Allowed

Tribhuvan Lal Sahu v. the State of Chhattisgarh and Ors.

Chhattisgarh HC7 Mar 2011WP/1420/2002

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging orders passed under Section 170-B of the Land Revenue Code 1959 regarding land transferring back to tribe members. The Court held that lower authorities violated statutory procedure by failing to conduct an enquiry and giving the petitioner a fair hearing opportunity before reverting the land.

What did the court decide?

Impugned orders set aside; proceedings remanded to SDO Dhamtari to conduct enquiry de novo, issue notice to petitioner, and pass appropriate order after fair hearing.

Tribhuvan Lal Sahu Vs the State of… — Writ and Judicial Review | Chhattisgarh HC (2011)

¶1

0’? \g?

¶2

IN THE HIGH COURT OF JUDICATUiiE AT BILASPUR W.P. No.^{? ‘12%{2002}

¶3

TRIBHUVAN LAL SON OF AMAN SINGH SAHU, GRAM^— BAGDEHI, TAHSIL-DHAMTARI, DISTT— DHAMTARI.

¶4

PETITIONER

¶5

VERSUS

¶6

f, - K.r}1/”/^/ STATE OF CHHATTISGARH THROUGH THE COLLECTOR, DHAMTARI.

¶7

RESPONDENTS

¶8

SMT. GAURI BAI WIDOW OF GANESH SINGH ’ GOND HEMSINGH SON OF LATE GANESH SINGH GOND . KU. MADHUBAI DAUGHTER OF GANESH SINGH GOND v.^R- ‘g6 wecv‘.e‘ . " ALL RESIDENT OF GRAM^~ BAGDEHI, TAHSIEE‘“: DHAMTARI, DISTRICT^— DHAMTARI

¶9

SMT. GEETABAI DAUGHTER OF SHRI GANESH SINGH GOND RESIDENT OF GRAM^— BODRA, POST^— DAHI, TAHSIL & DISTT^- DHAMTARI §^V, *Ew":’9^&(/ “bd'fE 3)?_‘,\F y IL“ favk m“: ’W;‘, WRIT PETITION UNDER ARTICLES {226E27 OF THE géIONSTITUTION‘NATURE OF INDIA FOR THE ISSURANCE OF WRITS IN THE OF MANDAMUS, CERTIORARI, PROHIBITION AND/OR ORDERgS), AND/OR DIRECTION(S[ IN THE NATURE OF WRITS

¶10

B“)

¶11

HIGH COURT^{OFCHHATTISGARHATBILASPUR}

¶12

W.P. No. 1420/2002

¶13

PETITIONER Tribhuvan^LalSahu

¶14

Versus

¶15

RESPONDENTS State of Chhattisgarh and others

¶16

SB:- HON’BLE^{SHRIN.K.AGARWAL,J}

¶17

PRESENT Shr1 B P Sharma^{WlthShrlKsh1t1J} Sharma Advocates for the petltloner Ku Sangeeta Mlshra Panel Lawyer^fortheState ;; None appears^{forotherrespondents}

¶18

ORAL ORDER (7—3-201¹⁾

¶19

Since no^oneis present^{onbehalfoftherespondentsNo.2} to 5‘ inspite^{ofservice,thematterisbeingheardintheir} ab sence.

¶20

The instant petition^{isdirectedagainsttheorderdated30—} 4—2002 passed^{bytheCommissioner} in Case No. 49/A23/89—90 whereby and^Whereunder petitioner’s revision was dismissed.

¶21

are: A notice Facts of the case^inbriefas per petitioner under Section 170—B of the Land Revenue Code 1959 ‘the Act’) was issued by the Sub D1v131onal Officer (briefly Dhamtari The petitioner^{hereinappearedbeforehim,filed} his objection^{andalsofiledcopyofsaledeedshowmgthat} the land^was purchased^{afterduepermissionofCollector} under Section 165(6) of the Code. The Sub Divisional Officer^{withoutenquiringintothematterpassedtheorder} reverting the land in favour of the predecessor of respondents^{No.2to5.Theaboveorderwasconfirmedby} the appellate^{courtaswellasbytherevisionalcourtvide} impugned^order.

¶22

Shri B.P. Sharma, learned counsel for the petitioner would submit, the Sub Divisional Officer has passed the order without adopting proper procedure as envisaged under sub section (3) of Section l70-B^of the^Codewithout giving opportunity of hearing i.e. for producing the documents and evidence. He would further submit that the land in question was purchased by the petitioner with due permission^{ofCollectordated25-8—1972.Thisfacthasnot} been'given any weightage by the Sub Divisional Officer, Addl. Collector as well as by the Commissioner while the impugned order and, therefore, the order passing being illegal deserves to be^setaside.

¶23

Ku. Sangeeta Mishra, learned^{PanelLawyerappearingfor} the State submits that State^isaformal party.

