Chattisgarh High Court
Rameshwar Prasad vs Son Bai on 17 December, 2024
-1-
2024:CGHC:49862
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order Reserved on 06.09.2024
Order Delivered on 17.12.2024
WPC No. 4940 of 2022
1 - Rameshwar Prasad S/o Narayan Aged About 55 Years Caste
Chandra R/o Village Kalmidhi, Tahsil Jaijaipur, District Janjgir-Champa
(C.G.)
2 - Parmeshwar S/o Narayan Aged About 53 Years Caste Chandra, R/o
Village Kalmidhi, Tahsil Jaijaipur, District Janjgir-Champa (C.G.)
3 - Keshav Prasad Chandra S/o Narayan Aged About 50 Years Caste
Chandra, R/o Village Kalmidhi, Tahsil Jaijaipur, District Janjgir-Champa
(C.G.)
4 - Manishankar S/o Narayan Aged About 48 Years R/o Village Kalmidhi,
Tahsil Jaijaipur, District Janjgir-Champa (C.G.)
... Petitioners
Digitally
signed by
PRAVEEN versus
KUMAR
SINHA
1 - Son Bai Wd/o Late Bharat Lal Aged About 65 Years R/o Village
Kalmidhi, Tahsil Jaijaipur, District Janjgir-Champa (C.G.)
2 - Shankar Lal S/o Late Bharat Lal Aged About 40 Years R/o Village
Kalmidhi, Tahsil Jaijaipur, District Janjgir-Champa (C.G.)
... Respondents
For Petitioners : Mr. Malay Shrivastava, Advocate For Respondent : Mr. Sourabh Sharma, Advocate -2- S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order
1. Petitioner has filed this writ petition challenging the correctness of the order dated 20th September 2022 passed by Commissioner Bilaspur Division, Bilaspur in Appeal Case No.215/A-27/17-18 whereby the Commissioner has set aside the order dated 28.03.2018 passed by the Additional Collector Janjgir Champa as also order dated 09.09.2016 passed by Sub Divisional Officer (R) Sakti, dismissing the application filed by the respondents under Section 170-B of the Land Revenue Code, 1959 (hereinafter referred to as "Code of 1959").
2. Learned counsel for the petitioners would submit that order passed by the Commissioner Bilaspur Division Bilaspur is arbitrary, illegal and without jurisdiction and contrary to law applicable to the facts of the case. The Commissioner Bilaspur Division has not taken into consideration the provision under Section 170-D of the Code of 1959 wherein it is specifically provided that second appeal is barred in a proceeding under Section 170-B of Code of 1959. He contended that when Commissioner has passed order in appeal, he is not having jurisdiction to remand back the case to Sub Divisional Officer (R) for rehearing of the case and passing order afresh. Commissioner erred in observing in the impugned order that Sub Divisional Officer (Original Authority) has not complied with the provision of Section 170-B (3) of the Code of 1959. Commissioner has also not taken into consideration the earlier proceeding filed by father of respondents/applicants Bharatlal where also the Sub -3- Divisional Officer (R) considering the facts and circumstances of the case has observed that the provision under Section 170-B of the Code of 1959 is not attracted. He contended that Sub Divisional Officer (R) in the proceeding dated 13.03.1997 as also order dated 09.09.2016 has recorded that the provision under Section 170-B of the Code of 1959 is not attracted. However, the Commissioner has not considered this issue and by only recording that Sub Divisional Officer (R) has not proceeded in accordance with provision under Section 170-B (3) of the Code of 1959, passed impugned order which is not sustainable.
3. Learned counsel for the respondents vehemently opposes the submission of learned counsel for the petitioners and would submit that order passed by the Commissioner is well reasoned order and calls for no interference. It is based on appreciation of facts and law applicable to the case. He submits that the petitioners failed to show any jurisdictional error in the order impugned. Petitioners have wrongly interpreted the provision of Section 170-B of Code of 1959 and the bar contained therein. Petition is bereft of merits and it be dismissed.
4. I have learned counsel for the parties and also perused the documents enclosed along with writ petition.
5. Perusal of the order dated 13.03.1997 (Annexure P-5) would show that revenue proceeding was filed by Chain Singh. In that proceeding, the land subject matter was of kh.no.711 admeasuring 1.12 acres and it was pleaded in the application that the said land was in possession of Rajeshwar Prasad son of Narayan -4- Chandranahu. Sub Divisional Officer (R) while considering the application recorded that the land subject matter of proceeding was recorded in the name of ancestors of non-applicants i.e. Mahesh Ram son of Surit Ram on 02.10.1959 and accordingly dismissed the application observing that provision under Section 170-B of the Code of 1959 is not attracted. Above case was registered as Case No.228/A/28/96-97. Another case was registered as Case No.283- A/23/1996-97 in the name of Chain Singh Vs. Rameshwar Prasad of the land of Village Kamlidih. In this case land subject matter of proceeding was bearing kh.nos.703/2, 706, 708, 710 admeasuring 0.72, 0.54, 0.60, 6.75 acres respectively. Case was registered under provision of Section 170-B of the Code of 1959. In that proceedings the Sub Divisional Officer (R) in para -2 of its order recorded that statement is recorded, land records with respect to land subject matter of application were called as also report of halka patwari and revenue record of land subject matter is also called for and after considering the entirety of facts and circumstances of case recorded a finding that ancestor of the present possession holder of land were in possession on 02.10.1959 and hence the provision under Section 170-B is not attracted. Subsequent proceedings is filed by Bharat Lal who is stated to be son of Chain Singh against Rameshwar Prasad and it was registered in the year 2013-14. Order was passed on 09.09.2016. Sub Divisional Officer (R) in this proceeding bearing Case No.02-A/23/13-14 has dismissed the application observing that earlier the proceedings was dismissed and further that provision under Section 170-B of the Code of 1959 is not attracted. In appeal preferred under Section 44 (1) of the Code of 1959, Additional -5- Collector Janjgir Champa dismissed the appeal preferred by Bharatlal son of Chain Singh affirming the order of Sub Divisional Officer (R) dismissing the application under Section 170-B to be not maintainable.
