Heera Singh And Ors. Vs State Of Chhattisgarh And Ors.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPC No.1540 of 2013

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1. Heera Singh, S/o Thakur Ram Sahu Aged About 59 Years R/o Village Ghoghra, Ps And Tah Pithora, Civil And Revenue Distt Mahasamund, Cg, Chhattisgarh

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2. Anil Kumar S/o Daya Singh Aged About 42 Years R/o Village Kouhakuda, Patwari Halka No.10, Po Samhar, Via Pithora, Ps And Tah Pithora, Civil And Revenue Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh

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3. Smt. Pushpa Bai W/o Anil Kumar Singh Aged About 40 Years R/o Village Kouhakuda, Patwari Halka No.10, Po Samhar, Via Pithora, Ps And Tah Pithora, Civil And Revenue Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh ---- Petitioners

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Versus

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1. State Of Chhattisgarh Through The Secretary, Department Of Revenue, Mantralaya, Mahanadi Bhawan, Capital Complex, Naya Raipur, Distt Raipur, Cg, Chhattisgarh

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2. The Commissioner Raipur Division, Distt Raipur, Cg, District : Raipur, Chhattisgarh

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3. The Collector Mahasamund, Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh

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4. The Sub Divisional Officer Revenue Pithoura, Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh

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5. Tula Ram Gond S/o Maya Ram Gond Aged About 47 Years R/o Village Kouhakuda, Revenue Inspection Board Khallari, Ps And Tah Bagbahra, Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh

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6. Tek Ram Gond S/o Maya Ram Gond Aged About 43 Years R/o Village Kouhakuda, Revenue Inspection Board Khallari, Ps And Tah Bagbahra, Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh

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7. The Branch Manager Chhattisgarh Rajya Sahakari Bhumi Vikas Bank, Station Road, Tah Bagbahra, Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh

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8. The District-In-Chare Officer Chhattisgarh Rajya Sahakari Bhumi Vikas Bank, Station Road, Tah Bagbahra, Distt Mahasamund, Cg, District : Mahasamund, Chhattisgarh ---- Respondents

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(Cause-title taken from Case Information System)

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For Petitioners	:	Mr. Sunil Sahu, Advocate
For State/Respondents No.1,	:	Mr. Keshav Prasad Gupta, G.A.
2, 3 & 4
For Respondents No. 5 & 6	:	Mr. Manoj Paranjpe, Advocate
For Respondents No. 7 & 8	:	Mr. Vishal Sahu, Advocate holding the brief of Mr. Jitendra Shrivastava, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey

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Order on Board

08.04.2024

1) The petitioners have preferred this petition seeking the following relief(s):-

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“ 10.1 That this Hon’ble Court may kindly be pleased to issue an appropriate writ by quashing the order impugned dated 02.09.2013 passed by Commissioner Raipur (Annexure P/1) and restore the order passed by SDO (Revenue) Mahasamund on 16.06.2011.

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10.2 That this Hon’ble Court may kindly be pleased to call for the records of courts below for kind perusal of this Hon’ble Court.

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10.3 That any other/relief order that may be deemed fit and just in the facts and circumstances of the case including awarding of the heavy cost of the petition may also be passed.”

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2) Petitioner No.1 is an auction purchaser and Petitioners No. 2 & 3 who purchased some part of the property from Petitioner No.1, had subsequently challenged the order passed by the Commissioner, Raipur (C.G.) dated 02.09.2013 whereby the revision preferred by them was dismissed affirming therein the order passed by the Collector, Mahasamund (C.G.) dated 29.10.2012.

