r ,\;:]; r .* • i \..--^ ^Ff -3S IN THE HIGH COURT OF JTJDICATURE AT BILASPUR CHHATTISGARH W.P. fO N0. ^° 0006 PETITIONERS ^ 1] MOHyLMMEDILIYAS, Aged 62 yrs, » S/o. Hazi AbduIIa Musalman, 2] RASHEED, Aged about 54 years, S/o. Hazi Habdulla (Abdulla), Both above R/o. Risaipara, Ward Dhamtari Tahsil & Distt. Dham.tari (CG) -/"^ •^w ^ .s/ ^A^y /'^•a^ <?;' -y n<? ,y ^. RESPONDENTS VERSUS 1] STATEOFCHHAmSGARH, Through: Secretary, Revenue Department, D.K.S. Bhawan, Raipur, Distrlct Ralpur (CG) ^ ^'2] ^^ ^33] ^<< v'sS%.. COLLECTOR, Dhamtari, District Dhamtari (CG) SUB DIVISIONAL OFFICER (Revenue), Dhamtari, District Dhamtari(CO) ^.^-4] LAKFIANLAL S/o. Damram Gond, Aged about 55 years, R/o. Village Puri,' P.H.No. 42, Tahsil and Distt. Dhamtari(CO) ^^-5] KanwalSingh, S/o. Dauaram Gond, Aged about 66 years, R/o. Village Puri, P.H.No. 42, Tahsil and Distt. Dhamtari(CG) 6] Board of Revenue. Circuit Court. Raipur, Through: its Member, Raipur, DistrictRaipur(CG) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA •;%i>.\ " 1 se.-.. ft %^3S??A 8 ^ ^S^iS^-1 -^ j^ D HIGH COURT OF CHHAmSGARH, BILASPUR S^B_: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Writ Petition (Cl No.7081/2006 PETITIONERS Mohammed Iliyas & another Versus RESPONDENTS State of Chhattisgarh & Ors, OR D E R I? tl POST ON // JUNE, 2011 Sd/- M.M. Shrivastava Judge HIGH COURT OF CHHATTISGARH : BILASPUR S^: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Writ Petition (C) No.7081/2006 PETITIONERS RESPONDENTS Mohammed Iliyas 85 another Versus State of Chhattisgarh SB Ors. Petit!oiL_ynde^Art|cle^!27 ofthej;onst!tution^flnd!a Appearance: Shri Manoj Paranjpe, counsel for the petitioners. Shri Ajay Dwivedi, Dy. Govt. Advocate with Shri Suryakant Mishra, Panel Lawyer for the State. Smt. Meena Shasta"i, counsel for respondents No. 4 8s 5. ORDER (Passed on /7' .06.2011) 1. By this petition, the petitioners have assaUed the correctness and validity of order dated 16th November, 2006 passed by the Board of Revenue in Revision Case No. 63/A-23/2003-04, by which the Board of Revenue has allowed the revision preferred by respondents No. 4 & 5 and order passed by the Sub Divisional Officer (Revenue) on 19.5.1992 & order passed by the Collector on 18.3.2004 has been set aside and the matter has been remanded to the Collector with direction to suo motu review the order dated 15.4.1969. -2- 2. Facts necessary for adjudication of controversy involved in the petition are that the land in dispute originally belonged to one Dauvaram Gond. After his death, his wife- Janbati and sons- Sonu, Kawal & Lakhan succeeded to the estate as his heirs. On an application being made for grant of permission to sale the land in dispute in favour of one Allahbax, permission under Section 165 (6) ofthe Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as "the Land Revenue Code") was granted by the Additional Collector vide his order dated 15.4.1969 (Annexure P- 2). Thereafter, the land was sold by a registered sale deed in favour of Allahbax on 18.4.1969. Allahbax enjoyed the title and possession of the property until he sold the same to Md. Iliyas vide registered sale deed dated 10.7.1980 (Annexure P-3). Md. Iliyas got his name mutated in revenue records (Annexure P-4). In the year 1989, respondents No. 4 & 5 moved an application under Section 170 B of the Land Revenue Code before the Sub Divisional Officer for recovery of possession of disputed land. An order was passed on 28.4.1989 by the Sub Divisional Officer restoring possession to respondents No. 4 & 5. Aggrieved by the said order, an appeal was preferred before fhe Additional Collector, who also, affirmed the order of the Sub Divisional officer, vide order dated 2.11.1989. On representation being filed before the Commissioner, the Commissioner passed an order on 26.2.1991 (Annexure P-5) setting aside the order passed by the Addl. Collector and Sub Divisional Officer. The Commissioner -3- /^3 held that proper enquiry was not held and the matter was remanded to Sub Divisional Officer. Thereafter, the Sub Divisional Officer held enquiry and after obtaining report from his subordinate officers namely Tahsildar and Patwari etc., passed an order on 19.5.1992 (Annexure P-6) holding that the sale transaction was bona fide and there is no evidence of fraud. It was also held that the petitioner - Md. Iliyas had furnished necessaiy information within prescribed period as required under Section 170 B of the Land Revenue Code. On an appeal being preferred before the Collector, the Collector vide his order dated 18.3.2004 affirmed the order of the Sub Divisional Officer. Finally, respondents No 4 8s 5 preferred a revision before the Board of Revenue, which has been allowed vide impugned order dated 18*h November, 2006. 