Madhya Pradesh High Court
Yashwant Raj Singh vs Board Of Revenue And Ors. on 9 October, 1998
Equivalent citations: 1999(1)MPLJ379, 1999 A I H C 4209, (1999) 1 MPLJ 379
ORDER S.K. Kulshreshtha, J.
1. This writ petition and the Writ Petitions Nos. 5372/97, 5373/97, 5374/97, 5376/97, 5377/97 and 5379/97 have been filed against the common order dated 30th of October, 1995, passed by the Board of Revenue in Civil Revision Nos. 177, 178, 179, 180, 181, 182, 193, 194 and 195-2/92, by which the Board of Revenue has set aside the order passed by the S.D.O. as affirmed by the Collector and the Commissioner holding that the petitioners were 'Gond' and as such were entitled to maintain an application under the provisions of Sections 170A and 170B of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the 'Code'), for violation of the provision of sub- section (6) of Section 165 thereof.
2. The writ petitioner along with Smt. Shakuntala Devi, Bhoopat Raj Singh and Nar Hari Raj Singh (respondents 6, 7 and 8) are residents of village Tarapur, Tehsil and District Raigarh and claim to be agriculturists having acquired the lands from their ancestors. They filed an application Annexure-P/1 before the Sub-Divisional Officer, Raigarh, under the provisions of Sections 170-A and 170-B of the Code on allegations that they were deprived of their legitimate rights by the respondents 3, 4 and 5 who had got fictitious sale- deeds executed in violation of the provision of Section 165(6) of the Code. After service of the notice of the application, the contesting respondents raised a preliminary objection regarding maintainability of the proceedings under Sections 170-A and 170-B of the Code, inter alia, on the ground that the applicants were not members of any aboriginal tribe within the meaning of Section 165(6) of the Code as they were "Raj Gond" which was not a notified aboriginal tribe. The preliminary objection was overruled by the Sub-Divisional Officer, against which the appeal filed by the contesting respondents before the Collector as also revision before the Commissioner was dismissed and it was held that 'Raj Gond' were basically 'Gond' and as such the petitioner belonged to a notified aboriginal tribe. The matter was carried further in a Revision before the Board of Revenue against the order of the Commissioner and the Board of Revenue by the impugned order dated 30th of October, 1995 (Annexure-P/3) took the view that the applicants before the S.D.O. being 'Raj Gond' were not members of the 'Gond' tribe notified under Section 165(6) of the Code and were, therefore, not entitled to maintain any proceeding under Sections 170-A and 170-B in respect of the transaction alleged to be in violation of Section 165(6) of the Code. In view of the order of the Board of Revenue, the Sub-Divisional Officer, Raigarh, vide order Annexure-P/4, dismissed the application. The petitioners have, therefore, challenged the order of the Board (Annexure-P/3) and the consequent dismissal of their application vide Annexure-P/4, to the petition on the ground that 'Raj Gond' were also members of the 'Gond' tribe and the Board failed to decide the issue correctly.
3. The respondents 3 to 8 have filed their Return in W.P. No. 5371/1998 in which it has been pointed out that the Notification declaring the aboriginal tribes under Section 165(6) does not include 'Raj Gond' as a sub-caste of the Scheduled tribe in the State of Madhya Pradesh. To point out the distinction, it has been averred that while in the State of Maharashtra 'Gond', 'Raj Gond' and 'Raj' have all been declared Scheduled Tribes, but 'Raj Gond' though a tribe in M.P. has not been included as a Scheduled Tribe in Madhya Pradesh. It has also been pointed out that since this matter can be decided only on the basis of evidence, the petition under Articles 226 and 227 cannot be entertained. It is, therefore, averred that it was open to the petitioners to have first obtained a declaration of being members of an aboriginal tribe from the Civil Court before proceeding to file any application under Sections 170-A and 170-B of the Code. It has also been pointed out by the contesting respondents that 'Raj Gond' have acquired the prefix 'Raj' because they were associated with the Royal family of Raigarh, for whom the benefit of the provision contained in sub-section (6) of Section 165 of the Code was never intended.
