Chattisgarh High Court
Bholanath Joshi (Dead), Through Legal ... vs State Of Chhattisgarh on 5 December, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
2024:CGHC:48084
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved for orders on : 21.08.2024
Order passed on 05.12.2024
WPC No. 2593 of 2023
1 - Bholanath Joshi (Dead), Through Legal Representatives Nill
1.1 - A. Premnath, S/o Bholanath, Aged About 55 Years R/o Village
Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2 - Banmali, S/o Late Sahadev (Died, Wrongly Mentioned In Impugned
Order Through In Memo Of Appeal Name Of Banmali Is Already Deleted)
R/o Village Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2.1 - A. Khemeshwar Joshi S/o Late Banmali, Aged About 59 Years R/o
Village Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2.2 - B. Shiv Kumar Joshi, S/o Late Banmali, Aged About 45 Years R/o
Village Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2.3 - C. Vijay Joshi, S/o Late Banmali, Aged About 43 Years R/o Village
Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2.4 - D. Dinesh Joshi, S/o Late Banmali, Aged About 38 Years R/o Village
Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2.5 - E. Smt. Lachani Panigrahi, D/o Late Banmali, Aged About 40 Years
R/o Village Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
2.6 - F. Smt. Geeta Panigrahi, D/o Late Banmali, Aged About 34 Years R/o
Village Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
3 - Ganesh Prasad, S/o Late Sahadev Aged About 70 Years R/o Village
Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
4 - Radheshwari W/o Bholanath, Aged About 70 Years R/o Village
Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
5 - Vimla Bai, Wd/o Banmali, Aged About 65 Years R/o Village
Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
... Petitioners
versus
1 - State Of Chhattisgarh Through Secretary, Ministry Of Urban Land
Digitally
SHAYNA signed
by Administration, Mahanadi Bhawan, Capital Complex, Naya Raipur
KADRI SHAYNA
KADRI Chhattisgarh.
2
2 - The Commissioner, Through Commissioner, Bastar Division, Jagdalpur
Chhattisgarh.
3 - The Collector, Through Collector District Bastar Chhattisgarh.
4 - The Sub Divisional Officer, (Revenue), District Bastar, Chhattisgarh.
5 - Sonsingh, S/o Bondku, Aged About 69 Years Caste Dhruva And R/o
Village Palli, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
6 - Fagnu, S/o Sukhram, Aged About 59 Years Caste Dhruva And R/o
Village Palli, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
7 - Ramsai, S/o Sonsingh Aged About 52 Years Caste Dhruva And R/o
Village Palli, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
8 - Raghunath, S/o Sonsingh, Aged About 50 Years Caste Dhruva And R/o
Village Palli, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
9 - Goverdhan, S/o Sonsingh, Aged About 48 Years Caste Dhruva And R/o
Village Palli, Tahsil Jagdalpur, District Bastar, Chhattisgarh.
... Respondents
(Cause title is taken from Case Information System) For Petitioners : Mr. B. P. Sharma, Advocate, Mr. M. L. Sakat, Advocate along with Mr. Vaibhav Tiwari, Advocate For State : Mr. Praveen Das, Dy. Advocate General For Resp. No. 5 to 9 : Mr. Manoj Paranjpe, Advocate along with Mr. Siddharth Dubey, Advocate Hon'ble Shri Justice Parth Prateem Sahu CAV Order
1. Petitioners have filed this writ petition challenging legality and sustainability of the order dated 29.05.2023 passed by the Commissioner, Bastar Division Jagdalpur (C.G.) in Revision Case No. 201604950100012/28/A-23/15-16 whereby revision preferred by respondents was allowed and respondent No. 2 - Commissioner set-aside the order passed by Collector (respondent No. 3).
