•;''.'""".BiH a "^J] 1:.- ..•'•" f's .<\ HIGH COURT OF CHHATTISGARH. BILASPUR Writ Petition No.3972 of 1995 Mahendra Singh and seven others - Versus - Additional Collector, Bilaspur and another Ppst for pronouncement of order on 8 Auaust. 2011 Sd/- T.P.Sharma ^7. A.F.R. HIGH COURT OF CHHATTISGARH. BILASPUR PETITIONERS: Writ Petition No.3972 of 1995 1. Mahendra Singh Son of Pritam Singh 2. Krishnawati W/o Pritam Singh 3. Ajit Singh S/o Pritam Singh 4. Jogendra Singh S/o Pritam Singh 5. Praveer Singh S/o Pritam Singh 6. Rajendra Kaur S/o Pritam Singh 7. Harjumal Singh S/o Pritam Singh All above resident of Goudpara, Bilaspur Tahsil & Distt. Bilaspur. 8. Reman Singh S/o Pritam Singh R/o Gopal Nagar, Raymond Cement, Akaltara. Versys 1. Additional Collector, Bilaspur (MP) (now CG) 2. Mohanlal S/o Ratak Kewat, R/o Manikpur, Tahsil & Distt. Bilaspur (MP) (now CG) {Writ petition under Article 226/227 of the Constitution of India} RESPONDENTS: Present: No.1. Mr. P.P. Sahu, counsel forthe petitioners. Mr. Vinod Kumar Tekam, Panel Lawyer for the State/respondent None present for respondent No.2. No representation is made. Sjnale Bench: Hon'ble IVIr. T.P.Sharma, J ORDER (8-8-2011) 1. By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged legality and propriety of the order dated 31- 8-95 passed by the Additional Collector, Bilaspur in Appeal Case No.72B/121/94-95 reversing the order dated 13-1-87 passed by the Sub Divisional Officer, Bilaspur in Case No.lB/121/82-83, whereby the application filed by Mohanlal - respondent No.2 herein under the provisions of the Chhattisgarh Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharakon Ka Udhar Dene Waton Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (for short 'the Act') has been rejected. While allowing appeal the Additional Collector has declared the transaction as prohibited transaction under theAct. 2. I have heard learned counsel for the parties, perused the petition, copy ofthe order impugned and otherorders. 3. As per case of the parties and the documents, respondent No.2 herein entered into transaction with the petitioners herein and executed document relating to the land in question and thereafter, he filed application before the Sub Divisional officer under the provisions of the Act. After enquiry under Section 6 of the Act, the Sub Divisional Officer has dismissed the application, same was challenged before the Additional Collector and vide order impugned, the Additional Collector, while allowing the appeal, has declared the transaction as prohibited transaction. 4. Learned counsel for the petitioners vehemently argued that as per the order impugned, respondent No.2 Mohanlal was working as public servant i.e. Patwari and during the course of his service, he has entered into transaction of sale and he was having sufficient knowledge of the fact that he is selling the land. Learned counsel further argued that respondent No.2 herein was not holder of agricultural land owned by person belonging to weaker section, the petitioners were not money lenders and the transaction was not prohibited transaction of loan. Initially, after enquiry, the Sub Divisional Officer reached to the conclusion that the Patwari having sufficient knowledge of law was not holderof agricultural land owned by person belonging to weaker section and the transaction was not prohibited transaction and, therefore, the Sub Divisional Officer dismissed the application filed on behalf of respondent No.2 herein but, without considering the aforesaid material, the Additional Collector has allowed the appeal and has declared the transaction as prohibited transaction. Learned counsel also argued that while allowing appeal, the Additional Collector has not considered the aforesaid facts and thereby committed illegality. Learned counsel placed reliance in the matter of Kesharsingh and another v. Bhavsingh and others in which the High Court of Madhya Pradesh has held that in case of transaction much prior to appointed day, onus lay upon vendor to prove that loan subsisted on appointed day, and transaction could not be reopened in absence of clear and cogent evidence. In the course of enquiry, the Sub Divisional Officer is required to follow the principles of natural justice. Learned counsel further placed reliance in the matter of Narayanlal Harkishanlal v. Nathua Kunja and others in which the High Court of Madhya Pradesh has held that while dismissing appeal the appellate Court did not make a speaking order and the order is not sustainable under the law. 5. On the other hand, learned State counsel opposed the petition and submitted that after due enquiry in accordance with the Act the Sub Divisional Officer collected the material, but not passed order in accordance with the material available on record which has been corrected by the Additional Collector by the order impugned. 6. The order impugned reveals that the petitioners are residents of Gondpara, Bilaspur and not residents of Village Manikpur where the property is situate. The petitioners were money lenders and as per the revenue document even after such transaction, possession of respondent No.2 herein has been shown in the revenue record. In case of sale, after selling of the land there was no propriety of continuance of possession of the seller. The transaction was of the year 1970, but the revenue records of 1982 to 1994 reveal possession of respondent No.2 herein. The Act provides complete procedure and finality of the order. 7. While dealing with the question of exclusion of jurisdiction of civil court, the Supreme Court in the matter of Dhulabhai etc. v. State of hfladhya Pradesh and another has laid down the following principles: - (1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. 1 1994M.P.L.J.268 21995M.P.L.J.19 3AIR1969SC78 Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principlesofjudicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra viras cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the ctaim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected. a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. • 8. On examination of present case in the light of aforesaid principles laid down by the Supreme Court, it is clear that complete procedure has been provided in the Act. Jurisdiction of civil court is specifically barred. The provision for examination of legality and propriety of the order passed by the authority has been provided in the law. 9. Material available on record has been rightly considered by the Additional Collector and while allowing appeal the Additional Collector has not committed any illegality requiring any interference in exercise of supervisory jurisdiction. Consequently, the petition is dismissed. No order as to costs. :>oma Sd/- T. P. Sharma Judge