Chattisgarh High Court
Sonsingh vs Bholanath Joshi (Dead) Through Lrs on 24 February, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:9298-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WA No. 136 of 2025
1 - Sonsingh S/o Bondku Aged About 71 Years Caste- Dhruwa, R/o Village-
Palli, Tah.- Jagdalpur District- Bastar, Chhattisgarh
2 - Fagnu S/o Shri Sukhram Aged About 61 Years Caste- Dhruwa, R/o Village-
Palli, Tah.- Jagdalpur District- Bastar, Chhattisgarh
3 - Ramsai S/o Shri Sonsingh Aged About 54 Years Caste- Dhruwa, R/o
Village- Palli, Tah.- Jagdalpur District- Bastar, Chhattisgarh
4 - Raghunath S/o Shri Sonsai Aged About 52 Years Caste- Dhruwa, R/o
Village- Palli, Tah.- Jagdalpur District- Bastar, Chhattisgarh
5 - Govardhan S/o Shri Sonsai Aged About 52 Years Caste- Dhruwa, R/o
Village- Palli, Tah.- Jagdalpur District- Bastar, Chhattisgarh
... Appellants
versus
1 - Bholanath Joshi (Dead) Through Lrs Nil
1.a - Premnath S/o Bholanath Joshi Aged About 55 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
2 - Banmali (Dead) Through Lrs. Nil
2.a - Khemeshwar Joshi S/o Shri Banmali Aged About 59 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
Digitally
signed by
VEDPRAKASH
DEWANGAN
2
2.b - Shiv Kumar Joshi S/o Shri Banmali Aged About 45 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
2.c - Vijay Joshi S/o Shri Banmali Aged About 43 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
2.d - Dinesh Joshi S/o Shri Banmali Aged About 38 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
2.e - Smt. Lachani Panigrahi D/o Shri Banmali Aged About 40 Years R/o
Village Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
2.f - Smt. Geeta Panigrahi D/o Shri Banmali Aged About 34 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
3 - Ganesh Prasad S/o Shri Sahdev Aged About 70 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
4 - Smt. Radheswari W/o Bholanath Aged About 70 Years R/o Village
Kumarwand, Tah.- Jagdalpur, District- Bastar, Chhattisgarh
5 - Vimla Bai Wd/o Banmali Aged About 65 Years R/o Village Kumarwand,
Tah.- Jagdalpur, District- Bastar, Chhattisgarh
6 - State Of Chhattisgarh Through- The Secretary To The Govt. Of
Chhattisgarh Department Of Urban Land Administration Mantralaya Mahanadi
Bhawan, Naya Raipur, Ps- Rakhi, Raipur C.G. (Respondent-1)
7 - The Commissioner Through- The Commissioner Bastar Division, Jagdalpur, Chhattisgarh (Respondent-2) 8 - The Collector Bastar, District- Bastar (C.G.) (Respondent-3) 3 9 - The Sub-Divisional Officer District- Bastar, Chhattisgarh (Respondent-4) (Revenue) ... Respondents (Cause Title taken from Case Information System) For Appellants : Mr. Anurag Dayal Shrivastava, Advocate For Respondents No. 1 to 5 : Mr. B.P. Sharma, Advocate along with Mr. M.L. Saket, Advocate For Respondents/State : Mr. Sangharsh Pandey, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 24/02/2025
1. The present writ appeal has been filed by the writ appellants, who were the respondents No. 5 to 9 in the writ petition, against the impugned order dated 05-12-2024, passed by learned Single Judge in WPC No. 2593 of 2023, whereby the writ petition filed by the writ petitioners is allowed, and the order dated 29-05-2023, passed by the Commissioner, Bastar Division, Jagdalpur, in Revenue Case No. 201604950100012/ 28/A-23/15-16 is set aside.
2. The brief facts of the case, as emerges from the pleadings and documents of the writ petition as well as writ appeal are that the writ petitioners are claiming that they are the owners of the land bearing Khasra No. 9, 22 and 50, area 10.88 acres, 2.14 acres and 3.15 acres respectively (total area 16.17 acres) situated at village Palli, Tahsil Jagdalpur, District Bastar.
4Initially, in the year 1937, one Bondku, son of Dodasu Dhurwa, was in occupation of the said land. However, the predecessors of the writ petitioners, namely Sahadev, son of Ramnath Brahmin, came into occupation of the said land in the year 1938-39. Vide order dated 13-01-1937, passed in Case No. 1/84 of 1936, the predecessors of Bondku, son of Dodasu had divested from their rights and thereafter the predecessors of the writ petitioners were granted possession of the land and their names have been recorded in the land records. Since from the year 1938-39, the names of the predecessors have been recorded and they continued in possession of the land and carrying on the agricultural activities over it.