4. All the petitions were heard analogously and submissions were made on the basis of the pleadings in W.P. No. 5371/1998. All these petitions are, therefore, being decided by this common order.
5. Learned counsel for the petitioner has referred to Section 165(6) of the Code and the Notification dated 25-11-1960 as amended vide notification dated 15-11-1967, to point out that 'Gond' has been declared as an aboriginal tribe and 'Raj' is mentioned as one of its sub-caste included in the said Tribe. Learned counsel has pointed out that some of the sub-castes came to be known by their occupation such as 'Raj' meaning 'mason' but since they belonged to 'Gond' tribe, they were duly shown as such. He further pointed out that mere acquisition of prefix on account of association with the Royal family or becoming themselves the Rulers, did not cause any cessation of their belonging to the Gond Tribe for whom the benefit of Section 165(6) of the Code was intended and, therefore, the Board of Revenue erred in construing the provisions narrowly without appreciating its true import and meaning. Learned Dy. A.G. and the learned counsel for the contesting respondents have, however, contended to the contrary and have stated that in the Notification, since 'Raj' has been mentioned as 'Gond', 'Raj Gond' cannot be treated to be a sub-caste of 'Gond' otherwise, the notification, comprehensive as it is, would have stated so. Since the controversy devolves around the construction of the notification issued under Section 165(6) and the benevolent provisions contained in Sections 170-A and 170-B of the Code flowing from the provisions of Section 165(6), these provisions are reproduced hereunder for proper appraisal of the rival submissions made by the parties.
"Section 165(6) Notwithstanding anything contained in sub-section (1) the right of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf, for the whole or part of the area to which this Code applies shall -
(i) in such areas as are predominately inhabited by aboriginal tribes and from such date as the State Government may, by notification, specify, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe in the area specified in the notification;
(ii) in areas other than those specified in the notification under clause (i), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing."
"Section 170-A. Certain transfer to he set aside. - (1) Notwithstanding anything contained in the Limitation Act, 1963 (No. 36 of 1963), the Sub-Divisional Officer may, on his own motion or on an application made by a transferor of agricultural land belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 on or before the 31st December, 1978, enquire into a transfer effected by way of sale, or in pursuance of a decree of a court of such land to a person not belonging to such tribe or transfer effected by way of accrual of right of occupancy tenant under Section 169 or of Bhumiswami under sub-section (2-A) of Section 190 at any time during the period commencing on the 2nd October, 1959 and ending on the date of commencement of the Madhya Pradesh Land Revenue Code (Third Amendment) Act, 1976 to satisfy himself as to the bona fide nature of such transfer.
(2) If the Sub-Divisional Officer on an enquiry and after giving a reasonable opportunity to the persons owning any interest in such land, is satisfied that such transfer was not bona fide, he may notwithstanding anything contained in this Code or any other enactment for the time in force - (a) subject to the provisions of clause (b), set aside such transfer if made by a holder belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 and restore the land to the transferor; or
(a) subject to the provisions of clause (b), set aside such transfer if made by holder belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of Section 165 and (restore the land to the transferor by putting him in possession of the land forthwith); or
(b) where such land has been diverted for non-agricultural purposes, he shall fix the price of such land which it would have fetched at the time of transfer and order the transferee to pay the difference, if any, between the price so fixed and the price actually paid to the transferor within a period of six months."
"Section 170-B. Reversion of land of members of aboriginal tribe which was transferred by fraud. - (1) 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 sub-section (6) of Section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within (two years) of such commencement, notify to the Sub-Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land.
(2) If any persons fails to notify the information as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the 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 if that person be dead, to his legal heirs.
(3) On receipt of the information under sub-section (1), the Sub- Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order revesting the agricultural land in the transferor and, if he is dead, in his legal heirs.
3. On receipt of the information under sub-section (1) the Sub- Divisional Officer shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and -
(a) Where no building or structure has been erected on the agricultural land prior to such finding pass an order revesting the agricultural land in the transferor and if he be dead, in his legal heirs.
