3 (.„§ ^- ^r-^^f, ^j E<.i.<atu H»7l^ ..n '.J t^' co CL ^-leo/ ..-•-•"..A':^'/X\.V'" ^^y^^" ^I^^"" <.6«-''' IN THE HI6H COURT OF JUDICATZfRE AT BILASPUR CHHATTISSARH Vt/T.+ Ps+.t>o"^N". S^^V of 2006 Smt. Sukhmati, y/ldow of Late &.K. Nair. Aged about 40 yeara, ft/'o Sehind Viiiage Lakshmanbsnd,Po!ice Statiori. Korba, &isTricT: Korba, ChhattiSQiM'h. ^<^rv^ ^>:^y^ .^^> .** . Jt-.</"< - 'v'ersus - RESPON&ENTS; ^ x ^ ^ Chir'onji Lal, S/o TekurtyT1 Nhnwar^ R/o Viliaae: MuSuniuKuia, Tshsih Sak+i, District; Jan wr-Chamact LnhaTnsaarn- ?tfadha Bci Vi/ido'A' of Late Bhaiora,"-,, R/'o Viilage; U!da, Tehsll: Khcrslc, &istrict; ftaigorh, Chhattisgarh, ^3. Kunti Bai, VV/o Shaukiial, R/o yiilcge; Scn'A'ar-sha. Tehsil: Khgraia. &istr'!c+: Raigarh, Chhattisgarh. 5\^' nn.^ifl^' / 3- Bairam, S/o ftamchandra Agrawal, K/o Vii!nqa: Sakti, C/o Rateria AAedical Stores, Sckti, Tehsii: 5ckT!, &istrj<;t; Janjgir-Champa, Chhat-tisciarh. State of Chhcr'-isgarh, Throuuh the CsiSec'i-or, D'STF'cT^ janj9ir-ci^rtiwpa, /di-L.-«.**•.—.^-.-t. \/rinui i)<3^U[~rt. ^ <») / 6. Board of ftevenue, ChhattiSQarh • at Bilaspur, Chhattisgam. w r " ^7. 5ub Div'sionc! Officsr (Revenue), Sckti', ISistrict; Janjgir-Champa, Chhottisaarh. ^- PFTmQN UNDER ARTICLE 226/227 OF THE CQNSTITUTIOy OF IN&IA FOi^I3SUANCE^?^APJSRQPRIATE Wi iIT/y/RFTS. OXRECTIONS ETC.. IN THE NATURi OF M.-SN&^MUS. CERTI10S.AK1 -4ND/OR ANV OTHER -SUrTABLE V. 1 ^? HIGH COURT OF CHHATTISGARH AT BILASPUR WntPetition No, 3260 of2006 PETITIONER Smt. Sukhmati VER8US RESPONDENT8 : Chironji Lal &others WRTT PETmON UNDER ARTICLE 227 OF THE CONSTTTUnON OF INDIA fSB: Hon'ble Mr. N.K. Aearwal. J.) Present : Shri Sanjay K Agrawal, Advocate for the petitioner. Shri Sunil Sahu, Advocate for respondent No. l to 3. Shri Vinod Tekam, Panel Lawyer for State/respondent No. 5to7. ORAL ORDER (Passed on 09.012011) The instant petition is directed against the order dated 03.05.2006, passed by Ifae Board ofRevenue in Revision Case No. 144/A-23/2002-03. The brief facts of the case as per petitioner are that, the Sub Divisional Officer, Sakti, passed an order on 31.03.1998 under Section 170-B ofthe Land Revenue Code,1959 (for short 'the Code') reverting the land in fevow ofTekuram i.e. predecessor ofrespondent No. 1 to 3. The above order was reversed by the Addl. Collector, Janjgir, in an appeal filed, vide its order dated 22.08.2001. The Board of Revenue, in Revision Case No. No. 144/A-23/2002-03, set aside the order passed by the Addl. Collector and restored the order dated 31.03.1998, passed by .f-S^-" •i:s'.,-sS\ T-J. "Sf!!^ '^^[^ < v ;' 4. the SDO, Sakti. Hence, this writ petition by the ^grieved petitioner. Shri Sanjay K Agrawal, leamed counsel appearing for the petitioner would subinit that fte SDO has passed the order without adopting the proper procedwe as envisaged under sub section (3) of Section 170-B of the Code without giving opportunity of hearing i.e. for producing the documents and evidence. He would farther submit that Ifae land in question was purchased by Balram and others with due perarission ofAddl. Collector under Sectioa 165 (6) ofthe Code dated 01.05.1971 (Ex. P/l). This fact has been ignored by the SDO as well as by the Board ofRevenue whUe passing tiie order, and tiierefore, Ihe order impugned as well as the order passed by the SDO are Ulegal and deserve to be set aside. On the other hand, Shri Sunil Sahu, learaed counsel appearing for the respondent No. 1 to 3 supported the order impugned and submitted that the order has been passed by the SDO after affording due opportunity of hearing to the petitioner; permission under Section 165 (6) ofthe Code (Ex. P/l) passed by the Addl. Collector was not in accordance with law; inasmuch as tfae said order was passed without making any enquiiy. He would fi.irther submit tfaat the transfer ofthe land was also in contravention of the above pennission. Addl. Collector's above permission was in favour of Sevak Ram whereas the land was alleged to be transferred by way of .y-ys ,y^-a^ I, "" ":?i \ '^.^./ ' ..,.-<?" )<?'^ registered sale deed in favour of Balram and olfaers, who, in tum, sold it to Kutappan Nair. 5. I have besxd the counsel appearing for the parties and perused the ordeTS passed by the courts below. 6. Before considering the rival submissions made by Ae parties, it would be appnpriate to advert to the provisions of section 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 ofland ofmembers ofaboripnal tribe which was Iransferred by fraud- (l)EvCTy pers<m who on the date ofcommencementoftheMadhyaRradeshLand Revenue Code (Amendment) Act, 1980 (hereiaafler referred to as the Am'endment Act of 1980) is in possession of agricultural laad whidi belonged to a member of a tribe whieh has been declared to be an aborigjnal tribe under subsection (6) of Section 165 between 1fae period commeneing oa Ihe 2 October, 1959 and ending <m the date of fhe commencemeat of Amendment Aet, 1980 shall, within (two yeais] of such commencement, notify to the Sub Divisional Qfficer in such f(«mmd in such naanuer as may be preseribed, all fhe infonnation as to hpw he has eome in possession of such land. (2) Ifany person fails to notify fhe information as required by sub-section (1) witfiin the period specified therein it shall be presumed that such person has been in possession ofthe agriculturd land without aay lawfal authority and the agricultutal land shall, on Ihe esqriration oftiie period aforeaaid revert to Ifae person to whom it ori^nally belonged and ifthat person be dead, to his legal heirs. 