The respondent No. 5 to 9- Sonsingh, Fagnu, Ramsai, Raghunath and Goverdhan have filed an application under Section 170- B of the Chhattisgarh Land Revenue Code, 1959 (in short 'CGLRC'), before the Sub-Divisional Officer (Revenue), Jagdalpur where the Revenue Case No. 2/A-23/2013-14 was registered and issued notices to the non-applicants/writ petitioners. The non-applicants/writ petitioners have filed their reply to the application of section 170-B of CGLRC and raised objection that their application filed under Section 170-B of CGLRC is not maintainable, as there was no any transaction of the said land between tribal and non-tribal in between the period of 02-10-1959 to 1980. It has also been submitted that the names of the predecessors of the writ petitioners were came in the revenue records in the year 1937 itself.
The Sub-Divisional Officer, after hearing the parties, has 5 dismissed the application filed by the present writ appellants on 22-09-2015 by holding that there is no transaction between tribal and non-tribal in between the period of 02-10-1959 to 1980 and therefore, the provisions of Section 170-B of the CGLRC is not applicable.
The order dated 22-09-2015 passed by the Sub-Divisional Officer was challenged by the present writ appellants by filing the First Appeal under Section 44 of CGLRC before the Collector, Bastar, which has been registered as Revenue Case No. 7/A-23/2015-16. After hearing the parties, the Collector, Bastar has also dismissed the First Appeal filed by the present writ appellants vide its order dated 29-02-2016.
Being agreed by the order dated 29-02-2016, the present writ appellants have filed a revision before the Commissioner, Bastar Division, Jagdalpur, which was registered as Revenue Case No. 28/A- 23/2016-17. The Commissioner, Bastar Division, Jagdalpur, vide its order dated 18-06-2019, allowed the revision and set aside the order passed by the Sub-Divisional Officer (Revenue), Jagdalpur and Collector, Bastar and issued a direction to mutate the name of the present writ appellants in the revenue records of the land in question and to take steps for delivery of possession to them. The said order dated 18-06-2019 was challenged by the writ petitioners before this Court by filing a WPC No. 2208 of 2019. The said writ petition was decided by learned Single Judge of this Court on 04-11-2022 and the order passed by Commissioner, Bastar Division, Jagdalpur was set aside and the matter was remitted back to the Commissioner, Bastar Division, Jagdalpur to decide the revision afresh, after affording 6 opportunity of hearing to the parties in accordance with law within six months from the receipt of the copy of the order.
In compliance of the order dated 04-11-2022, passed in WPC No. 2208 of 2019, the Commissioner, Bastar Division, Jagdalpur has again heard the matter and passed its order on 29-05-2023 by which the Commissioner, Bastar Division, Jagdalpur has allowed the revision and again set aside the orders passed by Sub-Divisional Officer (Revenue), Jagdalpur and Collector, Bastar, which was under challenge in the present writ petition filed by the writ petitioners and they prayed the following prayer in the writ petition:
"10.1 A writ and/ or an order in the nature of appropriate writ do issue calling the records of the court below pertaining to the case of the petitioners for perusal of this Hon'ble Court, if this Hon'ble Court thinks fit in the facts and circumstances of the case. 10.2 A writ and/or an order in the nature of appropriate writ do issue to set aside the impugned order and in effect restoring the well reasoned order dated 29.05.2023 passed by Commissioner, Bastar Division, Jagdalpur (C.G.), Jagdalpur (C.G.) in revision case no. 201604950100012/28/9-23/15-16 in Jagdalpur (C.G.). 10.3 A writ and/or an order in the nature of mandamus do issue directing the respondents for restoration of the possession of the petitioner over the land in question with immediate effect and also appropriate compensation for illegally divesting the petition from the possession of the land and causing loss for all these years as this Hon'ble Court deemed fit in the facts and circumstance of the matter in the interest of justice.