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3) The facts of the present case are that the lands bearing survey Nos. 143/4, 147/1, 148/1 and 168/1 ad-measuring total area of 16.69 acres situated at Village-Kohakuda, Tehsil-Bagbahra, District Mahasamund (C.G.) was recorded in the name of Mayaram in the revenue records. Mayaram mortgaged the property with respondents No. 7 & 8/Branch Manager, Chhattisgarh Rajya Sahkari Bhumi Vikas Bank, Tehsil-Bagbahra, District-Mahasamund (C.G.) on 03.11.1972 and took a loan of Rs.10,000/-. It appears that Mayaram could not repay the loan amount. On 16.04.1985, respondent No.7/Bank issued a circular to the effect that no permission from the Collector or the State Government is

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required to auction/sell the land in a recovery proceeding. As Mayaram could not repay the loan amount, his mortgaged property was put for auction on 06.05.1986. Petitioner No.1 participated in that auction and being the highest bidder, his bid was accepted. On 28.06.1986, information was given to Mayaram by the Bank Officer regarding the auction. On 24.11.1986, the sale was confirmed by respondents No. 7 & 8 and thereafter, a sale certificate was issued according to the provisions of Section 18 of the Bhumi Vikas Bank Act, 1966 in favour of petitioner No.1 on 09.02.1987. Petitioner No.1 moved an application for mutation before the Nayab Tehsildar, Bagbahra and the same was allowed vide order dated 14.05.1987. After the death of Mayaram, respondents No. 5 & 6, who were the legal representatives of the late Mayaram, moved an application under Section 170-B of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code of 1959’) before the Sub-Divisional Officer (Revenue), Mahasamund (C.G.) on 02.12.2009. The application so moved was dismissed by the Sub-Divisional Officer (Revenue) holding that there was no transaction between the members of the tribe and nontribe, therefore, the provisions of Section 170-B of the Code of 1959 would not attract. An appeal was preferred by respondents No. 5 & 6 before the Collector, Mahasamund (C.G.) and the same was allowed vide order dated 29.10.2012. A revision was preferred by the petitioners before the Commissioner (Division) Raipur (C.G.) and the same was also dismissed vide order dated 02.09.2013 affirming therein the order passed by the Collector.

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4) Learned counsel appearing for the petitioners would argue that the provision of Section 165(6) of the Code of 1959 and Section 41-A(5) of the Chhattisgarh Cooperative Societies Act, 1960 (for short ‘the Act of

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1960’) would not attract and there was no need to obtain permission from the Collector to put the property on auction as the property was mortgaged with the Bank and there was a Circular issued by the Managing Director of the Bank dated 16.04.1985. He would further submit that Section 165(9) of the Code of 1959 grants sanction to the authority to put the mortgaged property on auction. He would also submit that the mortgage proceeding was not challenged by respondents No. 5 & 6 or their father before any of the authorities and that petitioner No.1 being the auction purchaser had the right to purchase the property. He would contend that the property in question was auctioned on 06.05.1986 whereas respondents No. 5 & 6 moved an application under Section 170B of the Code of 1959 on 02.12.2009 after a lapse of 23 years. He would further contend that after due scrutiny and inquiry, a well-reasoned order was passed by the Sub-Divisional Officer (Revenue) and the Collector as well as the Commissioner, Division Raipur (C.G.) committed an error of law in interfering with the said findings. He would also contend that in accordance with the provisions of the Transfer of the Property Act, 1882, the property was handed over to the petitioners and being a Central legislation, it would prevail over Section 41-A(5) of the Act of 1960 and the Code of 1959. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matters of Uco Bank and another Vs. Dipak Debbarma and others reported in 2017 (2) SCC 585; the order passed by the Hon’ble Division Bench of this Court in the matter of Yadram and another Vs. State of Chhattisgarh and others reported in 2015 (5) C.G.L.J. 402; the matter of Arun Agrawal Vs. Chhattisgarh State Revenue Board and others , reported in 2020 (1) ILR 409 and the matter of Motilal (dead) through

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Lrs. Vs. Jhamman and others reported in 2021 (1) CGLJ 355 .