3[2-A) Ifa Gram Sabha in fhe Scheduled area referred to in Clause (1) ofArticle 244 oflhe Constitution finds Ifaat any person, otiier than a member of an aborigaal tribe, is ia possession of any laad ofa Bhunuswami beloi^ing to an aboripnal iribe, without suiy lawfiil authority, it shall restore the possessioa of such land to that persons to "^ Tf\ I f'&^^ 1 x - .y ^ \:::ysy' vrfiom it originally belonged and ifthat person is dead to his legal hejrs: Provided Ihat if the Gram Sabha fails to restore the possession of such land, it sKall refer the matter to fhe Sub-Divisional Qfficer, who Shall restore the possession ofsueh land witirin tiiree monlhs finm Ihe date ofreceipt ofthe reference. (3) On receipt ofthe infMmation under Sub-section (1), the Sub-Divisional OflBeer shaU make such enquiry as may be deemed necessary about all such transactiims of Iransfer and ifhe finds fhat the member ofabwignal Iribe has been defrauded ofhis legitintate ri^rt he ShaB declare the transaction nuU and void and pass an order revesting Ihe agricultural land in Ihe transferer and, ifhe is dead, in his legal heirs. 1[(3) On receipt ofthe information uader Sub-section (1) the Sub-Divisi<Mial QGBcer diafl make suA enquiry as may necessary about atl such transactions oftrmsfer and if he finds that the member of aboriginal teibe has been defi'auded of his legjtimate rig?it he shall declare the traiuaction nuB and void aad- (a) Where no building ar struchire has been erected <m1fae ^ricultural tend priwto sudi finds pass an order revesting the ^ricultural land in fhe transferer and ifhe be dead, iu his legal heirs, (b) Where any building or structure has been ereeted cn the agrieultural land prior to such finding, he shall fixtheprice ofsuch land in accwdanee with the iMiaeiples laid down for fixatioa of price of land in the Laad Acquisition Art, 1894 (No. 1 of 1894) and order the peison referred to ia Sub- section (I).to pay to the teansferer the difiaenee, if any, between the priee so fixed and the price actually paidtoAe Iransferer: Provided that wAere the building or strueture has been a-eeted aftertfae 1st day ofJanuary, I984lfae provisions of Clause (b) above shall not apply: Provided fiirther that fixation of priee under Clause (b) shall be with referenee to the jmce on Ifae date of registration of flie case befwe tfae Sub-Divisonat Offieer.]" 7. Law is well settled. Sub section (2) of Section 170-B ofthe Code merely uses the word "shall be presumed" and does not indicate that it shall amount to conclusive proofand therefore, it lff" °3 •^K. "'^ f "w" -* does not bar any evidence being adduced for the purpose of disproving it. The presumption under sub section (2) must, fherefore, be regarded as a rebuttable presumption, midin a case goveraed by sub section (2) ofSection 170-B ofthe 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 aulfaority and ifthe SDO is satisfied on the material before him as was produced by llie vendee or received fiom other sources that tiie vendee's possessioa is based on lawfiilauthority, tiie presumprion is rebutted. 8. By applying the above priaciples of law to the fecte of the present case, it is crystal clear that Ihe orders have been passed by the Tribunals without holding any enquiry in terms of sub section (3) of Section 170-B ofthe Code. While inquiring into the matter, tfae SDO must consader the efifect and import ofthe permission under Section 165 (6) ofthe Code granted by the Addl. Collector vide Ex. P/I . It is no doubt troe the auth<mty is entitled to look into efifect and import of such pennission granted by the Addl. Collector to arrive at a fiading whether or not Iransaction is bonafide, buttiiesameEireqi.uredtobeecmsiideredm itsprcipa-peaqxictive. Tha'efiMttftecnda-passedlytecoBtbdowaswdl astyte SEX) arc notinaccoidancewih lawand inlfaeconsklaed opnioa ofte ccurt tiiis is a fit case to be renianded te> the SDO, Sakti, to B) l "v' r 6 \--A conduct an enquiry de novo and pass appropriate order oa Sahu ment. 9. In the result, Ihe writ petition is' allowed and the impugned orders passed by the 6 and 7 respondents are set aside and tiie proceedings are remanded to the SDO, Sakti, with a direction to conduct an enquiiy as envisaged under sub section (3) of section 170-B of the Code and pass appropriate order after issuing notice to the petitioner and after giviag a fair ' opportunily to the petitioner to represent his case. I also pennit the petitioaer as well as tfae respondeat to file additional statements and documents in support of their raspective case. No order asto costs. Sd/- N.K. Agarwal Judge I":