10.4 Cost of the proceedings.7
10.5 Any other writs and directions that may be deemed fit and just in the facts & circumstances of case."
The learned Single Judge, after hearing the parties, passed its order on 15-12-2024, allowed the writ petition and set aside the order passed by the Commissioner Bastar Division, Jagdalpur by holding that, the issue of applicability of Section 170-B of the CGLRC has already been decided by the Division Bench of this Court in the case of Yadram (Dead), through LRs Smt. Yamuna Bai and others v. State of Chhattisgarh and others, 2015 (5) CGLJ 402 that the provisions of Section 170-B of the CGLRC will apply on the transaction between 02- 10-1959 till 24-10-1980. But in the present case, the holding of acquisition of rights is prior to the cut-off date of 02-10-1959. The order passed by learned Single Judge is under challenge in the present writ appeal by the writ appellants.
3. Learned counsel for the writ appellants would submit that the subject lands were owned and possessed by the ancestors of the writ appellants, who belongs to Dhruwa caste and they were primitive tribals of the area. In the year 1932-33, the said lands were recorded in their names. but in the subsequent year, the name of Sahadev was shown in the revenue records. Some part of the land of Khasra No. 9 was recorded in the name of Krishnath.
He would further submit that from the entire pleading of the writ petitioners in the writ petition, there is no mention as to how and under what authority they acquired the land bearing Khasra No. 9, area 10.88 acres in the year 1937-38. The Commissioner has rightly observed that there is no such document of acquisition of the right in favour of the ancestors of the present writ petitioners and the name of Sahadev has 8 been recorded in the revenue records in fraudulent manner.
He would also submit that at the relevant point of time, the provisions of "Bastar State Revenue Manual, 1931" and thereafter "the Central Province States Land Tenure Order, 1949" were in force and as per the prevailing law at that time, the persons who were in possession of the lands were required to pay the land revenue, dues and in failure thereof, the government can dispossess them under the law. It is admitted position that in the year 1932-33, the name of Bondku, son of Dodasu was recorded in the revenue records and he was divested from their rights in Case No. 1/84 of 1936, vide order dated 13-01-1937. Neither the said order dated 13-01-1937 passed in Case No. 1/84 of 1936 was brought on record nor any authority in favour of Sahadev prior to 1959 was produced to show that Sahadev has acquired right over the land in question.
He would also submit that the name of Krishnath was shown over the part of the land Khasra No. 9, area 1.57 acre, out of 10.88 acres as 'Maafidar' but the entire area of 10.88 acres was transferred in the name of Sahadev in the year 1937-38. He would further submit that the learned Single Judge has failed to appreciate the provisions of Section 29 of Revenue Circular No. 1 of Bastar State Revenue Manual, 1931. In absence of any legal document or authority with respect to the acquisition of land in favour of Sahadev, the present writ appellants cannot be dispossessed from the land in question.
It is further submitted by him that the writ petitioners have pleaded that Dhruwa caste has been included in the list of aboriginal 9 tribes vide amendment to the compilation of State Province Land Tenure Order, 1949, with effect from the date of publication of notification and therefore prior to the notification, Dhruwa caste cannot be considered to be aboriginal tribes and in the present case it was a transaction between aboriginal tribe and non-aboriginal tribals. It does not mean that the tribes who were declared as aboriginal tribes under the said notification were not tribes prior to that notification and they should be considered as non-aboriginal tribe. The persons belonging to Dhruwa community were primitive tribes of Bastar and they cannot be considered to be non-aboriginal tribes.
It is next submitted by him that the learned Single Judge has erred in considering the provisions of the Madhya Pradesh Agricultural Raiyats and Tenants (Acquisition of Privileges) Act, 1950. Once the writ petitioners have claimed that they acquired the Bhumiswami rights in the year 1937-38, there was no such occasion to get their declaration of right under Act of 1950 again and even otherwise there is no such document brought on record by the writ petitioners. It is also submitted that the learned Single Judge has failed to appreciate that the present dispute is squarely covered by Section 170-B of the CGLRC and the matter pertains to fraudulent entries recorded in the name of Sahadev over the land of the ancestors of the present writ appellants. The Commissioner, Bastar Division, Jagdalpur, after going through the entire records, rightly decided the case and came to the conclusion that the name of Sahadev is illegally recorded in the revenue records in place of Bondku. The word 'possession' engrafted in the provisions of Section 170-B of CGLRC cannot be replaced from the word transaction. 10
From the provisions of Section 170-B of CGLRC, it is quite vivid that any person, who is in possession of the land belonging to aboriginal tribe on the date between the period commencing on 02-10- 1959 and ending on the date of commencement of Amendment Act of 1980, was required to notify to Sub-Divisional Officer in the prescribed format, all the information as to how he has came in possession of such land. Therefore, the transaction becomes immaterial and the possession is material, therefore, the dispute between the parties squarely comes under the provisions of Section 170-B of CGLRC. Therefore, the impugned order passed by learned Single Judge suffers with perversity and illegality, which is liable to be set aside.