¶24

¶25

I have heard learned counsel^{appearingforthe} petitioner and perused the orders passed^{bythecourtsbelow.}

¶26

¶27

Before considering the rival submissions made by the parties,^{itwouldbeappropriatetoadverttotheprovisions} of section 170-B of the Code. Section l70-B of^theCode was inserted by MP Amendment No. 15 of 1980 Section l70—B reads as under :

¶28

(24.10.1980). “1'70-B. Revision of‘land of members of aboriginal tribe which was transferred by fraud— (1)Every person^{whoonthedateofcommencementofthe} Madhya Pradesh Land Revenue Code (Amendment)^Act,1980 (hereinafter^referredtoas the Amendment Act of¹⁹⁸⁰⁾ is in possession of agricultural land which^{belongedtoamemberof} a tribe which has been declared to be an

¶29

’ aboriginal tribe under subsection (6) of Section 165 between the period^commencingon 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^{Officerinsuchformandin} such manner as may be prescribed, all the information as to how^hehascomein possession of such land. (2)^Ifany person^{failstonotifythe‘informationas} required by sub—section (1) within the period. specified therein it shall be presumed^thatsuch person^{hasbeeninpossessionoftheagricultural}

¶30

’ r

¶31

Ll)

¶32

land Without any lawful authority and the agricultural land shall, on the expiration of the period^{aforesaidreverttothe} person to Whom it originally belonged and if that person be dead, to his legal heirs. 3[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^tothat persons^{towhomitoriginallybelongedandifthat} person^{isdeadtohislegalheirs:}

¶33

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^{landwithinthree} months from the date of receipt of the^reference. On receipt of the information under Sub (3) section (1),^{theSub—DivisionalOfficershallmake} such enquiry as may be deemed^{necessaryabout} all such transactions of transfer^and if he finds that the member of aboriginal tribe has been defrauded of his legitimate^{rightheshalldeclare} the transaction null and void and pass^anorder revesting the agricultural land in the transferer and, if he is dead,ⁱⁿ his^legalheirs.

¶34

1[(3) On receipt of the information under Subsection (1)^{theSub-DivisionalOfficershallmake} such enquiry as may necessary about all such transactions of transfer^and if he finds that the member of aboriginal tribe^{hasbeendefraudedof} 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 finds pass an order revesting the agricultural land in the transferer and if he be dead, in his legal heirs, Where any building or structure has been erected on^the agricultural land prior^{tosuchfinding,he} shall fix the price^{ofsuchlandinaccordancewith} the principles laid down^{forfixationof} price of land in the^{LandAcquisition} Act, 1894 (No. 1 of 1894) and order the person referred to in Sub—section (1) to pay to the transferer the

¶35

¶36

difference, if any, between the price so fixed and the price actually paid to‘ the transferer:

¶37

Provided that where the building or structure has been erected after the 1st day of January, 1984 the provisions of Clause (b)^aboveshall not apply:

¶38

Provided further that fixation of price under Clause (b)^{shallbewithreferencetothe} price on the date of registration of the case before the Sub-Divisonal Officer.]"

¶39

Law is well settled. Sub section (2) of Section l70—B of the Code merely uses the word^“shall be presumed” and^does not indicate that it shall amount to conclusive proof^and therefore, it does not bar any evidence being adduced^for the purpose of disproving it. The presumption under sub section (2) must, therefore, be regarded as a rebuttable ' presumption,^andinacase governed^{bysubsection(2)of} Section 170—B of the Code also enquiry after show^cause notice is necessary where in reply to the show cause notice the vendee appears before the court and^adduces evidence in support of his contention^thathis possession is by lawful authority and if the SDO is satisfied on the material before him as was produced by the vendee or received from other sources that^{thevendee’s} possession is based on lawful authority, the presumption^isrebutted. By applying the above principles^{oflawtothefactsofthe} present^case, it is crystal clear that the^{ordershavebeen} passed^{bytheTribunalswithoutholdinganyenquiryin} terms of sub section (3) of Section 170-B of the Code.» While inquiring^into the matter, the SDO must consider the effect and import of^the permission^{underSection165} (6) of the Code granted by^theAddl. Collector. It is no doubt true the authority^{isentitledtolookintoeffectand} import of such permission granted^bytheAddl. Collector to arrive at a' finding whether or not transaction is bonafide, but the same^is required^{tobeconsideredinits} proper perspective. Therefore, the order passed by^{thecourtbelowaswell}

¶40

as by the SDO are not in accordance with law and in the considered opinion ofi’rhis court this is a nt case to be remanded to the SDO concerned, to conduct an enquiry de novo and pass appropriate order on merit. 10. In the result, the writ petition is allowed and the impugned orders passed by the S.D.O., Additional Collector and Commissioner are set aside and the proceedings are remanded to the SDO, Dhamtari, with a direction to conduct an‘ enquiry as envisaged under sub section (3) of section 170-B of the Code and pass appropriate order after issuing notice ‘to the petitioner and after giving a fair opportunity to the petitioner to represent his case. I also permit the petitioner as well as the respondents to file additional statements and documents in support of their respective case.

¶41

1 1. No order asto costs.

¶42

Sahu

¶43

¥ 1 i Sd/N.K. Agrawal Judge

Tribhuvan Lal Sahu v. the State of Chhattisgarh and Ors.

Case brief

What is this about?

What did the court decide?

Tribhuvan Lal Sahu v. the State of Chhattisgarh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Tejram Dewangan Vs State of Chhattisgarh and Ors.

Prateek Khare Vs State of Chhattisgarh and Ors.

Smt. Ram Bai Tiwari and Ors, Vs Smt. Sudha Tiwari

Dev Prasad Mishr Vs Onkar Awasthy and Anr.

Balkishore Gupta Vs Mahendra and Mahendra and Another

Najja @ Najma Begum Vs Ramtaran Rajak and Ors.