IN THE meH com OF cwQ§GARH AI BIx-qspUR of 2002. PEELIONEJI Ram Ratan S/o $amaru Dewangan,Aged about 74 years, R/o Village Babdara, Tahsil 8. Distt.Damtari (0.6.1) Writ petition No.5.“ Q9 é‘ _ \{_E_R___U__ S__‘ S i “State of Chhattisgarh to the f Secretary Revenue Deptt.D;gK.S. RESPONDEyg Bhawan Maniralaya G.:E.Ro ad Raipur (C. G.) Sub Divisional Officer (Revenue) Damri. Collector Raipur Di stt.Raipur. Additional Commissioner Raipur Division Raipue (C.G.) Qrembai W/o, J agdish Bil awan S/o J agdi sh Jil am‘ So Jagdish Minor through gradian Plrembai Shakunb ai 30 J agdish Ishawaribai S/o J agdieh Tahsil & District Damtari. All resident of Vill age Bodara P‘ETITION UNDER ARTICJQLS 2&7 OF CONSTIIUTION OF INDIA DETAILS OF PETITION L ta / / RESPONDENTS : State of Chhattisgarh & others Present : HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 606 of 2002 : Ram Ratan Versus WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Mr. N.K. Agarwal, J.) Shri HB Agrawal, Sr. Advocate with Ms. Sareena Khan, Advocate for the petitioner. Shri GD Waswani, Govt. Advocate for the State. Shri R. Tripahti, Advocate for respondent No. 5 to 9. ORAL ORDER (Passed on 25.02.2011) The instant petition is directed against the orders dated 30.09.1993, passed by the Sub Divisional Officer (Revenue) Dhamtari, in Revenue Case No. 4A/23/90-91, order dated 15.05.1995 passed by the Addl. Collector, Dhamtari in appeal No. 38l/A—23/94-95, and order dated 21.12.2001 passed by the Addl. Commissioner, Raipur Division in revision case No. 378/A—23/94—95, whereby and whereunder the SDO directed for restoration of possession of the disputed land in favour of respondents, and appeal and revision preferred there-against have been dismissed. The brief facts of the case as per petitioner are that, the petitioner, under a registered sale:deed dated 24.03.1975 purchased the disputed land comprising KhaSra No. 285 admeasuring 1.03‘Acre from one Jagdish son of Futel (predecessor in interest of respondent No. 5 to 9), after obtaining permission from Collector, Dhamtari, under section 165 (6) of the Land Revenue Code, 1959 (for short ‘the Code’) for a consideration of Rs. 2600/- 3. Undisputedly, the petitioner is non aboriginal tribe who purchased the property from an aboriginal tribe. 4. The SDO proceeded against the petitioner under Section l70—B of the Code. The petitioner herein appeared before the SDO and filed his reply. The SDO held although petitioner purchased the suit property after obtaining permission from the Collector, but did not notify the information as to how he came in possession of disputed land Within the period prescribed therefor in terms of Section l70—B of the Code, and passed the order to restore possession ofthe disputed land in respondent’s favour. 5. Challenge to the above order made by the petitioner before the appellate and revisional authority remained unsuccessful. 6. Shri HB Agral, leamed Senior counsel appearing for the petitioner would submit: disputed land was purchased after due permission of the Collector under Section 165 (6) of the Code, and therefore, the order passed by the authorities below merely on the ground : the petitioner did not notify all the information to the SDO as to how he came n possession of the disputed land i within the period prescribed therefor, is contrary to provisions of Section 170-B o the Code. f aw 7. Per contra, Shri GD Waswani and Shri Rajendra Tripathi, learned counsel appearing for the respondents supported the orders passed by the authorities below. 8. I have heard the counsel appearing for the parties and perused the orders impugned. 9. In View ofjudgments of Division Benches of MP High Court in cases of Dhirendra Nath Sharma V. State of MP & anotherl and Atmaram & another V. State of MP2, which were relied upon by this court in case of Nityanand Panigrahi v. State of MP & other (WP No. 4183 of 1997) decided on 17.08.2009, it is now settled, the presumption under sub—section (3) of Section 170—B of the Code is rebuttable presumption. In a case governed by sub section (2) of Section l70-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 W-as produced by the ‘Vendee or received nom other sources that the vendee’s possession is based on lawiill authority, the presumption is rebutted. 10. In the instant case, although it has been held by the SDO that the a. petitioner has purchased the property after permission from the Collector. The .order has been passed without holding any enquiry in terms of sub section (3) of Section 170—B of the Code l 1 1985 MPLJ 786 2 1995 MPLJ 633 merely on the ground that the petitioner did not notify as to how he came in possession of disputed land within the period prescribed therefor in terms of Section 170—B(1) of the Code. Simply because, sub section (2)Vhas 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 tribal vendor without conducting enquiry as envisaged under sub se y ction (3) of Section 170—B of the Code, particularl, in the premise of the definite case of the petitioner that he purchased the land after obtaining permission from the Collector as ruired eq under sub section (6) of section 165 of the Code. In that iew f V o the matter, I think that it is a fit case to be remanded to the SDO, Dhamtari, to conduct an enquiry de nova and ass appropriate p order on merit. ll. For the results and for the foregoing reasons, the writ peition is t allowed and the impugned orders passed by the 2nd, 3rd and 4th respondents are se aside and the proedings are remanded to the t ce SDO, Dhamtari, with a direction to conduct enquiry as an envisaged under sub section (3) of secion 170- of the Code and t B pass appropriate order after issuing notice to the petitioner and after giving fair opportunity to the petitioner to represent his a case. I also permit the petitioners well as the Department to file ua additional statements and documents n support o their i f respective case. No order asto costs. < p :wi ,. , l Sd/— N. K. Agarwal Judge