4. On the other hand, learned counsel for the respondents No. 1 to 5 on advance copy appeared and submitted that learned Single Judge, after appreciating the entire facts and circumstances of the case as well as law applicable to it, passed the order which is absolutely justified and based on proper appreciation of the material available in the writ petition. The name of Sahadev came in the revenue record in the year 1937, which is much prior to the date of coming into force of CGLRC, 1959. There should be a transaction in between the period of commencement of the CGLRC i.e. 02-10-1959 to the date of amendment i.e. 24-10-1980 are to be considered for its inquiry. Any transaction prior to the date of commencement of the CGLRC, 1959 i.e. 02-10-1959, it would not come under the purview of the suspected transaction. In the present case, the alleged transaction is of the year 1937, which admittedly does not come under the suspected transaction and since then the present writ petitioners are in possession of the 11 subject land.
He would further submit that since Bondku has made defaults and his rights has been divested from the land and said land and rights were granted by the State Authorities to the petitioners in the form of Morushi Kashtakar (occupancy tenant) and which subsequently converted into Bhumiswami Rights. Since the provisions of Section 170- B of the CGLRC is not applicable in the present case, there is no need to go into merits or other consideration in the case. As the application of the present writ appellants itself was not maintainable before the Sub- Divisional Officer and therefore, the order passed by learned Single Judge is absolutely justified and the writ appeal is liable to be dismissed.
5. We have heard learned counsel for the parties and perused the material annexed with the writ petition as well as the writ appeal.
6. The fact that prior to 1937-1938, the name of Bondku Dhurwa was recorded over the subject land of Khasra No. 9, 22 and 50, total area 16.17 acres situated at village Palli, Tahsil Jagdalpur, Bastar Riyasat is not disputed by the parties. It is also not disputed that the name of Sahadev came in the revenue record over the said land after 1937-38, and his name was recorded under the Madhya Pradesh Agricultural Raiyats and Tenants (Acquisition of Privileges) Act, 1950 on 01-12- 1951. The writ appellants have filed their application under Section 170- B of CGLRC before the Sub-Divisional Officer (Revenue), Jagdalpur in the year 2013-14 for reversion of the land.
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7. So, far as the applicability of provisions of Section 170-B of the CGLRC in the present case is concerned, the person who came into possession of the land of aboriginal tribe in between 02-10-1959 to the commencement of the Amendment Act of 1980, shall notify to the Sub- Divisional Officer all the information, as to how he has come into possession of such land. Section 170-B(1) of CGLRC is reproduced herein below for the sake of convenience :
"[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), 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."
8. The co-ordinate Bench of this Court in the matter of Yadram (Dead), through LRs Smt. Yamuna Bai and others v. State of Chhattisgarh and others, 2015 (5) CGLJ 402 has held that the writ petitioners are in possession of the land in dispute prior to the commencement of the provisions of Section 170-B of the Code i.e. before 02-10-1959, the provisions of Section 170-B of the CGLRC are not applicable in the 13 case. In Para 17, 18 and 19 of the said Yadram's case (supra), the co- ordinate Bench of this Court has held that:
"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 legisla-ture, 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 stipulation in the Section that it will apply to transac-tions done on and after 2-10-1959, then such an interpretation will create new obligations and duties disturb-ing 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 14 coordinate Bench in Parwati Bai (supra). Therefore also, the in-terpretation 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 2011 1 SCC 694).
19. In view of the legal opinion we have formed regarding the applicability of Section 170-B of the Code, we answer the question referred that the provisions of Section 170-B of the Code and Act No. 15 of 1980 (with effect from 24-10-1980) will apply in respect of transaction involving transfer/acquisition of right by a non-tribal over a land, before such acquisition of title or interest or transfer, belonged to member of tribe who has been declared to be an aboriginal under sub-section (6) of Section 165 of the Code from the commence-ment of the Chhattisgarh Land Revenue Code, 1959 i.e 2-10-1959 till commencement of the Amendment Act, 1980 ie 24-10-1980."
