Remanded

Bholanath v. Sonsingh

Chhattisgarh HC4 Nov 2022WPC/2208/2019

Case brief

AI extract

What is this about?

This writ petition challenged an order by the Commissioner setting aside earlier decisions on land transfer. The Court held that the Dhamtaria judgment relied upon by the Commissioner was erroneous and per incuriam after a subsequent review, quashing the Commissioner's order and remanding the matter.

What did the court decide?

The impugned order dated 18.6.2019 was set aside. Matter remanded to the Commissioner to decide the revision afresh after affording hearing within six months.

Bholanath Vs Sonsingh — Property and Title | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (C) No.2208 of 2019

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Bholanath, S/o Late Sahadev, aged about 75 years,

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Banmali, S/o Late Sahadev (died, wrongly mentioned in impugned order though in memo of appeal name of Banmali is already deleted)

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2a . Khemeshwar Joshi, S/o Late Banmali, aged about 55 years,

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2b . Shiv Kumar Joshi, S/o Late Banmali, aged about 45 years,

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2c . Vijay Joshi, S/o Late Banmali, aged about 43 years,

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2d . Dinesh Joshi, S/o Late Banmali, aged about 38 years,

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2e . Smt. Lachani Panigrahi, D/o Late Banmali, aged about 40 years,

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2f . Smt. Geeta Panigrahi, D/o Late Banmali, aged about 34 years,

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Ganesh Prasad, S/o Late Sahadev, aged about 70 years,

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Radheshwari, W/o Bholanath, aged about 70 years,

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Vimla Bai, Wd/o Banmali, aged about 65 years,

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Dalmati, W/o Ganesh Prasad, aged about 60 years,

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All R/o Village Kumrawand, Tahsil Jagdalpur, District Bastar, Chhattisgarh

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---- Petitioners

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versus

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Sonsingh, S/o Bondku, aged about 69 years,

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Fagnu, S/o Sukhram,

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Ramsai, S/o Sonsingh,

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Raghunath, S/o Sonsingh,

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Goverdhan, S/o Sonsingh,

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All Respondents Caste Dhruva and R/o Village Palli, Tahsil Jagdalpur, District Bastar, Chhattisgarh

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The Collector Bastar, at Jagdalpur, Chhattisgarh

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The Sub Divisional Officer (Revenue), District Bastar, Chhattisgarh

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--- Respondents

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------------------------------------------ For Petitioners :	------------------------------------------------------------- Shri B.P. Sharma, Shri M.L. Sakat and Ms. Sameeksha Gupta, Advocates
For Respondents No.1 to 5 :	Shri Rohit Sharma, Advocate
For Respondents No.6 & 7 : ------------------------------------------	Shri Pawan Kesharwani, Panel Lawyer -------------------------------------------------------------

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Hon'ble Shri Justice Arvind Singh Chandel

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Order on Board

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4.11.2022

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With the consent of Learned Counsel appearing for the parties, the matter is heard and decided finally.

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The instant writ petition has been filed against the order dated 18.6.2019 passed by the Commissioner, Bastar Division, Jagdalpur in Revision Case No.201604950100012/28/A-23/2016-17, whereby the Commissioner has set aside the order passed by the Sub Divisional Officer (Revenue), Jagdalpur dated 22.9.2015 and also set aside the order dated 29.2.2016 passed by the Collector, Bastar.