3. Learned counsel for the petitioners argued that the Board of Revenue acted with gross perversity, committed error apparent on the face of record and has also exceeded its jurisdiction and aTithority in allowing the revision and directing the Collector to exercise suo motu its power of review in respect of order dated 15.4.1969 by which permission was granted for sale ofthe land in dispute by the then Addl. Collector. Leamed counsel for the petitioner submits that in the enquiry before the Sub Divisional Officer, after remand by the Commissioner, no evidence has come on record to establish that respondents No. 4 8s 5 were defrauded of their legitimate right and deprived of their property, even then, /wl^ f:s^'y ,»-^&/y -4- on ipse- dvcit, the Board of Revenue took into consideration new material without there being enquiry on those aspects, to record a conclusion that the ta-ansactions are not bona fide. Leamed counsel for the petitioners further submits that in view of the settled legal position that mere non submission of return would not result in automatic reversion of land unless it is found upon an enquiry that any fraud was committed, the Board of Revenue acted mechanically. It is further submitted that the Board of Revenue exceeded its authority in directing the Collector to review, order dated 15.4.1969 after almost four decades, which is impermissible under the law. In support of his submissions, leamed counsel for the petitioners relied upon the decision in the case of Jtfa.ior ^.S^ Khanna 7s. Brig. F. J. Dillon1 Shalini Shyam Shetty & another Vs, Raiendra Shankar Patil 2 Ashok Kumar Dubey Vs. Parvati Bai & Ors. 3, Ranveer Singh since dead through L.Rs. Kishori Singh & Ors. Vs. State of M.P.4 . 4. On the other hand, learned counsel for respondents 4 85 5 submitted that the Board of Revenue has properiy exercised its jurisdiction after detailed consideration of the material on record before coming to the conclusion that the transaction was not bona fide. It is further submitted that the order of Board of Revenue, directing Collector to exercise suo motu power of review IAIR 1964 SC 497 2 (2010) 8 SCC 329 3 2009 (1) M.P.L.J. 446 <2010 (4)M.P.L.J. 178 -5- against order dated 15.4.1969 is within its jurisdiction and such direction could be passed in exercise of inherent powers conferred under Section 32 of the Land Revenue Code. Leamed counsel further submitted that the transaction of sale was clearly a sham and bogus transaction to deprive the father of the petitioners of his legitimate right. Learned counsel further submits that the concerned Additional Collector, who is shown to have granted permission on 15.4.1969, was not even posted during that period as revealed from details (Annexure R-4, 5/2). It is then contended that the sale transaction was illegal as Lakhan was minor at the time of sale, as reflected from entries in revenue record (Annexure 4,5 /l). Learned counsel further submits that the details of land shown in sale deed (Annexure P-1) are different from the khasra number and land shown in Annexure P-4. It is further submitted that as the petitioners failed to notify to the Sub Divisional Officer within a period of 2 years as mandatorily required under Section 170 B of the Land Revenue Code, in view of the provision contained therein, fhe land autoraatically reverted to the » respondents 4 85 5. Learned counsel for respondents 4 & 5 relied upon the decision in the cases of Dhirendra Nath Sharma Vs. State of Madhya Pradesh & another 5Atmaram Rohulla & Ors. Vs. Staste of Madhya Pradesh 6 . 5. I have considered the rival submissions made by learned counsel for the parties and perused the records. 5 1985M.P.L.J. 786 6 1995 M.P.L.J.633 6. The land in dispute was sold for a consideration of Rs.4,008/- by Sonu, Kawal & Lakhan and their mother Janbati in favour of Allahbax yide Annexure P-1. The order dated 15.4.1969 shows that the Additional Collector granted permission as required under Section 165 (6) of the Land Revenue Code. The extent of land under the transaction of sale is 3.34 acres, for which consideration of Rs.4,008/- was paid. . Respondents No. 4 85 5 did not raise any dispute whatsoever for almost 20 years. The application, purporting to be under Section 170 B of the Land Revenue Code, was filed before the Sub Divisional Officer in the year 1989. When the Sub Divisional Officer passed an order of return of land without making any enquiry, only on the ground that the petitioners failed to notified within a period of 2 years as required under Section 170 B ofthe Land Revenue Code, affirmed by the Collector, the Commissioner, on revision preferred, passed an order dated 26.2.1991, wherein, it was held that no enquiry was held and land was directed to be mechanically returned without there being any enquiry and finding that the transaction was fraudulent. The Commissioner remitted the matter for proper enquiry to find out whether any fraud was committed. 