,.:1:'1^' '^•Mt- :-5S"^ a '&. I ia";?^SSi.. S ^ Vs^Ks^j j '"•tS?. :^^F HiGH COURT OF CHHATTESGARH ATBJL.ASPUR Wrii Pefifion A?n^ of 20SS Petifioner u Khari DHeshwar, S/'o Shri Khedi Aged about 65 years, Occupation: Agricuiturist; R,'o Viiiage Kudumkeia, Tahsil-Gharghoda, District-Ra'garh. ^ Versiis ResRondents 1. State of M.P. (Now State of Chhattisgarh) through fhe Secretary, Revenue Department, D.K.S.Bhawan, Raipur (CG) 2. The Commissioner, Biiaspur Divlsion, (Now the President, Board of Revenue Division, Biiaspur, Distrscf-Biiaspur (CG). 3. Ths Coiiector, Raigarh, District- Raigarh, (CG). 4. The Sub Divisional Offjcer (Revenue), Gharghoda, District-Raigarh, (CG). 5. Sadhram S/o Parasram Kanwar, R,'o Viilage KudumkeSa, Dlstrict-Raigarh. S. Recoyery Officer, Cooperatlve Socjety, Raigarh, District-Raigarh lf"l^ •'-'i- CWrit Petition under Article 227 of the Constitution of india) h/ir.Adi Raj Surana, counsei for the petitioner. Mr.Sumii Jhanwar, Panei Lav^yer for respondsnts No.1 to4/State. None prssant for respondents No.5 and 6. (SB: Hon'bie Mr. J.P. Sharma, J.) ORDER (ORAU (13-7-2011) By this petition under Articte 227 ofthe Constitution of india the petitioner has chailenged the iegaiity and proprietyof the order dated 12.6.2000 (Annexure A/5) passed by ths Commissioner, BiSaspur Division in Review Case E>Jo.70/A-23/98-99, affirming the order dated 6.3.1993 (Annexure A;'3) passsd by the Sub Divisionai Officsr, Gharghoda in Rsvenue Cass No.102/A-23/97- 98, whereby the Sub DivisioRa! Oificer^ Gharghoda, competent authority, underSection 170-B oftheC.G. Land Rsvenue Code, 1959 has deciared the .^^''•^^;^ ••.•lfc.TT1 ^3' -^- transactlon as iiisgal and has directed to return the possession of the iand to respondeni No.5, member of an aborigsnai tribe. 2. ', have heard iearned counsei ror the parties, perused the ordsr Impugned and other documents fiied on behaif ofthe petitloner. 3. Learnsd counsei for the psfitioner submits that the present petitioner has purchased the iand by way of action from cooperative socieiy vvhom respondent No.5 has mortgaged ths iand. The petitioner has not cemmitted any iiiegaiity by purchasing such iand by way of auctson he!d by coopsrative society, but without making any inquiry to such transaction both the Courts bsiow have deciarsd the transaction as iilegsi and havs dirested to retum the possession of the iand to respondsnt No.5 and thsreby committed iiiegasiiy. 4. On the other hand, iearned counss! for the State opposes the petition and submits that cooperative society is competent to mortgage the propsrty of a membsr of an aboriginai tribe but is not compstent to seii any land or irterest of a person noi beionging to such Sribe in terms of Section 41-A (5) of the C.G. Co-operafive Societies Act, 1960 (for short 'the Act, 1960'). 5. Admittediy, ths present psSitioner has purohased ihe iand by way of action held by co-operative society. Ownar of the iand i.s. respondent No.5 has mortgaged ths iand to co-operative society. Provisions of Section 41-A (5) of the Act, 1960 reads as under:- "41-A.Right of society to acquirs and dlsposs of immovabie property.- (1) (2) (3) (4) XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX , XXX (5) Nothing in this section shai! be coRsirued to empov.'er the society to ssii any iand or interest thsrein of a person belonging to an aboriginai tribe which has besn deciared io bs an aborigina! tribe by the State Governmehi by notjfication under sub-ssciion (6) or section 165 of the Chhattisgarh Land Rsvenue Code, 1959 (No.20 of 1959) to a person not beionging to such tribs. 5^ (5) XXX XXX XXX V" /\ 11: ^^^••; $1 - 2- • 6. SecSion 41-A (5) of the Act, 1960 creatss bar to ssli any iand or transfer of interest of a person bsionging to an aboriginai tribs upon a person not belonging to such tribe. 7. Definitely the aforssaid transaction was \n vioiaiion of aforesald provisions of ths Act, 1960. Both the Courts beiow have deciared the transactton as nuli and void and have directed to rsturn the possesslon of the iand to rsspondent No.5. Whiie psssing such orders, both ths Courts beiow have not committsd any iiiegaiity warraniing any interference. 8. Conssquentiy, ths pefition being devoid of merit is iiabie io be ciismissed and it is hereby dismsssed. No order as to costs. — - ^_,, -- T. P. Sharma Judge L