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5) Mr. Paranjpe, learned counsel appearing for respondents No. 5 & 6 would oppose the submissions made by Mr. Sahu. Mr. Paranjpe would submit that Section 41-A(5) of the Act of 1960 specifically puts provisions for the transfer of land of aboriginal tribes. He would further argue that the object of Section 165(6) of the Code of 1959 is to secure the interest of aboriginal tribes. He would also argue that the authority concerned has to inquire while granting permission in accordance with Sections 165(2) as well as 165(9) of the Code of 1959. He would also submit that Section 41-A(5) of the Act of 1960 carves out an exception to Section 165 (6) of the Code of 1959 and prohibits the society from selling any land of the aboriginal tribes without obtaining permission from the appropriate authority. He would also contend that the issue involved in the present case is not res integra and stands adjudicated in a judgment rendered by the High Court of the Madhya Pradesh in the matter of Chandrawati and others Vs. Ganesh Prasad Lakshmi Prasad and others reported in 1999 (1) M.P.L.J.107. He would further argue that the ratio laid down in the case of Chandrawati (supra) has been considered and relied on by this High Court in a catena of judgments : (i) Usha Mirani and another Vs. State of Chhattisgarh and others reported in 2011 (1) C.G.L.R.W.66 and (ii) Joshep and others Vs. Dhaneshwar Sao and others passed in Second Appeal No.197 of 1993 . He would lastly submit that the law precedent is that the Single Bench cannot take a view in departure or in conflict from the view expressed by the Bench of larger strength which was taken at an earlier point in time.

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6) Mr. Vishal Sahu, Advocate holding the brief of Mr. Jitendra Shrivastava, Advocate for respondents No. 7 & 8 would submit that after

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following the provisions of law, the mortgaged property was put on auction and petitioner No.1 was the auction purchaser and initially, after the execution of the sale, the possession was handed over.

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7) Mr. Keshav Prasad Gupta, learned Government Advocate appearing for the State would oppose the submissions made by Mr. Sahu.

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8) Heard learned counsel appearing for the parties, considered their rival submissions made herein-above and perused the documents placed on the record.

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9) Some provisions of the Chhattisgarh Land Revenue Code, 1959 and Chhattisgarh Cooperative Societies Act, 1960 would be relevant for the disposal of the instant petition. Sections 154,154-A,165(1)(2)(6) & (9) of the Code of 1959 and Section 41-A of the Act of 1960 provide as under:-

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S.154. Purchaser not liable for land revenue due prior to sale. -Notwithstanding anything in Section 138, or Section 139, the person named in the certificate of purchase shall not be liable for land revenue payable in respect of the land for any period previous to the date of the sale.

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154A. Powers of the Tahsildar to let out the holding in respect of which arrear is due or any other holding of the defaulter. -(1) Where the arrear of land revenue is due in respect of a holding or where any money is recoverable in the same manner as an arrear of land revenue under Section 155, the Tahsildar may, notwithstanding anything contained in this Code, after attachment of holding under clause (b) for the recovery of dues of a Cooperative Society, or clause (bb) or clause (bbb) of Section 147 as the case may be, let out the holding on which arrear is due or any other holding belonging to the defaulter which is used for the purpose of agriculture to any person other than the defaulter for a period not exceeding ten years commencing from the first day of agricultural year next following upon such terms and conditions as the Collector may fix:

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165. Right of transfer.-(1) Subject to the other

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provisions of this section and the provision of Section 168 a bhumiswami may transfer any interest in his land.

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165(2) Notwithstanding anything contained in sub-section (1)-

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(a) no mortgage of any land by a bhumiswami shall hereafter be valid unless atleast five acres of irrigated or ten acres of unirrigated land is left with him free from any encumbrance or charge;

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(b) subject to the provisions of clause (a), no usufructuary mortgage of any land by a bhumiswami shall hereafter be valid if it is for a period exceeding six years and unless it is a condition of the mortgage that on the expiry of the period mentioned in the mortgage deed, the mortgage shall be deemed, without any payment whatsoever by the bhumiswami to have been redeemed in full and the mortgagee shall forthwith re-deliver possession of the mortgaged land to the bhumiswami;

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(c) if any mortgagee in possession of the land mortgaged does not hand over possession of land after the expiry of the period of the mortgage or six years whichever expires first the mortgagee shall be liable to ejectment by the orders of the Tahsildar as trespasser and the mortgagor shall be placed in possession of the land by the Tahsildar :

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165(6) . Notwithstanding anything contained in sub-section (1) the right of bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf, for the whole or part of the area to which this Code applies shall-

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(i)in such areas as are predominately inhabited by aboriginal tribes and from such date as the State Government may, by notification, specify, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe in the area specified in the notification;

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(ii)in areas other than those specified in the notification under clause (i), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing.

