 170-B ofC.G. Land Revenue Code, 1959 (for short 'the Code') in favour of Ramsai and Dashrath. 2. The brieffacts ofthe case as per petitioner are that, Ramsai and Dashrath jfiled an application before the SDO, Kondagaon stating that they are Tribe, the suit land bearing Khasra Nos. 1046, 971,973,978 and 1046/35, totel area 9.90 Acre belongs to them after death of their father Soman and mother Pandri. Udaynath Sagar (Non-Tribe) i.e. the father ofrespondent No. 4 ^y^ ^) to 8 and husband of respondent No. 3 took over possession of the suit propert}7 and since then they are in possession of the suit property. It was further stated by the said Ramsai and Dashrath that the said Udaynath Sagar got executed the Sale- deed Benami in the name ofJaiprakash i.e. petitioner but he and afiter his demise, his legal representatives were in fact in possession ofthe suit property even before execiition ofthe said Sale-deed, and prayed for reversion of the suit land in their favour. The SDO, after issuing notice and after affording opportunity of hearing to the parties, recorded its finding that the transaction was Benami, said Udaynath Sagar and his legal representatives were in possession of the suit property, passed tfie order in favour of Ramsai and Dashrath. The said order was affirmed by the Additional Collector as wel! as by the Commissioner, Bastar. Hence this petition. Shri Parag Kotecha, learned counsel appearing for the petitioner would submit that the revenue authorities have passed the said order in favoiir of respondents i.e. lega! representatives of Ramsai and Dashrath only on the ground that said Sale-deed have been executed by the minor through their guardian mother without getting any permission of the court which is required under Section 8 of the Hindu Minority and Giiardianship Act, 1956, whereas, the parties, being Tribe, the said permission of court is not required because as per Sub section 2 of Section 3 /y\ 9 I 'l<Si&li^^ 1 I- J •^. .^ Sl '^-.'v^ ofthe said Act, the said Act is inapplicable in case of Scheduled Tribe, and therefore, the order passed by the revenue authorities are withoutjurisdiction and deserve to be quashed. I have heard the counsel appearing Ibr the petitioner and pemsed the orders passed by the revenue authorities. The relevant facts and pleadings of the respective parties have already been mentioned in detail in the foregoing paragraphs. Before considering the submissions made by the petitioner, it would be appropriate to advert to the provisions ofsection 170- B ofthe Code. Section 170-B ofthe Code was inserted by MP AmendmentNo. 15 of 1980 (24.10.1980). Section 170-B reads as under: "170-B. Revision of land of members of aboriginal tribe which was transferred by fraud- (l)Evety person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under subsection (6) ofSection 165 between the period commencing on the 2nd October, 1959 and ending on the date ofthe commencement ofAmendment Act, 1980 shall, within [two years] of such commencement, notify to the Sub Divisional Officer in such fonn and in such manner as may be prescribed, all the information as to how he has come in possession ofsuch land. (2) If any person fails to notify the information as required by sub-section (1) 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 shall, on the expiration of the period aforesaid revert to the person to whom it originally beionged and ifthat person be dead, to his legal heirs. *Subs: by MP 19 of 1982 [23-10-1981] 7. In the matter of Dhirendra Nath Sharma (siipm), in para 12 of the order it has been held thus: "72. Section 170-B was inserted later for the same purpose with a view to cover the remaining transfer of agricultural land belonging to tribals under which they had been exploited resulting from their unequal bargaining capacity at the time ofthe transaction. By enactmg Section 170- B, a duty was cast on every person in possession of agricultural land, which belonged to a tribal at any time between 2 October, 1959 and the dale of commencement of the Amendment Act of 1980 to notify the Sub Divisional Officer within the period 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 sufiScient and, therefore, such a provision became necessary to ensure that every such transaction of transfer of land belonging to a tribal at any time after 2nd October, 1959 when the MP Land Revenue Code, 1959 came into force was brought to the notice of the Sub Divisional Officer 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 Sub Divisional Officer 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 defrauded, the transaction shall be declared null and void and an order would be made revesting the agricultural land in the tribal transferor or his legal heirs, as the case may be. The order contemplated by subsection (3) is to be passed only as a consequence of a finding reached after due enquiry that in the transaction oftransfer, the tribal transferor had been defrauded of his legitimate right. Unless such a conclusion is reached no question arises of declaring the transaction null and void and passing an order revesting the agricultural land in the tribal transferor or his legal heirs." In paragraph-13 it has been held that sub section 2 of Section 170-B merely iays down rule of evidenee where a person in possession fails to notify the information within the specified period, a presumption is available that the possession of the agricultural land is without any lawfal authority and the land stands reverted to the transferor or his legal heirs, as the case may be. The mle ofevidence contained in sub section (2) provides for such a presumption which dispenses with any fiirther enquiry and the final order as contemplated in sub section (3) is required to be made on the basis ofpresumption arising under sub section (2). However, it has been fiuirther held that in all the cases including 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 aflter such order is passed, results in declaration that the transfer is null and void and the agricultural land re-vests in transferor or his legal heirs."" 