2. Facts relevant for disposal of this petition are that respondent No. 5 to 9 have submitted an application under Section 170-B of Chhattisgarh Land Revenue Code, 1959 (hereinafter referred as the Code of 1959) before Sub-Divisional Officer 3 (Revenue), Jagdalpur (C.G.) seeking reversion of the land description of which are mentioned therein. After receipt of notice, petitioners submitted an objection with regard to maintainability of the application filed under Section 170-B of the Code of 1959 mentioning that provisions under Section 170-B of the Code of 1959 is not applicable to the facts of the case because name of ancestors of petitioners were recorded as owner of land by order dated 13.10.1951 which is prior to the date 02.10.1959. Sub-Divisional Officer, upon considering objection, has dismissed the application filed under Section 170-B of the Code of 1959 vide order dated 22.09.2015 observing that provision under Section 170-B of the Code of 1959 is not attracted. Order of Sub-Divisional Officer was challenged by private respondents in an appeal filed under Section 44 of the Code of 1959 before the Collector- respondent No.3. The Appellate Authority, upon considering submission of respective parties, facts and circumstances of the case, dismissed the appeal affirming order passed by Sub- Divisional Officer observing that provision under Section 170B of the Code of 1959 is not attracted. Order dated 29.02.2016 passed by the Collector was put to challenge in a revision before the Commissioner, Bastar Division Jagdalpur which came to be decided vide order dated 18.06.2019. Respondent No. 2-Commissioner, taking note of the decision in case of Dhamtaria Laxman vs. State of Chhattisgarh and others passed in Review Petition No.204/2013 dated 05.08.2013, 2014 C.G.R.J. 44 and decision in case of Central Bank of 4 India vs. Lalit Agrawal and others, 2014 C.G.R.J. 46 had allowed the revision and set-aside the order dated 29.02.2016 passed by the Collector as also order dated 22.09.2015 of Sub-Divisional Officer and further directed to record names of revisioners therein on the land bearing khasra No. 09, 22, 50 total measuring 16.17 acres. Order dated 18.06.2019 passed by Commissioner - respondent No. 2 was challenged by petitioners herein in writ petition bearing W.P.C. No. 2208 of 2019 which was allowed vide order dated 04.11.2022, observing that in review application filed, judgment of Dhamtaria was found to be erroneous and per incuriam and therefore, impugned order passed by the Commissioner relying upon judgment of Dhamtariya case (supra) is not sustainable. Matter was remitted back to Commissioner to decide revision afresh after affording opportunity of hearing to parties in accordance with law within specified time. After receiving the case back in remand, respondent No. 2 - Commissioner has passed the impugned order.
3. Learned counsel for petitioners would submit that from the documents available on record and contents of order impugned, it is appearing that name of ancestors of petitioners i.e. Shahdev is recorded in revenue records of land in question since 1939-40. He also contended that based on possession of land since 1939-40, name of petitioners were recorded as owner of the land under Madhya Pradesh Krishi Raiyato Aur Kashtkaro (Dwara Visheshadhikaro ke Adheen) Adhiniyam 1950 in the year 1951. He submits that it is not 5 case of private respondents that Shahdev, ancestor of petitioners came in possession of land pursuant to sale of land. Entry of name of ancestor of petitioners in revenue records and further granting rights under the Adhiniyam, 1950 is much prior to the cut off date as provided under the provisions of Section 170-B of the Code of 1959 i.e. 02.10.1959. He contended that applicability of provisions under Section 170-B of Code of 1959 of the entry of the name of non-tribal on the land earlier recorded in name of tribal prior to the 02.10.1959 has been considered by Division Bench of this Court in case of Yadram (Dead) through Lrs. Smt. Yamuna Bai and others vs. State of Chhattisgarh and others reported in (2015) 5 SCC CGLJ 402 (DB). Division Bench of this Court has considered the very issue involved in this case and clearly held that Section 170-B of the Code of 1959 refers to transactions made between 02.10.1959 till 24.10.1980 and case of petitioners is covered with the said judgment. It is also contention of learned counsel for petitioner that Board of Revenue has passed impugned order upon remand. While remanding back the case, this Court in its order dated 04.11.2022 passed in W.P. (C.) No. 2208 of 2024 has held that order passed by Board of Revenue dated 18.06.2019 to be based on Dhamtaria's case which was held per incuriam by this Court, Board of Revenue could not have extended the scope of proceedings before it contrary to the order of remand. In support of his contention he placed reliance upon decision of Hon'ble Supreme Court in case of Shiva Shankar 6 and others H.P Vedavyasa Char, reported in (2023) SCC Online SC 358.