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165(9) Nothing in this section shall-

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(i)prevent a bhumiswami from transferring any right in his land by way of mortgage to secure payment of an advance made to him by co-

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operative society subject to the condition that the land shall not be sold to secure recovery, without exhausting the procedure prescribed in Section 154-A; or

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(ii)affect the right of any such society to secure recovery or an advance made to him, in accordance with the provisions of Section 154-A.

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S.41-A. Right of society to acquire and dispose of immovable property -(5) Nothing in this section shall be construed to empower the society to sell any land or interest therein of a person belonging to an aboriginal tribe, which has been declared to be an aboriginal tribe by the State Government by notification under subsection (6) of section 165 of the Chhattisgarh Land Revenue Code, 1959 (No.20 of 1959) to a person not belonging to such tribe.

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10) Admittedly, the property was initially recorded in the name of Mayaram who expired prior to 2009 i.e. before the application under Section 170-B of the Code of 1959 would have been moved by respondents No. 5 & 6. The property was mortgaged with respondents No. 7 & 8/Bank. Mayaram could not repay the loan amount and his property was put up for auction. Petitioner No.1 was the highest bidder and he purchased property through auction on 06.05.1986. The sale certificate was also issued in his favour and the property was mutated in his name. Later on, petitioner No. 1 sold some part of the property to Petitioners No. 2 & 3. Respondents No. 5 & 6 moved an application under Section 170-B of the Code of 1959 before the Sub-Divisional Officer (Revenue) which was rejected. The Collector and the Commissioner passed an order in favour of the Aboriginal tribe.

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11) Section 165 of the Code of 1959 deals with rights of transfer. Section 165(2) of the Code of 1959 puts certain restrictions while alienating the property of Bhumiswami. Section 165(2)(a) of the Code of 1959 specifically says that no mortgage of any land by a Bhumiswami shall hereafter be valid unless at least five acres of irrigated or ten acres

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of unirrigated land is left with him free from any encumbrance or charge. The intention of the legislature is to prevent the Bhumiswami from alienating or mortgaging its entire property to save him from starvation. It is one of the conditions to be examined by the Collector while granting permission under Section 165(c) of the Code of 1959. Section 165(6) says that the land of Bhumiswami belonging to a tribe shall not be transferred either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to a tribe without the permission of the Collector given for reasons to be recorded in writing. Section 165(9) of the Code of 1959 says that this Section shall not prevent a Bhumiswami from transferring any right by way of mortgage to secure payment of an advance made to him by cooperative society and the land shall not be sold to secure recovery, without exhausting the procedure prescribed in Section 154-A and at the same time, the Section shall not affect the right of any society to secure recovery of an advance made to such person in accordance with the provisions of Section 154-A of the Act of 1959. This means thereby the Society may recover the loan amount so advanced to such person after exhausting the procedure provided under Section 154-A of the code of 1959 and not otherwise. Section 41-A(5) of the Act of 1960 deals with the right of society to acquire and dispose of immovable property. Section 41-A(5) of the Act of 1960 says that the land of a person belonging to an Aboriginal tribe which has been declared to be an Aboriginal tribe by the State Government shall not be put up for sale.

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12) In the present case, the property was mortgaged by Mayaram and without conducting any inquiry and without obtaining permission according to provisions of Section 165(6) of the Code of 1959, the

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property was put up for auction.

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13) Now coming to the judgments relied on by the learned counsel for the petitioners. In the matter of Uco Bank (supra), the Hon’ble Supreme Court in para 15 held as under:-

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“ 15 . In the present case the conflict between the Central and the State Act is on account of an apparent overstepping by the provisions of the State Act dealing with land reform into an area of banking covered by the Central Act. The test, therefore, would be to find out as to which is the dominant legislation having regard the area of encroachment.

