Dismissed

Smt.Shyama Bai v. Collector,Mahasamund and Ors.

Chhattisgarh HC8 Aug 2011WP/2222/2000

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the Court upheld orders of lower authorities reversing a disputed land sale. The Court held the sale void as it violated mandatory provisions regarding transfers by Scheduled Tribes to non-tribals without collector permission and found no perversity in the impugned orders.

What did the court decide?

Petition dismissed; petitioner granted two months' time to pay Rs. 12,000 to third respondent.

Smt.Shyama Bai Vs Collector,Mahasamund and Ors. — Land Acquisition | Chhattisgarh HC (2011)

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“J , [/%gj IN THE HIGH COURT OF JUDICATURE AT JABALPUR gggg‘ PETITION mag“; {0F 2000

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PETITINOER: Swt. Shyama B ai, wife of Shri Vishambhar Lal Sahu, resident of village Kutela Tehils Saraypali, district Raipur(M.P.). ’rS VeSu RENDT:SPOENS 1. The Clecto,olr Mahasamund, dstricti Mahasmund(M.P.).a 2. The Sub-visD i onal—fficerO (Revenue),raypali;distriétSa Raipur(M.P.). 3. Smt. Prem Kumari,,idoww of {i Kaarlohender,oEé by céSte resident of village Kutela Tehsi l Sarayplia District Raur(M.P.)ip PTITIONE UERND ARSTICLE 226/22 7 OF THE CONSTITUTINO OF IIAND FOR ISACESUN OF APIAPROPRTE WRITWR/ITS, ORDER AND DIRCTNSEIO ETC.

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HIGH COURT OF CHHATTISGARH AT BILASPUR Writ getition No. 2222 of 2000

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Petitioner

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: Smt. Shyama Bai.

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Versus

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RESPONDENTS

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: The Coliedor, Mahasamund & others. ,

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ORDER

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‘ For Pronouncement ofOrder > g .082011

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$d/‘ N.K. Agrawal f' Judge

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.‘im:7~

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HIGH COURT OF CI'H-IATTISGARH AT BILASPUR WRIT PETITION NO. 2222 of 2000

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PETITIONER

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Smt. Shyama Bai.

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The Collector and others.

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WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITITUTION OF INDIA M

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L83: Hon’ble Mr. N.K. Mal, g1

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PRESENT :~

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Mr. Ashish Shrivastava, Advocate for the petitioner. Mr. Arvind Dubey, P.L. for the State. ’ ‘ ’ Mr. HS. Patel, Advocate for respondent No.3

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ORDER ( Q^-8-20 11:)

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Instant petition tiled under Article 227 of the Constitution of India calls in question the legality and propriety of order dated 30.03.1998 passed by second respondent and order dated 04.01.2000 passed by flrst respondent.

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Brief facts of the case are as under: (i) According to the petitioner, she purchased a land bearing Kh.No. 541 area 0.425 hectares {new Kh.No. 1233/ 1235 area 0.29 acres) vide sale deed dated 30th August, 1986 for a consideration of Rs.20,000/~ and obtained its possession. Later on, she constructed a house thereupon. (ii) On 12.03.1997, third respondent tiled an application under Section 170—B of the M.P./C.G. Land Revenue Code, 1959 (hereinafter referred to as ‘the Oode’) for

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reversign of disputed land inter alia on the grounds: she is by Caste Uraon (Scheduled Tribe) whereas^"the petitioner is non-tribe and she has executed the sale deed in petitioner’s favour as a collateral security of a loan taken by her from the petitioner; the above sale deed was executed Without prior permission of the Collector for the reasons to be recorded in writing and is void ab-initio.

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The application was contested by the petitioner inter alia on the grounds: the sale deed was executed by third respondent with her consent and dee will; the land stands mutated in petitioner’s favour; if third respondent is Scheduled Tribe by caste, it^wasuponher to get prior permission from the Collector but as she is not Scheduled Tribe, therefore, permission has not been taken; the application flied under Section 170-B of the Code is not maintainable and the petitioner is residing in the house constructed upon the suit land. The second respondent allowed third respondent’s application and directed for reversion of part of the disputed land in third respondent’s favour and also directed for payment of Rs.12,000/— for the remaining part^of the disputed land as its price, upon which, the petitioner had already constructed the house, inter alia finding: third respondent is Scheduled Tribe by caste; the above transfer took place without prior permission of the Collector and is illegal. (V) The appeal: thereagain'st was also dismissed vide impugned order dated 04.01.2000 inter alia dnding: third respondent is Scheduled Tribe by caste; under Section 1’70 of the Code the transfer by way of sale without prior permission of the Collector under Section

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165 of the Code is null and void. Hence, this (6) petition.

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Shri Ashish Shrivastava, learned counsel appearing for the petitioner would submit: the application preferred by third respondent under Section 170-B of the Code was not maintainable inasmuch as sale transaction took place on 30th August, 1986; the learned S.D.O. has passed the order without enquiring into the question^Whether or not third respondent is Scheduled Tribe by caste inasmuch as, according to sale deed, caste of third respondent is Christian; and the’authorities below have passed the orders without affording proper opportunity of hearing to the petitioner.

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On the other hand, Shri H.S. Patel, learned counsel appearing for third respondent, while admitting that Section 170—B of the Code is inapplicable, would submit: third respondent is Scheduled Tribe is not in dispute; it is also not in dispute, transfer by way of sale took place without prior permission^{oftheCollectorinviolationofSection165} (6)^of the Code and is void ab-initio, and therefore, the authorities below have not committed any illegality in passing the orders impugied and the petition has no merit. 5. I have heard learned counsel for the parties and perused^{theordersimpugned.} 6. Before second respondent, third respondent examined Amritlal, Bhim Singh and Pyarelal. All have specifically stated that third respondent is Uraon (Scheduled Tribe) by caste. They were not cross-examined by the petitioner and their statements stand unrebutted. The petitioner examined Manohar, Vidyadhar, Prem Singh, herself, Chakradhar, Pal Vijay and Bano.‘ Vidyadhar, Manohar, Prem Singh and Bano

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have specifically stated that third respondent is Uraon (Scheduled^{Tribe)bycaste.} Petitioner has stated that third‘ respondent is Christian by caste. Pal Vijay has shown his ignorance about the caste of third respondent. Considering the above evidence and the certiiicate filed by third respondent showing her caste as Uraon (Scheduled^Tribe), second respondent as well as first respondent have recorded a finding that third respondent is Uraon (Scheduled Tribe) by caste. It is not in dispute that Uraon caste was declared by the State Government in exercise of its powers under Section 165 (6)^{oftheCodeasScheduledTribe.} In the light of above evidence, the nnding recorded by second respondent and first respondent regarding caste of third respondent cannot be found fault.

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The provisions of sub-section (6)^ofSection 165 of the Code supersede the right of transferor of any interest in land conferred on the Bhoomiswami by sub—section (1)^ofSection 165 of the Code. There can be no transfer without prior permission of the Collector given for the reasons to be recorded in writing of the land belonging to Scheduled Tribe, to a person not belong‘ng to Scheduled Tribe. The Supreme Court in Keshabo and another v. State of M.P. and others, (1996) '7 SCC 765 has held in paragaph 4 as under: “ .........The M.P. Revenue Code is a welfare legislation made to protect the ownership rights in the land of a Scheduled Tribe to effectuate the constitutional obligation of Articles 39 (b)^{and46oftheConstitution} read with the Preamble. Economic empowerment of a tribal to provide economic democracy is the goal. Prevention of their exploitation due to igxorance or indigency is a constitutional duty under Article 46. Agricultural land gives economic status to the tiller. Therefore, any alienation of land in contravention of the above objectives is void.”

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Section 170 of the Code provides for avoidance of tmnsfer 1n contraventlon^{ofSectlon165oftheCode} Under‘ Secuon 170^{oftheCode,Where} possessmn^{1stransferredbya} Bhoomiswami in pursuance of a transfer wh1ch ls 1n contravention of’sub-section (6) of Section 165 any person who, if he survived, the Bhoomiswami^{withoutnearerheirs} would inherit the^{holding,mayapplytotheSub-Divisional} Officer to be placed in possession^{subjectsofarastheSub-} Divisional Ofhcer^{may,inaccordancewiththerulesmadein} this behalf, determine^{tohisacceptanceoftheliabilitiesfor} arrears of land revenue or any other dues which form a charge on the^{holding,andtheSub-DivisionalOhicershall} dispose of such^{applicationinaccordance} with^the procedure as may be prescribed.

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Looking to the^{dateandnatureof thesaletransactionin} the instant case, it is crystal clear, the transaction,^which took place without prior permission of the Collector as envisaged under^Section165 (6)^{oftheCodeisvoidab-initio} and under Section^{170oftheCode,theS.D.O.has} power^to place third respondentⁱⁿ possession^{ofthedisputedland,} Inequity, the portion^{ofland,uponwhich,the} petitioner^had constructed house, has been saved upon payment of Rs. l2,000/— as^its price. 10. In View of above,^{Idonothndanyinfirmityintheorders} impugned warranting^{interferenceofthisCourtinexerciseof} powers^{underArticle227of theConstitutionof India.}

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It is well settled principle of law that this Court, in exercise of its^supervisory jurisdiction^{underArticle227of the} Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity,^{illegality,irregularityor} jurisdictional

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error is writ large on the face^{of therecord,whichisnotinThe} present^case

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Accordingly, the petition, being devoid of merit; is hereby dismissed. However, the petitioner^is granted^further time of two months’ to pay Rs.12,000/—^{tothirdrespondent,} as directed by second respondent,^{fromthedateof thisorder.} 13. No order as to costs. Sdl-

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SdlN.K. Agrawal Judge

Smt.Shyama Bai v. Collector,Mahasamund and Ors.

Case brief

What is this about?

What did the court decide?

Smt.Shyama Bai v. Collector,Mahasamund and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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