HIGH COURT OF CHHATTISGARH AT hlLABPUR WRIT PETITION N0. 1571 OF 1998 \ PETITIONER Bhuwanlal 1Applicant) VER3US RESPONDENTS : Rnkmani Bai and others 0 R D E R. % *\~ pos'r oni6 MARcgLzoos _ sw. Dhlrendra Mishra \ Judge ' :§)3/’2"o"o"s’ ’j HIGH COURT OF CHHAT'I‘ISGARH AT BILASPUR WRIT PETITION NO. 1571 OF 1998 iPE'rl'glONER I: lBpuwamal S/o Ramadhin'Dewangan, R/Pf iApphcant) VIJJage Lasatola ‘- Tchail, Gnmialdehl, District, Durg (M.P) VERSUS Present :— Mr. H.B. Agtawal, Sr. Advocate with Mr. Pankaj Agxawal, Advocate for the petiiioncr. Mrs. Renu Kochar, Advocate for the respondents No. 1 6a 2. Mr. Arun Sao, G.A. for the State/ respondents No. 3, 4 £5 5. O R D E R (Passed onf§§arch 2008) Dhirendra Mishxa, J The peh'tioner, by the instant petition under Article 227 of the Constitution of India, has impugied the order dated 16. 1.1991 passed in Revenue Case No. 5/A-23 of 1990-91 by Sub Divisional Ofdoer (Revenue), respondent No.5 herein, the order dated 31. 1. 1995 passed in Appeal Case No. 6A] 23 of 1991‘92 whereby the appeal preferred by the petitioner against the order of the Sub Divisional O$cer was dismissed and the order dated 9‘11 February 1998 passed by Additional Commissioner, Raipur, Division-Raipur in Appeal Case No. 206/A- 23/95-96, by which the learned Additional Commissioner treating the RESPONDEETS 1. Rnkmam' Bai, S/o Balbhaddar Halwa 2. Punabai, S/o Balhhaddar Halwa Both resident of Village Lasamla, Tehsil Gundardehi, District-Durg (MP) 3. Additional Commissioner, Division Raipur, M.P. £4. Additional Collector, burg, District-Dm‘g (MP) 5. Sub-Divisional OEmr (Revenue) Tehsil Patan, District-Burg (MP) h) afomsaid appeal as levision under Section 50 of the Land Reven‘uc Code, has dismissed the mvision of the petitioncr. 2. Brigm stated facts necessary for the purpose of this petition ale that the disputed land bearing Khasra No. 134/3, area 0. 13 acxe and Khasra No. 135/2, alea 0;72 acre, was Ieconied in the name of Ramoufmbai, wife of Balbadhdhar (scheduled tribe). On the basis of report dated 11.10.1982 of the Revenue Inspector, Gundeulehi, the Sub Divisional 0&cer, Durg registered a case under Section 17GB of the Land Revenue Code, 1959 and passed an order‘to restore the possession to the tribal owner with a finding that the transfer was illegal. 3. The petitm'ner preferred appeal against the above order of Sub Divisional O$cer before the Additional Collector, who allowed the appeal and set’aside the onier=of the Sub Divisional 0&1" and remanded the matter for enquiry Whether appellant Bhuwanlal had filed his return under Section 170-B of the Land Revenue Code within *the prescribed period and to decide the matter ahesh. The Sub Divisional O$cen accordingly, conducted enquiry after due notice to the wtih'oner as also to the respondents and passed the impugned order with a nnding that the petitioner got executed a sham sale deed dated 31. 12. 1974 in favour of Shivcharan, s/o Sadhuram Halba whereas the land was, in kct, transferred to the peh'n'oner in the year 1976 itself as in Khasra Panchshala for the year 1975—76 to 1985-85 name of the petitioner is recorded as person in possession over the disputed__agiculture land‘ The sale deed was also executed by Shjvcharan in favour of the petitioner in the year 1983. The petitioner also failed to nle return in accordance with Section 170-B of the Land . Revenue Code (for brevity ‘the Code’) within the prescribed period and therefore, as per provisions of Section 170-B of the Code, transfer of the land in favour of the petitioner is a handulent transfer and the land automan'cally reverts to aboriginal tribal owner or her successors. With the above hndings, the learned Sub Divisional Omcer directed the Naib Tehsildar, Gunderdehi to record name of the respondents No. 1 & 2 in the revenue papers as Bhumiswami and further directed to put them in possession over the disputed land. ’, \ \ ’\ 4. The petitioner pmfened appeal against the above Older befom the Addmonal Collector Durg and the lcamed Addmonai Collector, also dlsrmsscd the appeal and upheld the onier passed by the Sub D1v1s10nal O$cer 5. The learned Additional Commissioner, Raipur heating the second appeal pleferred by the petitioner against the aforesaid orders, as revision under Secu‘on 50 of the Code rejected the Ieviston W1th an observation that the tnbal owner Ramoutlnbm kansferred the land to Shlveharan vnie reglstered sale deed dated 31 12 1974 however, possesslon of the peuhoner was xecoxded m Khasla Panchshala for the year 1976 and the land was subsequently transferred by Shiveharan to the peddoner. Thus, the petitioner was in possession over the disputed land belonging to the aborig'nal tribe when the Land Revenue (Amendment) Act, 1980 (No. 15 of 1980) came into force and themfote, the pmvisions of Section 170-B of the Code wete applicable. 