4. Learned counsel for respondents vehemently opposes the submission made by learned counsel for petitioner while supporting impugned order and would submit that respondent No. 2, in its order, has categorically recorded that name of Shahdev Bramhan was recorded in the year 1938 - 39. There is no record of extinguishing rights of Bondku, ancestor of private respondent or there is no documentary evidence of his dispossession but, in the year 1951, pursuant to order of Tahsildar, recording of name of Shahdev Bramhan under the Act of 1950 appears to be suspicious. Under the old law also, land of tribal is not transferable to non-tribal and such transfer can be enquired under the provisions of Section 170-B of the Code of 1959. It is contention that respondents have placed on record revenue entries of Bondku S/o Dhruwa from the year 1932 - 33 till 1937 - 38. It is also contended that one of the revenue entries placed on record showing name of Shahdev S/o Ram Nath of the year 1959 - 60. Under the Central Provinces States Land Tenure Order, 1949 (hereinafter referred as "the Order, 1949) Clause 10 specifically provides that rights in land of raiyat belonging to a tribe which has been declared to be an aboriginal tribal by the Provincial Government by a notification in that behalf for the whole or a part of the area to which this order applies shall not be transferred to a person not belonging to such tribe without permission of a Revenue Officer not below the rank of Deputy 7 Commissioner, given for reason to be recorded in writing. No such document is filed to show that permission was obtained from competent authority for transfer of land subject matter of writ petition. Entry of name of Shahdev is fraudulently made as petitioners are in possession of the land earlier recorded in the name of tribal person and have not notified within two years of the commencement of amendment of the Code, therefore, provision of Section 170-B of the Code of 1959 is clearly applicable to the present case.
5. I have heard learned counsel for the respective parties and also perused the documents placed on record.
6. Undisputedly, facts of the case are that, prior to 1939 - 40, name of Bondku S/o Dhruwa was recorded over the land bearing khasra No. 22, 50 and 09 situated at Village Palli, Pargana, Agarwara, Tahsil Jagdalpur. It is also contents of the order impugned wherein Board of revenue has observed that lands in dispute came to be recorded in the name of Shahdev Brahman in the year 1938 - 39 and further, the land was recorded in the name of Shahdev S/o Ramnath under Madhya Pradesh Agricultural Riyat and Tenants (Acquisition of Privilages) Act, 1950. On 01st December, 1951, copy of the document i.e. declaration under form C is filed by learned counsel for respondent along with covering memo dated 08.07.2024. Application under Section 170-B of the Code of 1959 was filed only in the year 2013 - 14. Provisions under Section 170 - B reads as under :
"170B. Reversion of land of members of aboriginal tribe which was transferred by 8 fraud. -
(1) Every person who on the date of commencement of the Chhattisgarh Land
Revenue Code (Amendment), 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 person 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.
(2-A) If a Gram Sabha in the Scheduled area referred to in clause (1) of Article 244 of the Constitution finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that person to whom it originally belonged and if that person is dead to his legal heirs :
Provided that if the Gram Sabha fails to restore the possession of such land, it shall refer 9 the matter to the Sub-Divisional Officer, who shall restore the possession of such land within three months from the date of receipt of the reference. (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 transferer 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 transferer :
Provided that where the building or 10 structure has been erected after the 1st day of 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."
7. Hon'ble Supreme Court in case of Bhaiji vs. Sub-Divisional Officer, Thandla and others reported in (2003) 1 SCC 692 has also considered the possession as on the cut off date and observed thus :
"8. ..... The purpose of enacting Section 170-B of the Code is very wide. The object sought to be achieved, as its drafting indicates, is to gather and make available all statistics with the State officials so as to find out how much land belonging to aboriginal tribals is in possession of anyone to who it does not belong as on the cut- off date........"