7. After remand, the Sub Divisional Officer initiated an enquiry as directed by the Commissioner. Order dated 19.5.1992 (Annexure P-6) of the Sub Divisional Officer shows that after remand, both the parties were noticed and on behalf of the petitioner, Noor -7- Mohammad has submitted an affidavit stating that fhe details were notified as required under Section 170 B of the Land Revenue Code. It was stated that on 26.7.1982 information was notified by sending the details by post. The order further shows that respondent No.5 - Kawal was examined by the Sub Divisional Officer and he stated that the land was sold by his mother and he received Rs.3,300/-. It has also come before the Sub Divisional Officer that ever since the petitioner purchased the land from Allahbax, he has been in cultivating possession of the same. After taking into consideration the evidence of the parties, documents on record, the permission dated 15.4.1969 granted by the Collector, the Sub Divisional Officer came to the conclusion that there is no evidence to show that there was any fraud played and it was recorded that fhe transaction was bona lide in nature. The order of the Sub Divisional Officer further shows that respondents No. 4 8s 5 did not bring any clinching material evidence, oral or documentary in nature, to establish fraudulent nature of transaction. 8. However, in the appeal filed before the Collector, a new affidavit was filed by respondents 4 & 5, contradicting their earlier affidavit filed before the Sub Divisional Officer. Though before the Sub Divisional Officer it was stated in the affidavit of respondent No. 4 & 5 that there was no fraud or malafide in the sale transaction and that proper consideration was received, before the Collector, it was stated for the first time that earlier affidavit n ^o' is fake and forged. The Collector recorded that along with the appeal no such affidavit was filed, but only at the time of argument, a new affidavit was filed, which is contrary to earlier affidavit and as no specific ground was taken in the appeal in that regard, the new affidavit filed at the time of argument liable to be ignored. The Collector further upheld the finding of the Sub Divisional Officer that the petitioners duly notified the information and that at the time of sale transaction, an amount of Rs. 4,008/- was paid by Allahbax and that the grant of permission vide order dated 15.4.1969 under Section 165 (6) of the Land Revenue Code is undisputed. On aforesaid findings, the Collector dismissed the appeal. 9. The Board of Revenue in its order dated 16th November, 2006 (Annexure P-8) recorded that Kawal in his statement has stated hisconsent in respect ofthe sale transaction. Having so recorded, the Board of Revenue held that though the Commissioner, Raipur had remitted the case to Sub Divisional Officer, but he did not * make any enquiry from therespondents 4 85 5 and the statement of Kawal was made basis. This finding is perverse. The order dated 19.5.1992 (Annexure P-6) of the Sub Divisional Officer shows that after the matter was remitted by the Commissioner, the Sub Divisional Officer noticed to all the parties, which included Sonu, Kawal 6s Lakan. However, in response to that, Kawal appeared before the Authority and his statement was recorded. It s not the case of respondents 4 8s 5 that even though Sonu and Lakhan had appeared before the Sub Divisional Officer, the Sub Divisional Officer refused to record their statement. The Sub Divisional Officer noticed the parties and took into consideration the evidence and documents of the parties. 