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14) In the matter of Motilal (dead) (supra), the Hon’ble Supreme Court

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in paras 11,12,13 & 14 held as under:-

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“11 .It is clear from the aforesaid provision that where a bhumi-swami transfers any right in his land to secure payment of advance made to him by a Cooperative Society, the remaining provisions of Section 165 of the Land Revenue Code shall not prevent him from doing so. The other part of this sub-section provides that nothing in Section shall affect the right of any such society to sell such right for the recovery of such advance. The overriding effect given to the provision contained in sub-section (9) overrides all other provisions including sub-section (6) of Section 165 as well. Provision contained in sub-section (9) excludes application of sub-section (6) not only in the matter of transfer of right of bhumiswami in favour of Cooperative Society to secure payment of advance but also excludes applicability of sub-section(6) in the matter of exercise of right by such Cooperative Society to sell such right for the recovery of advance. There is nothing in this provision either expressly stated or inferred from necessary implication that it does not seek to exclude from its purview, rigor of subsection (6) of Section 165 so as to say that notwithstanding provision contained in sub-section (9), even in the matter of transferring rights to secure payment of advance and sale of right to recover advance, the seller bhumiswami, if he happens to be an aboriginal tribe, it would require prior permission of the Collector. Therefore, applying the rule of literal construction and overriding effect, it leads to irresistible conclusion that situations covered under subsection (9) do not require prior permission of the Collector as envisaged under sub-section (6) of the Section 165 of the Code. Once the interplay of sub-section (6) and sub-section (9) of Section 165 of the Code is interpreted in the manner aforesaid, there is no difficulty in reaching to logical conclusion that when Bank proceeds to auction mortgaged land of a bhumiswami, even though he is an aboriginal tribe, permission of the Collector would not be necessary.

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12. Reliance has been placed on the decision of a coordinate Bench of this Court in the case of Usha Mirani

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(supra). In that case, the Court had referred to the then existing provision contained in sub-section (7) (a) and 7 (b) of Section 165 of the Code. The provision under consideration contained proviso that nothing in this subsection shall apply where a charge has been created on the land by a mortgage. That means, in a case of mortgage, sub-section (7) (b) of Section 165 of the Code will have no application. In the present case, on facts, it is an admitted position that the land was mortgaged with the Bank.

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13. As far as alleged violation of Section 170-B of the Land Revenue Code is concerned, suffice to say that the scope and ambit of enquiry under Section 170-B is entirely different. Irrespective of whether or not permission was required by the Collector in the matter of sale and purchase and whether or not such permission was taken, the land belonging to an aboriginal tribe can be returned to him if it is found that he has been defrauded of his legitimate right. Further, Section 170-B itself was brought on statute book by way of amendment vide M.P. Act No.15 of 1980 w.e.f. 24.10.1980. Whereas, in the present case,transaction itself is dated 7.4.1979. Therefore, the auction of the mortgaged land belonging to Rupau Gond could not be assailed on the ground of violation of Section 170-B of the Land Revenue Code.

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14. In the result, this Court finds that the auction held on 7.4.1979 by the Cooperative Land Development Bank and the consequent sale of land of Rupau in favour of original petitioner and successful bidder Motilal did not violate any of the provisions contained in Section 165 of the Land Revenue Code. Accordingly, impugned order passed by the Board of Revenue is set aside, with the effect that all the orders passed by the Sub Divisional Officer and Addl. Collector in appeal declaring auction and sale illegal shall have no effect in law.

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15) In the matter of Chandrawati (supra), the Hon’ble Supreme Court

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in paras 8, 9 & 10 held as under:-

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“ 8 . As the decision on the first substantial question of law formulated will depend upon answer to the second substantial question of law, I deem it expedient to consider the same first. The Madhya Pradesh Co-operative Societies (Amendment) Ordinance, 1975 (Ordinance No. 22/75) was promulgated by the Governor and published in M.P. Rajpatra (Asadharan) on 20-11-1975. Said Ordinance was promulgated to amend the provisions of the Madhya Pradesh Co-operative Societies Act, 1960. Section 17 of the said Ordinance inserted Section 41-A in the Co- operative Societies Act. The said Ordinance was followed by the Madhya Pradesh Co-operative Societies (Amendment) Act, 1976 (Act No. 14 of 1976) and was published in Gazette on 15-3-1976. What was provided by Section 17 of Ordinance No. 22/75 has been provided by Section 16 of Act 14/76. Section 41-A of the Co-operative Societies Act, has been inserted by the aforesaid provision. Section 41-A(5) (6) which is relevant for the purpose reads

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as follows :

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“41-A(1)……….. (2) ……………..