(b) Where any building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 (No. 1 of 1894) and order the person referred to in sub-section (1) to pay to the transferor the difference, if any, between the price so fixed and the price actually paid to the transferor:
Provided that where the building or structure has been erected after the 1st day or January, 1984 the provisions of clause (b) above shall not apply:
Provided further that fixation of price under clause (b) shall be with reference to the price on the date of registration of the case before the Sub-Divisional Officer."
6. A bare perusal of the provision in sub-section (6) of Section 165 clearly manifests that the benefit is intended for a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf. Notification would imply a notification published in the Gazette as laid down in Section 2(25) of the "M.P. General Clauses Act, 1957. Likewise, words used in sub-section (6) of Section 165 as also in Sections 170-A and 170-B of the Code are "Tribe" and "aboriginal tribe" which do not imply Scheduled Tribe as under Article 342 of the Constitution of India. Thus, the requirement of Section 165(6) is that the person should be a member of a tribe which by a notification published in the Official Gazette has been declared to be an "aboriginal tribe". The learned member of the Board of Revenue has taken into account the provision made in the memo dated 9-2-1987 issued by the General Administration Department of the Government of Madhya Pradesh of which a copy has been filed by the petitioner as Annexure P/6, in order to come to a conclusion that the requirement laid down in the said memo indicates that "Raj Gond" have not been included in the tribe 'Gond'. A perusal of the memo dated 9-2-1987 (Annexure-P/6) indicates that Executive Instructions were issued in the nature of a clarification about 'Raj Gond' and Raj Caste/Sub-Caste and it was pointed out that the Government of India had clarified that while issuing certificate that a person belongs to a Scheduled Tribe, it should be clearly mentioned that the Caste to which he belongs is 'Raj (Gond)'. On the basis of these executive instructions, the learned member has come to the conclusion that 'Raj Gond' is not a Sub-Caste of 'Gond' and has set aside the order of the S.D.O. and of the Collector and the Commissioner in appeal and revision. As observed above, it is only by a notification that tribe can be declared as an aboriginal tribe and, therefore, any executive instruction such as the memo dated 9-2-1987 (Annexure-P/6) will not prevail over the provisions made in the notification. The notification issued in this behalf under Section 165(6) provides as follows :-
'' 13. Notifications. - (1) Aboriginal Tribes specified - In exercise of the powers conferred by sub-section (6) of Section 165 of the Code, the State Government has declared the tribes specified in the Schedule below to be aboriginal tribes for the whole of the area to which the said Code applies :-
15. Gond, including -
Arakh or Arrakh, Agaria, Asur, Badi Maria of Bada Maria, Bhatola, Bhimma, Bhuta, Koibhuta or Koilabhuti, Bhar, Bisonhora Maria, Chota Maria, Dandami Maria, Dhuru or Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta or Gatti, Gaita, Gond-Gowari, Hill Maria, Kandra, Kalanga Khatola, Koitar, Koya, Khirwar or Khirwara, Kucha-Maria, Kucha Maria, Kuchki Maria, Madia (Maria), Mana, Mannowar, Moghya or Mogia Monghya, Mogiyar, Mundia (Muria), Nagarchi, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia or Thotya, Wada Maria or Vada Maria, Daroi."