10. In order to come to the conclusion that the transaction is not bona fide all that has been recorded by the Board of Revenue is that as respondents 4 & 5 have disputed the affidavits, which were filed by them before the Sub Divisional Officer, by filing another affidavit before the Appellate Authority, the entire sale transaction is fraudulent. Before coming to that conclusion, the Board of Revenue did not take into consideration the entire material, oral and documentary evidence and circumstances. The affidavit before the Sub Divisional Officer was filed by Kewal Gond. The order passed by the Sub Divisional Officer shows that Kawal did not raise any dispute with regard to the transaction of sale. The order of Appellate Authority shows that even in the appeal, at the time of argument, a new affidavit was sought to be pressed into service, which the Appellate Authority rejected. Respondents No. 4 8s 5 have been continuousty changing their stand. The sale transaction had taken place in the year 1969. For almost 20 years, respondents 4 8s 5 did not raise any dispute whatsoever. Even in the enquiry before the Sub Divisional Officer after remand by the Commissioner, no oral or documentary evidence was brought to establish that there was any fraud played in the year 1969 upon respondents No. 4 85 5 by the then """• 7 -11- Lakhan has been shown to be minor and as the sale had taken place in the year 1969, the same was illegal. At the first place, this is being submitted for the first time before this Court; secondly, this is essentially an allegation of facts, which requires an enquiry as to whether on the date of transaction of sale, Lakhan was minor and as to what would be its impact where the other two brothers and the mother of LaKhan were parties to sale transaction as venders. This ground having not been raised before the Courts below, respondents No. 4 & 5 cannot be allowed to raise aforesaid grounds for the first time before this Court. The other submission of learned counsel for respondents No. 4 8s 5 that the very permission dated 15.4.1969 is highly doubtful, because on the date permission was granted, the concerned Additional Collector, who has singed the order was not posted, is also being raised for the first time before this Court. In fact before the Courts below, no such ground was raised in order to assail the bona fides of the sale transaction or the permission granted. Under what circumstances, the concerned Addl. Collector granted permission on 15.4.1969, could be enquired into, had it been raised as an issue by respondents No. 4 8s 5 before the Sub Divisional Officer. However, neither in the first round of enquiry nor in the second round of enquiry, this ground has ever been raised by respondents No. 4 SE 5. Therefore, in the absence of there being any enquiry on this issue, this Court finds it difficult to accept the submission of learned counsel for respondents No. 4 - 12- t^ V. & 5. Learned counsel for respondents No. 4 85 5 also sought to raise doubt on the bona fide of transaction by stating that the details of the land given in Annexure P-1 does not tally with the details given in the revenue records in Annexure P-4. Surprisingly, even this grpund was not raised by respondents 4 8s 5 before any of the revenue authorities. Therefore, all those grounds which are being raised for the first time before this Coiu-.t, in a petition under Article 227 of the Constitution of India, are liable to be rejected as they were not available for enquiry or scrutiny before the Courts below. After the case was reserved for judgment, respondents No. 4 85 5, while submitting their written submissions, have placed on record certain orders passed by the Sub Divisional Officer and Additional Collector as also by the Additional Commissioner, along with copy of entries dated 14.7.1992 of Mutation Register. However, in view of the finding which has been recorded by this Court hereinabove, respondents No. 4 85 5 do not get any benefit in support of submissions already made before this Court. Moreover, it is found that the Board of Revenue on conjecture and surmises, having jumped to the conclusion that the transacdon was not bona fide, but fraudulent, has directed the Collector to exercise suo motu review in order to review order dated 15.4.1969 by which permission under Section 165 (6) was granted by the Addl. Collector. As the aforesaid direction is based on the Ending of fraudulent transaction, which, for the reasons stated hereinabove is -13- v perverse, the direction for exercise of suo motu review is un-called for. 12. In the result, I find that the order passed by the Board ofRevenue is perverse, in excess of its jurisdiction and therefore unsustainable in law. Therefore, the order dated 16th November, 2006 passed by the Board of Revenue is set aside. 13, The petition is accordingly allowed. 14. No orders as to costs. Sd/- M.M. Shrivastava Judge Praveen