8. Division Bench of this Court had decided the reference made by Single Bench of this Court under Rule 32 (2)(ii) of the High Court of Chhattisgarh Rules, 2007 to the question which reads as under :
"Whether the provision of Section 170-B of the Chhattisgarh Land Revenue Code, 1959 inserted vide M.P. Amendment Act No. 15 of 1980 with effect from 24.12.1980, are applicable in respect of transactions prior to commencement of Chhattisgarh Land Revenue Code, 1959, involving transfer / acquisition of right by a non-tribal over a land which, before such acquisition of title or interest or transfer, 11 belonged to a member of tribe who has been declared to be an aboriginal tribe under sub section (6) of Section 165 of the C.G. Land Revenue Code, 1959?"
9. Division Bench of this Court considering decisions of Hon'ble Supreme Court has observed thus :
"16. Thus, normally, the statutes are applicable only with prospective effect or from the date indicated in it and not with retrospective effect unless specifically provided. In absence of express words or appropriate language from which retrospectivity may be inferred, law takes effect from the date it is issued and not from any prior date. Further, it is to be borne in mind while interpreting a statute that the interpretation given does not create new disabilities or new obligations or new duties in respect of transactions which are complete. If possible, the vested rights should be respected while interpreting a statute.
17. In the present case, law is amended with limited retrospective effect. Plain reading of Section 170-B of the Code as amended covers the transaction made between 2-10- 1959 till 24- 10-1980 and not the transaction made prior to 2- 10-1959. The language of Section 170-B of the Code is plain and unambiguous and it is not permissible to deploy rules of interpretation to attribute any other meaning to the words used by the legislature, that those which naturally flow from it. If the plain words of Section 170-B of the Code are interpreted in such a way as to assign its meaning other than what is written in it, that is, if the Section is read to apply to transactions done prior to 2-10- 1959 despite specific 12 stipulation in the Section that it will apply to transactions done on and after 2-10-1959, then such an interpretation will create new obligations and duties disturbing the vested rights which, normally, should not be done by resorting to interpretation. Therefore, on the face of the plain and unambiguous wordings of Section 170-B of the Code, we are unable to subscribe to any view other than the one that it is restricted in its application to the transactions done between 2- 10-1959 and 24-10- 1980 only.
18. Yet another aspect of the matter is that while deciding Smt. Ramkunwar (supra), the learned Single Judge has not considered the dictum of the coordinate Bench in Parwati Bai (supra). Therefore also, the interpretation accorded to Section 170-B of the Code that it applies to transactions prior to 2-10-1959 in Smt. Ramkunwar (supra) won't be a good law as the same suffers from vice of being a judgment per incuriam as the same has been passed in ignorance of earlier co-ordinate Bench ruling. (See Siddharam Satlingappa Mhetre v. State of Maharashtra and others (2011) 1 SCC 694)."
10. Board of Revenue, while considering case in remand, after setting-aside its order dated 18.06.2019 in W.P.C. No. 2208 of 2019 vide order dated 04.11.2022 has not considered the very issued with regard to order of review passed in Dhamtaria's case which was earlier relied upon by respondent No. 2 for allowing revision and also the decision of Division Bench of this Court in case of Yadram (Supra).
11. Submission made by learned counsel for private respondents based on the Order, 1949 that prior permission of Deputy 13 Commissioner was necessary, is not sustainable as the entry of the name of Shahdev, ancestor of petitioners in revenue record is undisputedly of 1938 - 39 and hence, provision of Rule / Order subsequently made will not apply.
12. As issue with respect to applicability of the provisions of Section 170-B of the Code of 1959 is already been decided by Division Bench of this Court with respect to transfer or acquisition of right by non-tribal over the land belonging to member of tribe will apply only from the commencing of Chhattisgarh Land Revenue Code, 1959 i.e. 02.10.1959 till commencing of Amendment Act 1980 i.e. 24.10.1980, the impugned order passed by respondent No. 2 in the revision holding that acquisition right prior to cut of date 02.10.1959 can be subject matter of enquiry under Section 170 - B of the Code of 1959 is not sustainable.
13. For the foregoing discussion, order dated 29.05.2023 passed by the Commissioner, Bastar Division Jagdalpur (C.G.) in Revision Case No. 201604950100012/28/A-23/15-16 is set- aside Sd/-
(Parth Prateem Sahu) Judge Shayna