7. It is, therefore, to be seen whether 'Raj Gond' are covered by Entry 15 appearing under the Notification or not. Learned counsel for the petitioner has referred to the decision of this Court in Mira Devi Gopal Saran Singh and Ors. v. Aman Kumari Jagdish Prashad Singh, 1962 MPIJ 248 in support of his contention that although 'Raj Gonds' have adopted the Hindu Law for some purposes, they have not thereby become Hindus and, therefore, it cannot be said that they have ceased to be the members of the said aboriginal tribe. Paragraph 17 of the said Judgment reads as follows :-
"17. The position of Raj Gonds' has been considered by this High Court in Rajah Chattar Singh v. Diwan Roshan Singh (1946 NIJ 690). The Court observed :
"The distinction between a Hindu and a person who is subject to Hindu Law is at times apt to be blurred but the distinction is there. The Gonds have, as is well-known, adopted in the course of time-whether for reasons of propinquity or snobbery-several Hindu usages and customs, but this does not make them Hindus either in the ethnological or complete theological sense." The Court then concluded that Gonds are not Hindus and proceeded to consider the contention that Raj Gonds which are a branch of the Gonds had become Hindus. On a review of the authorities, their Lordships repelled the contention holding that Raj Gonds were not Hindus. In Dashrat Prasad v. Lalloo Singh (1951 NLJ 616), Bose, J. (as he then was) laid down that "Raj Gonds are not Hindus but the presumption is that they are governed by Hindu Law unless contrary is shown". It is clear from these decisions that although Raj Gonds have adopted the Hindu Law for some purposes, they have not thereby become Hindus. The adoption of a particular law is different from changing faith."
8. The learned counsel has also referred to a passage appearing on page 63 of the Book "Tribes and Castes of the Central Provinces of India" by R. V. Russell, Vol. Ill by Cosmo Publications, Delhi, that among the Gonds proper there are two aristocratic sub-divisions, the Raj-Gonds and Khatolas. The relevant portion reads as follows :-
"Among the Gonds proper there are two aristocratic sub-divisions, the Raj-Gonds and Khatolas. According to Forsyth the Raj-Gonds are in many cases the descendants of alliances between Rajput adventurers and Gonds. But the term practically comprises the landholding sub- division of the Gonds, and any proprietor who was willing to pay for the privilege could probably get his family admitted into the Raj-Gond group. The Raj-Gonds rank with the Hindu cultivating castes, and Brahmans will take water from them. They sometimes wear the sacred thread. In the Telugu country the Raj-Gond is known as Durla or Durlasattam. In some localities Raj-Gonds will intermarry with ordinary Gonds, but not in others."
9. In the Gazetter of India Madhya Pradesh, Raigarh District, 'Gonds' have been stated to be the third largest tribal group in the District and it is stated that the entire bulk of the 'Gond' population returned under Hindu religion and principally speak Hindi and Chhattisgarhi. The description appearing on Page 85 reads as follows :-
"The third largest tribal group in the District is that of Gonds, who along with their 40 sub-tribes, numbered 68,630 (33,776 males and 34,854 females) according to Census, 1961. Since 1931, when their population in the District was 48,821, an increase of 39.3 per cent during the span of 30 years was registered. Largest concentration of Gond population was in rural areas of Udaipur Tahsil (20,551), followed by Gharghoda (17,149) and Jashpur (12,924). With about 59 percent forming the working-force, the Gonds were overwhelmingly dependent on cultivation for their livelihood. In urban areas, 'other services' attracted them most.
Gonds of Jashpur, particularly in Chetba and Chirora Villages are largely immigrants from the erstwhile Phuljhar Zamindari in Raipur District. The six classes in which they are divided are Maharaj Gonds, Raj Gonds, Pachasi Gond, Badi Gonds, Thukel Gonds, and Dhokhar Gonds. The first three of these were considered superior to other Badi Gonds are professional tattooers. Thukel and Dhokar Gonds deal in cattle, and also do tattooing work. Marpachi, gaghat or goha, kana, bagh, maria, and Baisia are six exogamous steps found in Jashpur. Employment of Brahman in marriage indicates Hinduizing tendencies. Some of these Gonds wear the sacred thread also. The Census 1931 records the existence of separate bachelors' quarters for boys and girls in each village.
Educationally a little more enlightened, the Gonds had in 1961 the largest number of matriculates among them, i.e. 15. About 1,567 persons were having primary school qualifications.
The entire bulk of the Gond population returned under Hindu religion. They principally speak Hindi (57,076) and Chhattisgarhi (4,356). Large section of their population is bilingual, speaking various dialects in vogue in the District. Laria or the eastern Chhattisgarhi is the vernacular restricted to the adjoining areas of this District and Sambalpur district in Orissa State.