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(3) ……………..

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(4) ………………

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(5) Nothing in this section shall be construed to empower the society to sell any land or interest therein of a person belonging to an aboriginal tribe which has been declared to be an aboriginal tribe by the State Government by notification under section (6) of Section 165 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959) to a person not belonging to such tribe.

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(6) Nothing in the Madhya Pradesh Ceiling on Agricultural Holdings Act 1960 (No. 20 of 1960) shall apply to a society acquiring land under sub-section (1) and holding such land till such time as the society is in a position to sell the land in the manner provided in this section or otherwise, at a price which is adequate to cover its dues."

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Section 165(9) of the Co-operative Societies Act before its amendment by Madhya Pradesh Act No. 2/90 reads as follows :-

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"165(9) Nothing in this section shall prevent a Bhumiswami from transferring any right in his land to secure payment of an advance made to him by the Co-operative Society or shall affect the right of any such society to sell such right for the recovery of such advance."

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State Government in exercise of its powers conferred under Section 165(6) of the Madhya Pradesh Land Revenue Code (hereinafter referred to as the Code) has published the list of aboriginal tribes which includes Nagvanshi at item No. 15 whereas Nageshiya at item No. 32.

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9. It is the stand of the plaintiff that he being a Nageshiya, is an aboriginal tribe notified under Section 165(6) of the Code and hence in view of Section 41-A(5) of the Cooperative Societies Act (hereinafter referred to as the Act) nothing in Section 41A of the Act shall construe to empower the society to sell any land or interest of the plaintiff who belongs to the aboriginal tribe. Shri Baghel, however, appearing on behalf of the respondents 1, 2 and 6 submits that in view of Section 165(9) of the Code, Co-operative Society shall have the right to sell rights for the recovery of advance and the provisions of Section 41-A(5) of the Act shall not come in way of the society. He. submits that the provisions of the Code being special enactment, provisions of Section 41-A(5) of the Act shall be controlled by the former. It is relevant here to state that the lower appellate Court had accepted this stand of the defendants and found that Section 165(9) of the Code holds the field and is not controlled by Section 41-A(5) of the Act.

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10. Having heard Shri Ravish Agrawal for the appellants, Shri L. S. Baghel for respondents 1, 2 and 6 and Ku. Jyoti Agnihotri for respondent No. 7, I am of the considered opinion that the view taken by the lower appellate Court is palpably wrong. Section 165 of the Madhya Pradesh Land Revenue Code regulates the right and interest in land by the Bhumiswami. However, the riders put by the other clauses of Section 165 of the Code for transfer of interest of land by the Bhumiswami has been made inapplicable, in case of transfer by Bhumiswami to Co-operative Society to secure loan and the societies right to sell such right for the recovery of such advance. Provisions referred to above applies in the case of Bhumiswamis belonging to any class. However Section 41-A(5) of the Act has carved out an exception and it prohibits the society to sell any land or interest of a person belonging to an aboriginal tribe, notified as such by the State Government under Section 165(6) of the Code. It is relevant here to state that both the enactments, i.e. Madhya Pradesh Land Revenue Code and Madhya Pradesh Co-operative Societies Act are State enactments. Therefore, in the case, the submission of Shri Baghel is accepted, i.e. in view of Section 165(9) of the Code society has the right to sell interest of any class of people including the aboriginal tribe, it takes away what has been given by the legislature in Section 41-A(5) of the Act i.e. prohibition on transfer of land of an aboriginal tribe. It is well known rule of construction that such a course cannot be lightly assumed by a Court of law while interpreting the provisions of the statute. In my opinion, Section 165(9) of the Code deals with all classes of people and the society's right to recover such advance. Section 165(9) of the Code has been enacted to over- come the rights and liability of the Bhumiswami vis-a-vis other provisions of Section 165 of the Code. Therefore, provisions of Section 165(9) can be invoked by the society and the other provisions of Section 165 shall not stand R. F. 8 in its way. Section 165(9) of the Code specifically contemplates of non-application of the main section regarding the right of the society and it nowhere affects the operation of the Madhya Pradesh Co- operative Societies Act. Therefore in my opinion the provisions of Section 165(9) of the Code shall in no way control the operation of Section 41-A(5) of the Act. Further Section 41-A(5) of the Act is a special provision enacted for the Welfare of the aboriginal tribe on matters of sell of their property and in my opinion this special provision shall prevail and the matter shall not come within the general provisions of Section 165(9) of the Code.”