8. In the matter of Atmaram (supra) while dealing with section 4 ofthe Evidence Act of 1982 it has been held that sub section (2) of Section 170-B ofthe Code merely uses the word "shall be presumed" and does not indicated that it shall amount to conclusive proof and therefore, it does not bar any evidence being adduced for the purpose of disproving it. The presumption under sub section (4) musl, therefore, be regarded as a rebuttable presumption, Refemng to Dhirendra Nath Sharma's case it has been held that in a case govemed by syb section (2) of Section 170-B of the Code also enquiry after show cause notice is necessary where in reply to the show cause notice the vendee appears before the court and adduces evidence in support of his contention that his possession is by lawful authority and if the SDO is satisfied on the material before him as was produeed by the vendee or received from ^- /t:k'^ S" ©SRX';^' ''^ tf '^SBS'. 1 •^^ ,; ^. \ ^:^ other sources that the vendee's possession is based on lawful authority, the presumption is rebutted. 9. I am in respectful agreement with the principles of law laid down in the above cited judgments. 10. By applying the principles of law laid down in the aforesaid matters in the facts of the present case, undisputedly, late Soman i.e. father of P.amsai and Dashmth was the recorded owner of the suit land and after his death the land stands recorded in the name of Ramsai and Dashrath as well as in the name of their mother Pandri. The revenue authorities have categorically recorded its finding that Udaynath Sagar (Non- Tribe) was and after his demise his legal representatives were in possession ofthe suit property and the sale transaction in favour of petitioner is Benami. It was further held by the revenue authorities that the said Udaynath Sagar got the Sale-deed executed in the name of petitioner but infact he was in possession ofthe suit land even prior to execution of Sale-deed in favour of the petitioner. Thus, the findings recorded by the revenue authorities are based on appreciation of evidence. The possession ofsaid Udaynath Sagar cannot be said to be legal as he was not bonafide purchaser ofthe suit land. It is also not in dispute that said Udaynath Sagar did not notify the SDO, Kondagaon about his possession within the specifled period by filing retum in this behalf. The SDO, after due enquiry and after afifording opportunity of hearing to the petitioner as well ^ t T as to the other persons as envisaged under sub section (3) of section 170-B of the Code, passed the impugned order in accordance with provisions contained in section 170-B (3)(b), which has been affirmed by the Additional Collector as well as by the Commissioner, Bastar. 11. The revenue authorities have passed their orders mainly on the ground that the said Udaynath Sagar was and after his death his legal representatives were in possession of the suit land and were holding the suit land Benami in the name ofpetitioner and not on the ground that the Sale-deed has been executed by the minor without their being any permission under Section 8 ofthe Hindu Minority and Guardianship Act, 1956. In fact it has been said in furtherance of the finding recorded that the transaction was not bonafide which also appears to b©irrelevant so far as point involved in the case is eoncemed. 12. So far as, finding of possession of the said Udaynath Sagar is concerned, the same is based on appreciation of evidence, nothing has been shown by tiie petitioner so as to infer that the said finding is based on no evidence or is contrary to the evidence recorded in the case, therefore, the revenue authorities have rightly passed the said orders and no fault can be found in it. Since, the possession of said Udaynath Sagar was not found bonafide, the revenue authorities were right in passing the said orders under Section 170-B ofthe Code. Sahu 13. Therefore, on the basis of aforesaid discussion, I am of the considered opinion that there is no illegality or infirmity in the impugned order which warrants interference in exercise of powers under Article 227 ofthe Constitution oflndia. 14. It is well settled principle oflaw that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitirtion oflrtdia, should refrain itselffrom interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity orjurisdictional error is writ large on the face of the record, which is not in the present case. 15. Accordingly, the petition being devoid of substance is hereby dismissed. No order asto costs. Sd/- N.K.Agarwal Judge