^ -.n^ v°\ ^' ;5.W;:,ji HIGH COURT OF CHHATTISGARH AT BILASPUR W.P, No.4183 of 1997 Nityanand Panigrahi Vs. StateofMP&Others Post for pronouncement ofjudgment and orders oni7 /08/2009. Sd/. ^•KAo Judge mGH COURT OF CHHATTISGARH AT BILASPUR Petitioner Respondents W.P.No.4183ofl997 Nityanand Panigrahi, aged about 66 years, son of Sanurajai Panigrahi, resident of Titargaon, Tehsi! Jagdalpur, District Bastar, MP (Now CG). Versus 1. State of MP though the Secretary, Department of Revenue, Vallabh Bhawan, Bhopal, MP. 2. The Commissioner Bastar at Jagdalpur, District Bastar (MP). 3. Additional Collector, Bastar at Jagdalpur, District Bastar. 4. The Sub Divisional Officer (Revenue), Jagdalpur, District Bastar. 5. Jhitm, son ofButia. 6. Hari, son ofButia Respondent No. 5 & 6 are resident of Village Titargaon, Tehsil Jagdalpur, District Bastar. Writ Petition under Article 226/227 ofthe Constitution oflndia (Sinsle Bench: Hon'ble Mr. N.K. Asarwal, J.) Present : Shri Vishnu Kosta, Advocate for petitioner. Shri Satish Gupta, Govt. Advocate for the State. ORDER (Passed on \~/ day ofAugust, 2009) 1. The instant petition is directed against the order dated 23.07.1992, passed by the Sub Divisional Officer (Revenue), Jagdalpur (for short 'SDO'), in case No. 475/A-23/91-92, order il S dated 31.05.1993, passed by Additional Collector, Jagdalpur, in revenue case No. 7/A-23/92-93, and order dated 23.06.1997, passed by the Commissioner, Bastar, in revenue case No. 85/A- 23/92-93, whereby and whereunder, the SDO directed for restoration of possession of the disputed land in favour of predecessor in interest ofrespondent No. 5 & 6. The same was affirmed by the respondent Nos. 2 & 3, by dismissing the appeal & revision preferred by the petitioner. The brief facts of the case as per petitioner are that, petitioner's father Sanujjay Panigrahi, under a registered sale- deed dated 19.05.1965 (Annexure P/2), purchased the agricultural land comprising Khasra No. 216 Admeasuring 1 Acre, situated in village Titargaon, Tah. Jagdalpur, from one Butia son of Kartik Ram Bhatara (predecessor in interest of respondent No. 5 & 6), after obtaining permission from Collector, Jagdalpur, in revenue case No. 19/A-21/64-65 vide order dated 26.02.1965, for consideration of Rs. 100/- under section 165 (6) ofthe Land Revenue Code, 1959 (for short 'the Code'). The petitioner, in reply to issuance ofnotice under Section 170- B of the Code by the SDO, submitted that although he did not notify the SDO all the. information as to how he came in possession of such land, but he filed a photocopy of sale-deed and a copy of letter of Tahsildar, Jagdalpur, intimating the seller Butia with regard to permission granted to him to sale his land for a consideration of Rs. 100/- to petitioner's father Sanujjay Panigrahi. Vide order dated 23.07.92, the SDO passed the order directing to restoration of disputed land in favour of Butia on the ground that the petitioner did not notify as to how he came in possession ofthe disputed land within the period prescribed there for in terms of section 170-B of the Code. Against this, the petitioner preferred an appeal before the Additional Collector who too accepting the reason assigned by the SDO as valid to restore the subject land in favour ofthe respondent No. 5 & 6, dismissed the appeal vide order 31.05.93. Even in revision preferred by the petitioner met with the same fate. The Commissioner, Bastar, dismissed the revision vide order dated 23.06.97. Hence, this writ petition by the aggrieved petitioner. 4. Shri Vishnu Kosta, leamed counsel appearing for the petitioner would submit that the petitioner's father was bonafide purchaser of the suit land, who purchased the suit land from Butia son of Kartik Ram Bhatara vide registered sale-deed dated 19.05.65 afler obtaining due permission under Section 165 (6) ofthe Code, and therefore, the order passed by all the courts below merely on the ground that the petitioner did not notify all the information to the SDO as to how he has come in possession of such land within the period prescribed there for, is contrary to provisions of Section 170-B ofthe Code, and also runs counter to the judgments of Division Bench's in cases of ^^€caa6^ Dhirendra Nath Sharma v. State of MP and Another and Atmaram & Another v. State ofMP. Per contra, Shri Satish Gupta, Govt. Advocate, supported the orders passed by the courts below. I have heard the counsel appearing for the parties, perused 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 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)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) of Section 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 form and in such manaer as may be prescribed, all the information as to how he has come in possession of such land. (2) If any person fails to notify the informatioa as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the ' 1985MPLJ786 21995MPLJ633 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: by MP 19 of 1982 [23-10-1981] 8. In the matter ofDhirendra 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 agriculftjral 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 sufficient and, therefore, such a provision became necessaiy 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 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 fmding 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 lays down rule 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 land staads 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 final 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 presumption under sub section (2) is available, the final order as contemplated by sub section (3) has to be made and only after such order is passed, results in declaration that the traasfer is null and void and the agricultural land re-vests in transferor or his legal heirs." 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 of the 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 fhat 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 possession 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. 10. I am in respectful agreement with the principles of law laid down in the above citedjudgments. 11. By applying the principles of law laid down in the aforesaid matters in the facts ofthe present case, it is crystal clear that the orders have been passed by the Revenue Tribunals without holding enquiry in terms ofsub section (3) ofSection 170-B of the Code. As per the judgments of MP High Court referred hereinabove, enquiry as envisaged under sub section (3) of Section 170-B is equally insisted and applicable when the matter is covered by sub section (2), that is to say even in a case where the person who has come into possession of the land between 2nd October, 1959 and 24th October, 1980 did not notify the information to the jurisdictional SDO. Simply because, sub section (2) has enacted a presumption, it would be totally unfair for a jurisdictional SDO to straightway evict or take over the land and restore the same to the aboriginal tribai vendor without conducting enquiry as envisaged under sub section (3) of Section 170-B of the Code, particularly, in the premise of the defmite case of the petitioner that his father purchased the land after obtaining permission from the Collector as required under sub section (6) ofsection 165 ofthe Code. In that view ofthe matter, I think that it is a fit case to be remanded to the SDO, Jagdalpur, to conduct an enquiry de novo and pass appropriate order on merit. 12. For the results and for the foregoing reasons, the writ petition is allowed and the impugned orders passed by the 2" , 3 and 4th respondents are set aside and the proceedings are remanded to the SDO, Jagdalpur, with a direction to conduct an enquiry as envisaged under sub section (3) of section 170-B ofthe Code and pass appropriate order after issuing notice to the petitioner and after giving a fair opportunity to the petitioner to represent his case. I also permit the petitioner as well as the Department to file additional statements and documents in support of their respective case. No order asto costs. Sahu Sd/- N.K. Agarwal Judge