Among the Gonds, marriage between the bhaiband is tabooed. Preferential marriage with cross-cousins (dudhlautana) is widely practised. With the growing contact with the Hindus, the Gond Marriage today is not merely a matter of personal choice or a private affair between the two individuals, it is equally the concern of the family, and the village community. Polygamy is permitted by Gonds. Burial of the dead had been the general custom in the past, but cremation is now becoming a common practice. The village Gods are now generally common to Gonds and Hindus.
Besides the common Gods, Gonds also have their special Gods. These are sometimes kept in a deokhulla."
10. From the description of the 'Gonds' by Russell, it is revealed that 'Raj Gonds' are basically Gonds belonging to one of the two aristocratic sub-divisions, the other being Khatolas and the term practically connotes the landholding sub-division of the Gonds, and any proprietor who was willing to pay for the privilege could probably get his family admitted into the Raj-Gond group. In some localities Raj-Gonds will intermarry with ordinary Gonds. From the said description, it is clear that the word "Raj" applied to the Caste Gond is merely used as a prefix to indicate the affluence acquired either by association with the ruling class or by other acquisitions. The prefix is more in the nature of a title to distinguish a 'Raj Gond' from 'Gond' only with a view to indicate that he holds a status of eminence or belongs to the affluent category of the members of the tribe. The learned counsel for the respondents has, however, endeavoured to make a distinction by pointing out by reference to the notification Annexure-R/5-2 that wherever the intention is to indicate 'Raj Gond' along with 'Gond', it is clearly specified as in the case of Constitution (Scheduled Tribes) Order, 1950 which indicates 'Raj Gond' at Serial No. 18 as member of the Scheduled Tribes along with Gond in the State of Maharashtra. It has already been observed that the word used in the Section 165(6) of the Code is "Tribe" and the notification necessary thereunder is for the purposes of declaring a tribe as an aboriginal tribe. Whether or not such tribe is included as a Scheduled Tribe is immaterial. The only controversy between the parties is whether the petitioners who are 'Raj Gonds' are members of aboriginal tribe Gond as per the Entry at Sr. No. 15 of the notifications under Section 165(6). Although the petitioners claimed to be 'Gonds' in their applications under Sections 170-A and 170-B, for the purposes of this decision, it is assumed as not disputed that they are 'Raj Gonds'. The core question is whether merely by use of a prefix 'Raj' to distinguish themselves as more affluent members of the community, can a cessation of the membership of the tribe be inferred without there being anything more to suggest that an altogether new community distinct from the Gond tribe had come into being. The word 'Tribe' is intended to cover the whole group of people belonging to the said tribe and no cessation can be inferred merely because persons of ruling class or associated with such class or as land holders started describing themselves as 'Raj Gonds' using the word 'Raj' as a title rather than indicating any tribe distinct from 'Gond'.
11. Here an ancillary argument of the learned counsel for the respondents 3 to 8 also deserves a mention. Learned counsel has submitted that since it is a matter which can be decided on the basis of the evidence, it cannot be considered in a writ petition. Both the parties have proceeded on the ground that the petitioner and the respondents who were applicants before the S.D.O. are 'Raj Gonds' which leaves no room for any triable issue as to whether or not they are 'Raj Gonds' or 'Gonds'. The question that has arisen is only whether the petitioners as 'Raj Gonds' belong to Gond tribe which is covered by the notification in question. In the notification, sub-caste 'Raj' has been mentioned only to identify such persons of the tribe who are known by their occupation. 'Raj Gonds', as clear from the discussion above, are 'Gonds' who use the prefix 'Raj' to boast of a particular status. It does not, however, alter their lineage. In this view of the matter, the order of the Board of Revenue (Annexure-P/3) and the consequent order Annexure-P/4 passed by the S.D.O. cannot be sustained. They are, accordingly, quashed. The S.D.O. shall now proceed with the cases in accordance with law.
12. Accordingly, the petitions are allowed. The parties shall, however, bear their own costs.