6. Lealned counsel for the petmoner submtted that the petmoner was a bonatide pumhaser as he purchased the land nom Shtvcharan Halba who sold the land to the petitioner on 17.1.1983 (Annexuxe P/ 2) after seeking due pemissiodhom the Collector under Section 165(6) of the Code vide order dated 30.12.1982 (Annexuxe P/ 1). The land was transferred by respondent No. 1 Ramoutinbai to Shivcharan Halba, who also belongs to-aborlg'nal nibe, by registered sale deed in the year 1974. There is no enquiry as to under what circumstances the petitioner came into possession in the year 1976, the date on which the land stood tmnskrred in the name of Shivchamn. The Courts below considering that the petitioner was in possession of the disputed land recorded in the name of tribal and he did not furnish return as required under Section 170-B of the Code, have held that the petitioner purchased the land haudulently in the name of Shivccharan through sham sale deed though he was de facto purchaser and did not me return within the specitied penod The above hnding is arrived at without proper enquirv in this regard and therefore the matter be remanded to the Sub Divtsronal OMI' for conducting hesh enqmrv 7. 0n the other hand, learned counselfor the respondents argued that the revenue tribunals, on the basis of khasra entries for the year K V x 1976 onwalds, arrived at the conclusion that the petitioner was in possession of the disputed agricultural land, which belonged to a member of aboriginal tribe Ramoutinbai and he failed to notify the Sub Divisional O$cet within two yeaxs of the commencement of land Revenue Code (Amendment) Act as to how he came in possession of such land and in these circumstances, a presumption has been diawn under sub-section (2) of Section 170-B of the Code that the petitioner is in possession of the disputed land Without any lawful authon’ty and the impugmd order was passed after conducting due enquiry as contemplated under sub-secn'on (3) of Section 170-3 of the Code. 8. Reliance is plawd on the oxdexs passed in the matter of Dhirendra Nath Sharma Vs. State o£ MP. and mthcrland Atmarum and another Vs. 5m ofMLP.2 9. I have heard learned counsel for the parties and perused the orders passed by the Courts below. 10. The mlevant facts and pleadings of the respecn've panics have already been mentioned in detail in the foregoing paragraphs. Before considering the rival submissions made by the parties, it would be appropriate to advert to the provisions of Sech'on 170-B of the Code. Section 170-B of the Code was inserted by M.P. Amendment No. 15 of “1 70-3. Reversion of land of members of aboriginal tribe which was transferred by fraud (1) Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code Mmendment) Act, 1980 (hereinajier referred to as the Amendment Act of 1 980) is in possession of agn'adtural land which belonged to a member of a tribe which has been deciared to be an abonqmai tribe under sub-seeder: ('6) of sedion 165 between the period commencing on the 2W1 October, 1 959 and ending an the date of the commencement of Amendment Ad, 1980 shall, within 3(1wo years] of such commencement, notify to the Sub-Divisional Wiwr in such form and in such manner as may be prosaibed, all the irformaiion as to how he has come in possession ofsuch land. (2) If any person fails to notify the iryrormation as required by sub-sedion (1) within the period specmed therein it shall be presumed that such person has been in possession of the agricultural land without any lawfiu authority and the agriculmral land shall, onihe expiration of the period ‘ 1986 J.L.J. 19o 2 1995 Revenue Nimay 124 I 1980 (24.10.1980). Section 170-8 reads as under:- : / A /»\\ <(& aforesaid reven i0 the person to whom it originally beionged and if that person be dead, t0 his legal heirs. \ _ 2. Subs. byMp. 19 of1982123-1o-19311‘ 11. In the matter of Dhirendm Nam Sharma‘ in paragraph 12 of the order it has been held thus:- “12. Seciion 170-3 was inserted laterfar the same purpose with a view to cover the remaining transfers 0f agiiwltural [and belonging to tribab under which mey had been exploikd resultingfrom their unequal bargainmg capacity at the time of the tmnsadion By enacting seation 170-3, a duty was mt on every yerson in possession of agriadtural’lwtd, which belonged to a tribal at any time between 2"” October 1959 and the date of t af the Amendment Act af 1 980 to notify the Submwsiona: weer within the pen'od speageed in the yresa‘ibed manner all the infonnatian as to how he had come in possession of such land. Obviously, the provision enacted in section I 70-A for initiation of the proceedings was not found 5%a’ent and, therefom, sudt a provision became necessary to ensure that every such transadion of transfer of land belonging to a tribal at any time after 2'” Odober, 1959 when the MP. Land Revenue Code, 1959 came into force was brought to the notice of the Sub-Divisional on‘icer to enable examination ofits validity on the basis mnfonharion supplied by the person in possession Sub-sedion £3) provides that on the receipt ofsuch iryonnation, the Sub-Divisional opioer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he jinds that the tribal tmnsferor has been def1mded, the transaction shat! 