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Respondents 1 to 5 herein filed an application before the Sub Divisional Officer (Revenue), Jagdalpur under Section 170(B) of the Chhattisgarh Land Revenue Code (henceforth ‘the LR Code’) which was registered as Revenue Case No.2/A-23/2013-14. The Petitioners filed their reply/objection and stated that the case under Section 170(B) of the LR Code is not maintainable because there was no transaction of the land in question amongst tribal and nontribal in between 2.10.1959 and 1980. The Sub Divisional Officer (Revenue) rejected the application filed by Respondents 1 to 5 herein holding that there was no transaction amongst the tribal and non-tribal in between 2.10.1959 and 1980 and hence the provision of Section 170(B) of the LR Code is not applicable. Against the said order, the Respondents filed an appeal before the Collector, Bastar, which was registered as Revenue Case No.7/A-23/201516. The Collector also, after hearing the parties, rejected the

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appeal by order dated 29.2.2016. Being aggrieved by the order dated 29.2.2016, the Respondents filed the above-named revision before the Commissioner, Bastar Division. The Commissioner, after hearing the parties, passed the impugned order dated 18.6.2019 and set aside both the orders of the Collector and the Sub Divisional Officer as mentioned above and also directed the Tahsildar, Jagdalpur to mutate the names of the Respondents in the records of the land in dispute. The Commissioner also directed to hand over the possession of the land to the Respondents. Hence, the instant writ petition.

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Learned Counsel appearing for the Petitioners submits that the impugned order passed by the Commissioner is bad in law. In this case, transfer of the land in dispute has not taken place in between 2.10.1959 and 1980 and by the order of the revenue authority the disputed land has been coming in the name of the ancestor of the Petitioners in the year 1937. Therefore, the provision of Section 170(B) of the LR Code is not applicable to the instant case. The Commissioner has passed the impugned order without application of mind on the provision of Section 170(B) of the LR Code. Further, referring to paragraph 7 of the impugned order, the Learned Counsel submits that the Commissioner passed the impugned order relying the judgment passed by this Court in Dhamtaria Laxman v. State of Chhattisgarh, 2014 CGRJ 44 ignoring the fact that in Review Petition No.204 of 2013 the judgment of Dhamtaria case (supra) was found to be erroneous and per incuriam by this Court. Therefore, it is prayed by the Learned Counsel that the matter may be remanded back to the Commissioner for deciding

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the revision afresh after affording proper opportunity of hearing to the parties considering the judgment of this Court dated 27.1.2015 passed in Review Petition No.204 of 2013 (Dhamtaria v. State of Chhattisgarh).

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Learned Counsel appearing for the private Respondents opposes the arguments raised on behalf of the Petitioners. However, it is submitted by him that if the matter is remanded back to the Commissioner then the Commissioner may also be directed that the documents filed by him in the Registry of this Court today on behalf of the private Respondents may also be considered by the Commissioner.

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I have heard Learned Counsel appearing for the parties and perused the impugned order and other material available with due care.

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The Commissioner passed the impugned order relying the judgment on Dhamtaria case (supra) and held that the provisions of Section 170B of the LR Code will also be attracted to the purchase of the land made before 2.10.1959. According to the pleadings of the Petitioners herein, by order of the revenue authorities the disputed land has been coming in the name of the ancestor of the Petitioners in the year 1937. The judgment of Dhamtaria case (supra) passed by this Court was reviewed in Review Petition No.204 of 2013. Vide order dated 27.1.2015 passed in that review petition, relying the order passed by this Court in Writ Petition No.1066 of 2002 it was held by this Court that the amended provision of Section 170B of the LR Code will only apply to the

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transaction done between 2.10.1959 till 24.10.1980. Thus, it is clear that in the order dated 27.1.2015 passed in the said review petition the judgment of Dhamtaria case (supra) was found to be erroneous and per incuriam by this Court. Therefore, the impugned order passed by the Commissioner, relying the judgment of Dhamtaria case (supra), is not sustainable.

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Resultantly, the impugned order passed by the Commissioner is set aside. The matter is remanded back to the Commissioner to decide the revision afresh after affording opportunity of hearing to the parties in accordance with law as early as possible preferably within a period of six months from the receipt of this order. The instant writ petition is allowed in the aforesaid terms.

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Gopal

Bholanath v. Sonsingh

Case brief

What is this about?

What did the court decide?

Bholanath v. Sonsingh

Case brief

What is this about?

What did the court decide?

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