'?' ^< "••"«„ »i|J ^, ^^ '"< -ilirEii"" ,,:y ! ;.-. ..'I.^ HIGH COURT OF CHHATTISGARH AT BIL. W.P. No. 4145 of 1997 ''xV'^ Sd/- T. P. Sharma Judge Subhadradevi Vs. Genduram & Others . And W.P.No.4148 of 1997 Post for pronouncement ofjudgment and orders on|7 /08/2009. Sd/- N.K.Agarwal Judge Kt^S'-i's.^.i ^'^S^'3'' S k•s3iSeSSsi S ^ ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Petitioner Respondents Petitioner Respondents W.P.No. 4145 of 1997 Subhadradevi W/o Lt. Badri Prasad Gupta, resident of Station Road Balod, Tah. & Distt. Durg. Versus 1. 2. Genduram S/o Indal Gond R/o Station Road Balod, Tah. & Distt. Durg. Rambhabai w/o Ramji Caste Maratha Sahu resident of Dongargarh Tah. Dongargarh, Distt. Rajnandgaon. 3. State of Madhya Pradesh though the Secretary, Revenue Department, Vallabh Bhawan, Bhopal. 4. Sub Divisional Officer, Balod, Tah. & Distt. Durg. 5. The Additional Collector, Durg, Distt. Durg, MP. W.P.No. 4148 of 1997 Subhadradevi W/o Lt. Badri Prasad Gupta, resident of Station Road Balod, Tah. & Distt. Durg. Versus 1. 2. Genduram S/o Indal Gond R/o Station Road Balod, Tah. & Distt. Durg. Santosh Kumar S/o Rameshwar Das R/o Balod Tah. & Distt. Durg. 3. State of Madhya Pradesh though the Secretary, Revenue Department, Vallabh Bhawan, Bhopal. 4. Sub Divisional Officer, Balod, Tah. & Distt. Durg. 5. The Additional Collector, Durg, Distt. Durg, MP. Writ Petition under Article 226/227 ofthe Constitution oflndia fSinsle Bench: Hon'ble Mr. N.K. AgarwaI;J^ Present : Shri Ashish Surana, Advocate for petitioner. Shri Vimlesh Bajpai, Advocate for respondent No. 1. Shri Satish Gupta, Govt. Advocate with Ms. Sangeeta Mishra, Panel Lawyer for the State. ^/ \;: ORDER (Passed on u_ day ofAugust, 2009) The instant petitions, being identical in nature, are disposed of by this commonjudgment and order. These petitions are directed against the order dated 31.01.1996, passed by the Sub Divisional Officer (Revenue), Balod, Distt. Durg (for short 'SDO'), and order dated 21.07.1997, passed by the Additional Collector whereby and whereunder both the courts below have directed the petitioner to pay the cost of the suit land as compensation to the respondent No. 1, and in default, the land shall be reverted back to respondent No. 1 under the provisions of Section 170-B of C.G. Land Revenue Code, 1959 (for short 'the Code'). The brief facts of the case as per petitioner are that, the petitioner purchased the suit land from respondent No. 2 vide registered sale-deed. The respondent No. 2 had purchased the disputed land from Genduram (Tribal) i.e. respondent No. 1 after completing all the formalities as required under Section 165 (6) of the Code. After its purchase, the petitioner constmcted a house over the suit land in the year 1978-79 and since then she is living in the house alongwith her family members. The SDO initiated revenue cases. In the said cases, the petitioner was never served with the notice. The appearance of her son and husband in the case cannot be said to be appearance on behalf of the petitioner. The SDO, vide order dated i'f 31.01.1996, passed the order in both the cases whereby it has been directed to the petitionerto pay the cost ofthe suit land as compensation to the respondent No. 1, and in default, the land shall be reverted back to respondent No. 1 under the provisions ofSection 170-B ofthe Code. Being aggrieved by the said order, the petitioner preferred an appeal before the Additional Collector alongwith an application under Section 5 of the Limitation Act. The Additional Collector, after hearing the parties, dismissed the appeal on 21.07.97, affinning the order passed by the SDO. It was also held in the order that the appeal are not only barred by limitation but have also no merit. Hence this petition. Shri Surana, leamed counsel appearing for the petitioner would submit that the petitioner is bonafide purchaser of the suit land. The petitioner purchased the suit land from respondent No. 2, who in tum, purchased the same land from respondent No. 1 after obtaining permission under Section 165 (6) ofthe Code, 1959, and therefore, merely on the ground that the petitioner did not notify all the information to the SDO as to how she has come in possession of such land within the period prescribed there for the SDO has passed the order, which is contrary to provisions ofSection 170-B ofthe Act, and also mns couater to the judgments ofDivision Bench's in cases ofDhirendra Nath 9 "-^^® Sharma v. State of MP and Another and Atmaram & Another v. State ofMP2. Per contra, Shri Vimlesh Bajpai, leamed counsel for respondent No. 1 and Shri Satish Gupta, Govt. Advocate would submit that undisputedly the petitioner was in possession of the disputed land which belong to member of aboriginal tribe Genduram son of Indal Gond and she failed to notify the SDO within two years of the commencement of the Land Revenue Code (Amendment) Act, 1980, as to how she came in possession of such land, and in these circumstances, a presumption has been drawn under Sub section (2) ofSection 170-B ofthe Code that the petitioner is in possession of disputed land without any lawful authority. The Revenue Tribunal passed the impugned order afiter conducting due enquiry as contemplated under sub section (3) of Section 170-B of the Code after affording due opportunity ofhearing. I have heard the counsel appearing for the parties, pemsed the orders passed by the courts below. The relevant facts and pleadings of the respective parties 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 section 170- B ofthe Code. Section 170-B ofthe Code was inserted by MP ' 1985MPLJ786 21995MPLJ633 9. 