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 sub-section {3) is to be passed only as a consequence of a finding reached after due enquiry that in the transaction of transfer, the tribal transferor had been defrmtded of his legitimate right. Unless such a conclusion is reached, no question arises of declaring the transaaion null and void and passing an order revesting the agricultural land in the tribal transfemr or his legal heirs.” In mph-13 it has been held that sub-section 2 of Section 70-B memly lays down mlr of evidence where a person in possession fails to notify the information Wlthm the specifmd period, a pmsumption is available that the possession of the agricultuml land is Without any lawful authority and the land stands mverted to the hansfemr or his legal heirs, as the case may be. The rule of evidence contained in sub-sech'oh (2) provides for such a presumption which hnal order as dispenses with any further cuquixy and the contemplated in sub-section (3) is required to be made on the basis of presumption arising under subsection (2). However, it has been further held that in all the cases inchlding the cases in which the 1 pmsnmpu'on under Sub-ssdion (2) is available, the final order as confsmplatsd by sub-sech'on (3) has to be made and only after‘such order is passed, msults in declaration that the transfer is null and void and the agricultuml land re-vests in transferor or his legal heixs. 12. In the matter of Aimaram and others? while dealing with Section 4 of the Evidence Act of 1872 it has been held that sub-section (2) of Section 170~B of the Code melely uses the word “shall be plesumed" and does not indicate that it shall amount to conclusive pmof and therefore, it does not bar any evidence being adduced for the purpose of dispmving it. The piesumph'on under sub-sech'on (4) must, therefom, be regarded as a rebuttable presumption. Referring to Dhirendra Nath Shanna’s case it has been held that in a case governed by sub-section (2) of Seciion 170-3 of the Code also enquiry after show cause notice is necessaiy Where in reply to the Show cause noh'ce the vendee appears before the Court and adduces evidence in support of his contention that his possession is by lawful authority and if the Sub Divisional %cer is satis&d on the maten'al before him as was produced by the vendee or received horn other sources that the vendee’s possession is based on lawful authority, the presumption is rebutted. 13. I am in full ageement with the principles of law laid down in the above cited judgments. 14. If we apply the principles of law laid down in the aforesaid matters in the facts .of the present case, it is observed that Ramoutinhai, a person belong'ng to aboriginal nibe, was the recorded owner of the disputed agricultural land between 2nd October 1959 and the commencement of the Act of 1980. The revenue tribunals considering the entries in the Khasra Panchshala of/the revenue records wherein the petitioner is shown to be in possession over the disputed land belonging to the aboriginal hibe since 1976 and also considering the fact that the petitioner has failed to noh'fy about such possession within the spectlied period to the Sub Divisional OEcer, commenced the proceedings under Section 170-3 of the Code and issued notice to the petitioner to explain his possession The petitioner has taken a stand that he purchased the land through registered sale deed hum its recorded owner Shivchnmn on 17th Januaxy 1983, who tmnsfentd the land after obtaining due permission under Scch‘on 165(6} of the Code vide oxdar dated 27.11.1982 &om the Collector, Burg. However, the petitioner could not explain as to how his nama appeals in theKhasxa Panchshala for the year 1976 and onwaxds as thc person in possession over the disputed land. He has also failed to explain as to Why he did not notify about his possession in accordmwe with Secu'on 170-8 of the Code to the Sub-Divisional 0mcms. For the afoxesaid reasons, the Sub Divisional O§cer drawing a presumpu‘on under subsection (2) of Section 170-8 of the Code held that the petitioner was in fact purchaser of the disputed land, who fmudulenfly pumhased the land belonging to Ramoutinbai in the name of Shivcharan through sham sale deed and subsequently, got the said sale deed executed mm Shivcharan in his favour in the year 1983. l5. From the above facts it is clear that them is evidence that the petitioner was in possession over the disputed agricultural land horn the year 1976 till 1980 when the Amendment Act of 1980 came int force, he did not notiiy the Sub Divisional 0%er about his'possession Within the specided period and med his return only on 18.8. 1989. The S.D.O. after conducn‘ng due enquiry and after ahbxding opportunity of hearing to the peu‘tioner, has passed the impugned order as the petitioner failed to rebut the presumption available under sub—section (2) of Section 170—B of the Code and declared that the transaction between the petitioner and the tribal land owner was n'auduknt and directed the Naib Tehsildar to record the disputed agricultural land in the name of the respondents No. 1 8n 2, the triabls, and also restore their possession. 16. On the basis of aforesaid discussion, this Court is 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 of the Constitution of India. Accordingly, the instant petition being devoid of substance is hereby dismissed. sdl- Dh'iremlra “Ema Judge o