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16) In the matter of Usha Mirani (supra), the Hon’ble Supreme Court

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in paras 8 & 12 held as under:-

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“ 8 . Section 165(7) of the Code reads thus: "165.Rights of transfer.- xxxxx xxxxx xxxxx

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(7) Notwithstanding anything contained in sub- section (1) or in any other law for the time being in force-

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(a) xxxxx xxxxx xxxxx

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(b) no land comprised in a holding of a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) shall be liable to be attached or sold in execution of any decree or order;

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(c) xxxxx xxxxx xxxxx:

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Provided that nothing in this sub-section shall apply where a charge has been created on the land by a mortgage."

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12. The argument raised by learned counsel for the petitioners that since there was no objection by the holder of the land and also that the petitioners being subsequent purchasers, the provisions contained in Section 170-B of the Code would not be attracted, has no substance because in view of express bar under Section 165(7) of the Code, the consent of the tribal holder, even if treated as correct, would not make the provision of law inoperative. It is settled law that there is no estoppel against operation of law.”

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17) From a perusal of the judgment passed by the High Court of Madhya Pradesh in the matter Chandrawati (supra), the Court while dealing with a similar issue with regard to the auction of property belonging to a member of an aboriginal tribe had taken care of Section 41-A(5) of the Act of 1960 and it was held that the property belonging to a member of the aboriginal tribe cannot be put for auction without exhausting provision of Section 165(c) of the Code of 1959.

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18) In the matter of Motilal (dead) (supra), the Coordinate Bench of this Court categorically held that while putting for auction the property mortgaged by the aboriginal tribe, there is no need to obtain permission from the Collector according to the provisions of Section 165(6) of the Code of 1959. In that judgment, the provisions of Section 41-A(5) of the Act of 1960 were also considered but at the same time, the judgment passed in the matters of Chandrawati (supra) and Usha Mirani (supra) were not taken care of. In the subsequent judgments of this Court where the proper care was taken with regard to Section 165(6) of the Code of 1959 as well as Section 41-A(5) of the Act of 1960, in two judgments, it

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was held that the property belonging to a member of an aboriginal tribe cannot be put for auction by the Cooperative Banks without obtaining permission according to Section 165(6) of the Code of 1959.

¶108

19) The judgments relied on by Mr. Sahu, in Uco Bank (supra) and Arun Agrawal (supra) , were the matters where the Debt Recovery Tribunal passed the judgment for the auction of the property and the Hon’ble Supreme Court held that in such a situation when the property has been put for auction by the Debt Recovery Tribunal, being central legislation, it will prevail over the provisions of the State legislation in view of Section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. But in the present case, the issue involved is within Section 165 of the Code of 1959 and Section 41-A(5) of the Act of 1960, therefore, the judgments relied on by Mr. Sahu are not relevant to the present issue.

¶109

20) Taking into consideration the law laid down by the High Court of Madhya Pradesh and subsequently followed by the Coordinate Bench of this Court, I have no hesitation in holding that the property of respondents No. 5 & 6 which was put up for auction by respondents No.7 & 8 without obtaining permission from the concerned Collector according to the provisions of Section 165(6) of the Code of 1959 was erroneous and therefore, the same is set aside. Consequently, the present petition is dismissed.

¶110

Rekha

Heera Singh And Ors. v. State Of Chhattisgarh And Ors.

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Heera Singh And Ors. v. State Of Chhattisgarh And Ors.

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