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)Every 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 2 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 infonnation as to how he has come in possession of such laad. (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 belonged and ifthat person be dead, to his legal heirs. *Subs: byMP 19 of 1982 [23-10-1981] In the matter of Dhirendra Nath Sharma (supra), 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 enacting Section 170- B, a duty was cast on every person in possession of agricultural land, which belonged to a tribal at aay 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 mamier all the information as to how he had come in possession of such land. Obviously, the provision enacted in Section 170-A for initiation y ^. of the proceedings was not found sufficient 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 2" 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 infomiation, 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 'm the tribal traasferor or his legal heirs." In paragraph-13 it has been held that sub section 2 of Section 170-B merely lays down mle of evidence 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 lawful authority and the [and 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 further enquiry and the fmal order as contemplated in sub section (3) is required to be made on the basis of presumption arising under sub section (2). However, it has been further held that in all the cases including the cases in which the presumptioa under sub section (2) is available, the fmal order as contemplated by sub section (3) has to be made and only after 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." 'Sfe^';;".;^'^. 10. In the matter ofAtmaram (supra) while dealiag 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) must, therefore, be regarded as a rebuttable presumption. Referring to Dhirendra Nath Sharma's case it has been held that in a case govemed by sub 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 possessioa is by lawful authority and if the SDO is satisfied on the material before him as was produced by the vendee or received from other sources that the vendee's possession is based on lawful authority, the presumption is rebutted. I am in respectful agreement with the principles of law laid ll^ 12. down in the above citedjudgments. By applying the principles of law laid down in the aforesaid matters in the facts of the present case, it is observed that Genduram was the recorded owner of the disputed agricultiiral land between the period commencing on 2 October, 1959 and the commencement ofthe Act of 1980. Undisputedly, and as per the findings of the SDO based on evidence led by the ;S£^-i5.i..-'at;; f<;"A' ^ ''<"'& :,'! f S ;-<" /• ^!" 13. parties, the petitioner was in possession of the disputed land who constmcted house thereupon before 01.01.1984. It is also not in dispute that the petitioner did not notify the SDO all the information as to how she comes in possession of such land. On receipt of notice from SDO, the petitioner's Son and Husband appeared and filed reply to the effect that the land has been purchased without contravening the provisions contained in Sectioa 165 (6) ofthe Code, but to prove this fact, nothing has been brought on record by the petitioner. She has also failed to explain as to why she did not notify about her possession in accordance with provisions of Section 170-B of the Code to the SDO. For the aforesaid reasons, the SDO, drawing a presumption under sub section (2) of Section 170-B of the Code, and after holding inquiry under sub section (3) of section 170-B of the Code, held that the petitioner failed to rebut the presumption that the petitioner is in possession of the land without any lawful authority, and she is bonafide purchaser of the disputed land and held that the transaction is not bonafide. From the above facts, it is clear that the petitioner was in possession of the disputed agricultural land and constructed house thereupon before 01.01.1984. She did not notify the SDO about her possession within the specified period by filing retum in this behalf. The SDO, after due enquiry and after affording opportunity ofhearing to the petitioner as envisaged ;!t"3!;":ilt .^/" ^ under sub section (3) ofsection 170-B ofthe Code, passed the impugned order in accordance with provisions contained in section 170-B (3)(b), which has been affirmed by the Additional Collector. 14. 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. 15. It is well settled principle oflaw 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 orjurisdictional error is writ large on the face of the record, which is not in the present case. 16. Accordingly, the getitions being devoid of substances are hereby dismissed. However, looking to the facts that operation of the orders passed by the court below was stayed by this court, it is directed that, in case the petitioner pays the amount to the respondent No. 1 as directed by the SDO in his order within a period af two months from today, then the petitioner shall not be dispossessed/evicted from the suit land. No order asto costs. Sahu Sd/- N.K. Aganval Judge