6. Perusal of the impugned order Annexure P-1 goes to show that against the order passed in appeal under Section 44 (1) of the Code of 1959, second appeal is preferred under Section 44(2). During course of hearing learned counsel appearing for non-applicant therein raised a ground that second appeal is not maintainable in view of provision under Section 170-D of the Code of 1959 and further that provision under Section 170-B is not attracted. Commissioner while deciding the proceedings, by impugned order, had considered the earlier proceedings with respect to land bearing kh. no.703/2, 706, 708, 710 and 711 and not with respect to other land; it also took note of the fact that prior to coming into force of the Code of 1959, Madhya Pradesh Land Revenue Code, 1954 was in existence and and in the old Act of 1954 also under provision of Section 152 it is specifically provided that if land of tribal person is purchased by any non-tribal than prior permission of the Collector is required; in case at hand, persons who are in possession of the land have made statement that they have purchased the land prior to 1954 however no document is placed on record; Section 170-B proceedings initiated in the year 1996-97 is based on report of Patwari and, arrived at conclusion that Sub Divisional Officer (R) has not considered as to how the name of appellant therein (tribal person) is recorded till 1996-97 and allowed the appeal and remitted back the case to Sub Divisional Officer (R) for deciding the -6- case after following due procedure as provided under Section 170-B (3) of the Code of 1959.
7. The order of Sub Divisional Officer (R) which travelled up to the Commissioner is dated 09.09.2016. That order was passed under the provision of Section 170-B of the Code of 1959. In the said order, Sub Divisional Officer (R) has recorded that based on the relevant document i.e. "adhikar abhilekh" name of Rameshwar and others were recorded. In this proceeding also, Sub Divisional Officer (R) had taken note of earlier proceeding and also considered that provision under Section 170-B is not attracted to the facts of the case and dismissed the application. While passing order in first appeal under Section 44 (1) of the Code of 1959, Collector has also considered that provision under Section 170-B is not attracted and accordingly dismissed the appeal. It further held that there is no error or infirmity in the order of Sub Divisional Officer (R). Before proceeding further I find it appropriate to extract relevant provision of Section 170-B and Section 170-D of the Code of 1959.
"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 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 -7- 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 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 -8- 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 transferor :
Provided that where the building or 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.
170-D. Second appeal barred.-
Notwithstanding anything contained in this Code, no second appeal shall lie against the orders passed on or after the 24th October, 1983 under Section 170-A and Section 170- B."
8. Bare perusal of provision under Section 170-D shows that it bars the second appeal against the order under the provision of Section 170- B of the Code of 1959. Respondents have preferred appeal mentioning the second appeal under Section 44 (2) of the Code of 1959. Case is also registered as Appeal Case No.215/A-27/2017-18. Objection with regard to maintainability is also raised. This objection is not considered and decided by the Commissioner who was hearing the appeal because the case is registered as appeal and there is no discussion in the order that Commissioner is exercising any other jurisdiction than that of second appeal as mentioned in -9- the order itself. The case number is mentioned as Appeal case number.
9. The Appellate Authority and Revisional Authority are required to pass, specific speaking order on all the grounds raised, either in the Appeal, Revision. Commissioner has not decided the very issue raised in reply with respect to maintainability of second appeal in the light of provision under Section 170-D of the Code of 1959. In its order, the Commissioner failed to appreciated and decide the ground raised by speaking order in particular the ground with respect to maintainability of the proceedings under Section 170-B of the Code of 1959.
10. The initial order passed by Sub Divisional Officer (R) on 09.09.2016 clearly recorded that the provision under Section 170-B is not attracted because the name of Rameshwar is recorded since 1954- 55 i.e. prior to coming into force of Chhattisgarh Land Revenue Code 1959.
11. This issue of maintainability of proceedings under Section 170-B of the Code of 1959 where person other than the original tribe is in possession of land prior to 02.10.1959 was already considered and decided by Division Bench of this Court in the 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) wherein the Court has considered the issue of cutoff date in the light of provision as provided under Section 170-B of the Code of 1959. Both the important grounds had escaped consideration and not decided . It is for the authority considering the Appeal or -10- Revision to pass a speaking order on all the grounds raised by the parties.
12. As the two important grounds have not been considered by the Commissioner in its order Annexure P-1 dated 20.09.2022 order is not sustainable and accordingly it is set aside.
13. Case is remitted back to the Court of Commissioner Bilaspur Division Bilaspur for passing order afresh after considering the aforementioned two grounds raised by the respondents therein of maintainability of the second appeal in the light of provision under Section 170-D of the Code of 1959 and further the reason assigned by the Sub Divisional Officer (R) dismissing the application that the provision under Section 170-B is not attracted, taking note of the law laid down by Division Bench of this Court in the case of Yadram (Dead) through Lrs. Smt. Yamuna Bai (supra).
14. The writ petition is accordingly allowed in the manner and to the extent indicated above.
Sd/----/-/---/-/-
(Parth Prateem Sahu) Judge Praveen