9. The learned Single Judge has also considered the order dated 27-01-2015, passed in Review Petition No. 204 of 2013 by co-ordinate Bench of this Court in case of Dhamtaria @ Laxman and others v. State of Chhattisgarh and others and observed in Para 10 of its order that the Commissioner, Bastar division, Jagdalpur while considering the case after its remand, has not considered the order passed in 15 Dhamtaria's case in a review petition and also the Yadram's case. However, the Yadram's case (supra) is governing the field that the transaction prior to 02-10-1959 is not covered under the provisions of Section 170-B of the CGLRC. In the present case also admittedly the ancestors of the writ petitioners are in possession since 1937-38, which is much prior to 02-10-1959 and therefore, the provisions of Section 170-B of CGLRC is not applicable in the present case.
10. Since the provisions of Section 170-B of CGLRC is not applicable in the present case, there is no need to further discuss the inclusion of the caste Dhurwa in the list of aboriginal tribe vide amendment to the compilation of State Province Land Tenure Order, 1949 with effect from the date of publication of notification.
11. Further, the said inclusion of Dhurwa in the list of aboriginal tribe is not having much significance in the case, in light of the judgment passed by Hon'ble Supreme Court in the matter of Bhaiji v. Sub-Divisional Officer Thandla and others, (2003) 1 SCC 692, in which the Hon'ble Supreme Court has held that the transactions of transfer by a member of an aboriginal tribe in favour of a member of an aboriginal, not belonging to aboriginal tribe. There was no exception enacted by the legislature to exclude the transactions from the purview of Section 170-B of the MPLRC between two persons, both of whom are members of aboriginal tribes. In Para 8 of its judgment, the Hon'ble Supreme Court has held that:
"8. It is well known that some of the aboriginal tribes are nomadic and some indulge into crimes traditionally and 16 historically. The purpose of settling land with the tribals mostly which is done at very concessional rates and at times even without involving an obligation to pay the land revenue, is so done with a view to see that the aboriginals settle at one place abandoning nomadism and picking up tilling the soil as their vocation by settling at one place and earning livelihood by labour and toil. It is also well known that creamy layers have developed and even as amongst socially unprivileged some have acquired affluence. An affluent shrewd tribal may indulge into exploiting his fellow beings. Possibility cannot be ruled out where a non- tribal may manage to have land transferred apparently but not in reality in the name of a tribal and taking advantage of his status, affluence or any other means, conferring him with capacity to exploit, may till the land to his own advantage depriving the aboriginal tribal from the benefits of the land settled by the State with him. All such cases are taken care of by Section 170-B.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 whom it does not belong as on the cut off date. The information having been collected the enquiry under sub-Section (3) shall be directed towards finding out the nature of transaction resulting into transfer of land ___ whether such transaction of transfer has resulted in the aboriginal tribal having been defrauded of his legitimate right in the land? Sub- Sections (1), (2) and (3), as enacted in 1980, have to be read as part of one whole scheme. If the submission of Shri Gambhir is correct then the object of enquiry under sub-Section (3) would have been to find out if such transaction of transfer has resulted in an aboriginal tribal having been defrauded of his legitimate 17 right by person not belonging to aboriginal tribe. But that is not so. Nowhere in the entire scheme of sub-Sections (1), (2) and (3) of Section 170-B, as enacted in 1980, there is the least indication of confining the applicability of the provision to such transactions of transfer as were entered into by a member of aboriginal tribe in favour of a member not belonging to aboriginal tribe. No exception has been enacted by the Legislature so as to exclude from the purview of Section 170-B transactions of transfer between two persons both of whom are members of aboriginal tribes. Had it been so, the Legislature would have specifically said so. The language of the Section as drafted in 1980 is clear and unambiguous and does not admit of any doubt so far as this aspect is concerned."
12. While considering the case, the learned Single Judge has adverted all the facts and circumstances of the case as well as law applicable to it and passed its order allowing the writ petition and setting aside the order dated 29-05-2023, passed by Commissioner, Bastar division, Jagdalpur, which in the opinion of this Court, is based on proper appreciation of the material placed in the writ petition by the parties, and we do not find any illegality or infirmity in it.
13. Upon perusing the impugned order, we noticed that the same has been rendered by the learned Single Judge with cogent and justifiable reasons. In an intra-court appeal, no interference is usually warranted unless palpable infirmities are noticed. Learned Single Judge while dismissing the writ petition by the impugned order has adverted to all the facts of the case. We do not find any fault in the impugned order passed by the learned Single Judge.
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14. In view of the foregoing, the writ appeal lacks merit, liable to be and is hereby dismissed. No order as to costs.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved