Allowed

Samelal @ Samaylal v. Board of Revenue and Ors.

Chhattisgarh HC1 Oct 2013WP/6028/2006

Case brief

AI extract

What is this about?

In a writ petition challenging the restoration of tribal land under the Chhattisgarh Land Revenue Code, the Court held that revenue authorities cannot invoke the presumption of unlawful possession under Section 170-B(2) without issuing a show-cause notice and conducting an enquiry under sub-section (3). The impugned orders were set aside.

What did the court decide?

Petition allowed; impugned orders of SDO, Additional Collector, Additional Commissioner and Board of Revenue set aside; proceedings remitted to SDO to conduct enquiry.

Samelal @ Samaylal Vs Board of Revenue and Ors. — Land Acquisition | Chhattisgarh HC (2013)

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AT^BILASPUR 1N THE^{HIGHCOURTOFCH51ATTISGARH} (C WRIT^{PETITIONNo¢6%/2006}

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PETITIONER : / Mann Smgh aged^about 78 years, reSTdent of Vlllage Tahs11^—

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of Revenue, Board States. Upper Commissioner; IRaipur Raipur; M.P. [Now Division, C-G-IUpper Collector^Rajnandgaon, Distrlct^{RaJnandgaon[CG]} Officer Sub D1v1$1ona1 District— [Revenue]^Khalragarh; Rajnandgaon [C.G.) of 1ate^Udbai R’am^Singh,Son Gond; aged about 65 years; -of Village ,Kope resident — Tahsil Bhatha; P.O.^Gandayee; Chhuikhadan; Distt.^Rajnandgaon [C.G.]

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WRIT^{PE’IITIONUNDERARTICLE22%[ 227OFTHE} CONSTITUTION^{OFINDIAFORISSUANCEOFMANDAMUS} PROHIBITIONS^{ANDOTHERSUITABLEWRIT} CERTIORARI DIRECTION^OR OR^{WRITSORDERORORDERS} DIRECTIONS

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MR,

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SB: Hon'ble Shri Justice Pritinker Diwaker

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w.P. (C) No. 6028/2006

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PETITIONER Samelal alias Samaylal

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VERSUS

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RESPONDENTS

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Board of Revenue and others

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Shri R.N. Jha counse!^forthe petitioner. Shri Rahul Tamaskar PL for the^{respondents1to4/State.} Shri Devesh Kela counsel^{forrespondentNo.5.}

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O R D E R (01.10.2013)

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Challenge in the present petition is to the validity of the order dated 19.1.1998 passed by the Board of Revenue in Revision preferred by the petitioner^{affirmingtheorder} passed^by the Additional Commissioner, Raipur dated 30.3.1994, order dated 6.3.1991 passed^{bytheAdditionalCollector,Rajnandgaon} and order dated 17.6.1988rpassed by the SDO (Revenue) Khairagarh.

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Facts of the case^areasunder:

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(l) On 24.4.1978^{afterobtaining} permission^{fromtheCollector} under Section¹⁶⁵ (6)^{ofC.G.LandRevenueCode(forshortthe} “Code") vide Annexure P—5, the petitioner purchased the land bearing Khasra^No. 181/2, area 1.59^{acresofPatwariHalkaNo.} 8 from tribal Udbal Gond i.e. father of respondent No.5 vide registered^{saledeeddated3.5.1978.} After receiving^{thereportofPatwariacaseunderSection} (ii) 170-B of the Code was registered against the petitioner on

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16.6.1988 and on the said date a show-cause^{noticewasissued} to the petitioner and record of the^{Patwariwasaisosummoned.}

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(iii) On 17.6.1988 (Annexure P-4) order was passed by the SDO hoiding that the petitioner is in possession of the land in question^{incontraventionoftheprovisionsofSection170-B(1)of} the Code and therefore the order was passed for reversion of land in favour of^{fatherofrespondentNo.5.}

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(iv) The order of SDO (Revenue)^{wasassailedbythe} petitioner before the Additionai Collector. However, on 6.3.1991 the Additional Coilector confirmed the order passed by the SDO Order of Additionai Collector dated 6.3.1991 was (Revenue). assailed by the petitioner before the Additional Commissioner who vide order dated 30.3.1994 dismissed the revision and confirmed the^{orderofAdditionalCollector.}

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\‘v .

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Aggrieved by the orderrof Additional Commissioner, the (v) the second revision before the Board of petitioner preferred Revenue which^{bytheorderimpugnedcametobedismissed.} 3. Counsel for the petitioner submits that all the Revenue Authorities have passed the orders completely ignoring the provisions^ofSection 170-B (3)^{oftheCode.Hesubmitsthata} enquiry ought to have been conducted by the SDO proper (Revenue)^{andwithoutconductinganysuchenquiry,} within one day of issuing^{showcausenoticetheorderwaspassedbythe} SDO which^{iscontrarytolawaswellasfactsandcircumstances} of the case. ln support of his contention, counsel for the his reliance^{onthedecisionsofHighCourtof} petitioner^placed MP. in the^{matterofAtmaramv.} State of^M.P.reported in AIR 1995 MP^{225andinthematterofPyarelalv.StateofM.P.And} others reported in 1999 RN 304. Counsel for the petitioner further submits^{thatthereissomedelayinfilingthepetitionbut} it

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was because the petitioner^could not get any information about the order of Board of Revenue from his counsei and that at the time of filing the case before the Board of Revenue he was assured by his counsel for being informed about the order of Board of Revenue but he came to know about the said order only when he received the notice from Tehsildar for dispossession. 4. Supporting the order impugned it has been argued by the counsel for the respondents that all the orders passed by the Revenue Authorities are in accordance with Iaw and there is no infirmity in the same. They submit that the delay in filing the petition has not been properly explained by the petitioner^and therefore the petition is liable to be dismissed on this ground alone.

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In the petition the petitioner has explained the delay by assigning several reasons one of which being that as the petitioner^couldnot get^{theinformationfrom} his counsel he was not aware about the passing of order by the Board of Revenue and the moment he received the notice from the Tehsildar regarding dispossession, he came to know that some order was passed by the Board of Revenue and then he approached this Court.

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While entertaining this petition, on 13.11.2006^noticeswere issued and the order regarding maintenance of status-quo was passed in respect of possession of^land in dispute. Considering the nature of orders passed^{bytheRevenueAuthorities,thatthe} petition^{wasentertainedbythisCourton13.11.2006andthatthe} delay has been properly^{explainedbythepetitioner} in filing the writ petition, in the peculiar facts and^{circumstancesofthecase,} this Court is not^{inclinedtodismissthe} petition^onthe ground^of delay alone and thus proceeds^{todecidethesameon} its own merits.

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From the documents filed by the parties it is apparent that before passing the order dated 17.6.1988 no enquiry was conducted by the SDO (Revenue). On 16.6.1988 notice was issued to the petitioner, record of the Patwari was summoned and on the second day i.e. 17.6.1988 the order was passed by the SDO directing for reversion of the land in favour of father of respondent No.5. At the stage of appeal and revision, all the higher revenue authorities have^{heldthatasthe} petitioner^faiied to submit deciaration as required under^Section170-B (1)^ofthe Code, presumption under^{subsection2ofSection} 170-B of the Code has to be drawn against the petitioner^{andthereforethe} iand is to be reverted to^{fatherofrespondentNo.5.}

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Thus the question for consideration is whether opinion of the statutory authorities^{isvaiidandtheywere} justified^indirecting restoration of the iand in question^{infavourofrespondentNo.5or} his father by invoking^{thefictio'nenactedundersub—section} (2)^of Section 170-B of the Code. Sub-sections (1), (2) and (3) of Section 170-B read^asfoilows:

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“170-B. Reversion of land of members of aboriginal tribe^{whichwastransferredbyfraud.—} (1) Every person who on the date of commencement^{oftheChhattisgarhLandRevenue} Code (Amendment)^Act, 1980 (hereinafter^referred to as the Amendment^Actof1980)is in possession of agricultural^{landwhichbelongedtoamemberof} a tribe which^{hasbeendeclaredtobeanaboriginal} tribe under^{sub—section} (6)^{ofSection165between} the period commencing on the 2'” 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

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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 Iand. (2) If any person fails to notify the information as required by sub-section (1) within the period specified therein, it shail be presumed that such person has been in possession of the agricuitural Iand without any Iawful authority and the agricuitural 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. (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 aboriginai tribe^{hasbeendefrauded} of his legitimate right, he shail deciare the transaction null and-‘voidand pass an order revesting the agricultural^land in the transferer and, if he is dead, in his legal^heirs." From a reading of above^{subsectionswhatemergesisthat} in sub—section (1)^a person^who is inpossession of^agricultural land belonging to an aboriginal tribe under sub-section (6) of Section 165 of the Code between 2nd October, 1959 and 24'“ October, 1980 is^{requiredtonotifythe} jurisdictional^{SubDivisional} Officer all the information as to how he came in possession ofsuch land. ln the instant case,^{noinformationwas} passed^onto the SDO. However, the SDO ought not to have straightaway invoked the deeming^{clauseenactedinsub-section} (2)^ofSection 170-B of the^{Codeanddirectedrestorationofthesubjectlandto} respondent No.5. No doubt, if no such information has been on to the SDO under sub section (1), it leads to a passed presumption that the person has been in possession without

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v,,, }

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Iawful authority. The consequence of the presumption being drawn is that the iand shall, on the expiry of the period of two years,^{referredtoinsub—section} (1), revert to the aboriginai tribal vendor to whom it originally belonged and if he is dead, to his Iegal heirs.

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“on 9. Though sub section (3) commences with the words receipt of the information under^subsection (1)”, it cannot be that no show—cause notice and^{noenquiryarenecessary} in matters covered by sub section (2). In Atmaram and others v. State of MP. (supra), it has opined that the enquiry^{envisagedundersub} section (3) of Section 170-B of the Code equally applies to matters covered by sub^section (2). In other words, issuance of show-cause notice^{andconductofenquiryenvisagedundersub} section (3) of Section^{170—BoftheCodeareequallyinsistedand} applicable when^{thematteriscoveredbysubsection} (2),^thatis to say that even in a case where the person^{whohascomeinto} of the iand between 2m October, 1959 and 24'“ possession October, 1980 did not notify the information^tothe jurisdictional Sub Divisional Officer. The Division Bench of Madhya Pradesh High Court in the above judgment^{whileopiningsohas} placed reliance on its earlier judgment in the case of Dhirendra Nath Sharma vs. State of MP. and another, 1986 RN 106 = 1985 MPLJ 786. i am in respectful agreement^{withtheaboveviewof} the Madhya^{PradeshHighCourt.Simplybecause,subsection(2)} has enacted a presumption, it would be totally unfair for a jurisdictional^{SubDivisionalOfficertostraightawayevictortake} over the land^{andrestorethesametotheaboriginaltribalvendor} without issuing notice and conducting enquiry envisaged under sub section (3)^{ofSection170-BoftheCode.}

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There may^{notbeanexpress} provision^{underSection170-} B of the^{Codesoastomakethesituationclearwithrespectto} the matter’falling^{undersubsection} (2)^{also.However,conducting}

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enquiry and giving fair opportunity to the person like the petitioner before passing an adverse order is absolutely necessary, particularly, in the premise of the definite case of the petitioner that he purchased the Iand after obtaining permission^fromthe Collector as required under sub section (6) of Section^165ofthe Code.

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ln aforesaid view of the matter, this Court is of the considered opinion that matter is required to be remitted to the SDO. Order accordingly. SDO^{toconductanenquirydenovoand} pass^{appropriateorderonmerit.}

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ln the result, the petition is allowed. Impugned orders by SDO, Additional Collector, Additional Commissioner passed and the Board of Revenue^{areherebysetaside.Proceedingsare} remitted to the SDO with a direction to conduct an enquiry as envisaged under sub section (3) of Section 170-B of the Code and pass appropriate^{orderafterissuing} notice to the petitioner and after giving a fair^{opportunitytothe} petitioner^{andrespondent} No.5 to represent their^case.

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1r .A

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Parties would be^{atlibertytofileadditionaldocumentsand} the statements lf required in support of their case. Since the proceedings u/s 170-B were initiated in the year 1988, it is expected not^{onlyfromtheSDObutallotherrevenueauthorities} to expedite the proceedings^{withoutanyunduedelay.}

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I l Sdl‘ Pritinker^Diwaker , Judge

Samelal @ Samaylal v. Board of Revenue and Ors.

Case brief

What is this about?

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Samelal @ Samaylal v. Board of Revenue and Ors.

Case brief

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