Dankeshwar Netam Vs State of Chhattisgarh

Vikas Sahu S/o Shri Rajnarayan Sahu Aged About 35 Years R/o Nehru Chowk, P.S. City Kotwali, Baloda Bazar, TehsilBaloda Bazar, District- Baloda Bazar-Bhatapara, C.G.

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Rituraj Sahu S/o Shri Rajnarayan Sahu Aged About 33 Years R/o Nehru Chowk, P.S. City Kotwali, Baloda Bazar, TehsilBaloda Bazar, District- Baloda Bazar-Bhatapara, C.G.

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Vivek Sahu S/o Shri Rajnarayan Sahu Aged About 34 Years R/o Nehru Chowk, P.S. City Kotwali, Baloda Bazar, TehsilBaloda Bazar, District- Baloda Bazar-Bhatapara, C.G.

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District Registrar Revenue Department Baloda Bazar, DistrictBaloda Bazar-Bhatapara, C.G.

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Sub Registrar Revenue Department Baloda Bazar, DistrictBaloda Bazar-Bhatapara, C.G.

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... Respondents

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2

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For Petitioner : Mr. Prakash Tiwari, Advocate For Respondent No.1, 2, 6 & 7 : Ms. Upasana Mehta, Govt. Advocate For Respondent No.3, 4 & 5 Mr. Anurag Sinha, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu Order on Board

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24/11/2025

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Petitioner has filed this writ petition seeking following reliefs:“10.1. The Hon’ble Court may kindly be pleased to call for the entire records relating with the Instant Petition.

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10.2. The Hon’ble Court may kindly be pleased to set aside the Order dated 04.08.2025 passed by the District Registrar (Respondent No.6) Baloda Bazar.

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10.3. The Hon’ble Court may kindly be pleased to direct the respondents to grant the petitioner, the necessary permission to sell the land in question, recognizing his lawful right to do so without unwarranted obstruction or interference. (And/or).

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10.4. The Hon’ble Court may kindly be pleased to direct the respondent authorities to process the registration of Sale-deed executed between petitioner and Respondent No.3 to 5 as per law without the permission required U/s 165 of Chhattisgarh Land Revenue Code – 1959 (And/or).

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10.5. The Hon’ble Court may kindly be pleased to direct the respondent authorities to grant the necessary permission to sell the land in question.

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10.6. The Hon’ble Court may kindly be pleased to pass any other orders/direction to respondent No.2 to enquire upon the discrepancy/parity of orders

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between collectors of different district upon the given factual/legal scenario.

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10.7. The Hon’ble Court may kindly be pleased to pass any other orders/direction that, this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

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Learned counsel for petitioner submits that petitioner is a member of scheduled tribe community. The land, subject matter of writ petition, is a ownership land of petitioner and copy of revenue record evidencing said fact is filed as Annexure P-2, which is Khasra Panchsala wherein in Column-8 description of land is mentioned as ‘bhumiswami’ and ‘diverted’. It is a diverted land. He further submits that a pakka house is constructed over the land in question. Petitioner being in need of money entered into agreement to sell of house constructed over his ownership land to respondent No.5. On being advised, petitioner submitted an application before the Collector, Balodabazar Bhatapara seeking permission to sell. When petitioner’s application was not considered and decided, he preferred WPC No.2570/2024, which was disposed of with a direction to the Collector (respondent No.1 therein) to take decision on the pending application of petitioner. Proceeding on the application of petitioner for grant of permission was initiated, however, it was erroneously rejected by the Collector vide order dated 20.11.2024. Petitioner preferred an application

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before the respondent No.1 seeking review of order dated 20.11.2024, which was also rejected vide order dated 17.1.2025 as not maintainable. Thereafter petitioner approached respondent No.7 to register the sale deed, which was denied vide order dated 18.3.2025 for want of permission under Section 165 (6) of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code of 1959’). Petitioner preferred an appeal against the order dated 18.3.2025 before respondent No.6, which was also dismissed vide order impugned.

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Learned counsel for petitioner submits that the land, subject matter of sale agreement, is not the agriculture property but it is a residential house situated over ownership and diverted land of petitioner and therefore, there is no requirement of seeking prior permission of the Collector / Competent Authority as per Section 165 (6) of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code of 1959’), He next contended that the Collector Bilaspur and Raipur dealing with similar situation have passed the order recording that provisions of Section 165 (6) of the Code of 1959 would not apply to transfer of building constructed over developed land even if it is owned by a member belonging to scheduled tribe community. Coordinate Bench of this Court also in WPC

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No.1992/2025 has observed that provisions of Section 165 (6) of the Code of 1959 would not apply in such a situation.

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Learned State Counsel opposes submissions of learned counsel for petitioner. He, however, does not dispute applicability of provisions of Section 165 (6) of the Code of 1959 in facts of the case, as also order passed by the Coordinate Bench of this Court.

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Learned counsel appearing on behalf of respondent No.5 supported the submissions made by learned counsel for petitioner.

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Heard learned counsel for respective parties and perused documents filed along with writ petition.

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Perusal of documents of land filed along with writ petition as Annexure P-2 would show that petitioner is having land in his name bearing Khasra No.3435/1 measuring 0.0160 hectare. In Khasra panchsala at Page No.26, in Column-8 there is clear mention that land is owned by petitioner and it is a diverted land. In Column No.10 it is mentioned, a pakka residential house. Agreement to sell is dated 9.11.2023 and it filed as Annexure P-3 in which description of land is mentioned as “Pakka House / shop situated over diverted land bearing Khasra No.3035/1 area 0.0160 hectare”.

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Annexure P-5 is the order dated 11.6.2024 by which writ petition preferred by petitioner bearing WPC No.2570/2024

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was disposed of directing respondent No.1 therein to take decision on pending application of petitioner for grant of permission to sell. Pursuant thereto, application of petitioner was rejected vide order dated 20.11.2024. Thereafter petitioner preferred an application for review of the order on 28.11.0245 which also came to be dismissed vide order dated 17.11.2025. Then, petitioner submitted sale deed prepared between the parties before the Sub-Registrar, Balodabazar for registration which was returned back on 13.3.2025 observing that as per provisions of Section 165 (10) of the Code of 1959, the Deputy Registrar is bound to follow the provisions under Section 165 of the Code of 1959 and refused to register the documents in view of provisions contained in Rule 35 of the Registration Rules, 1939 (Clause M-4 and M-5). Against the order of Sub-Registrar an appeal was preferred before the Registrar which came to be dismissed vide order dated 4.8.2025.

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In case of Mewalal Kanhaiyalal vs. Jankibai, reported in 1993 Law Suit (MP) 218, the High Court of Madhya Pradesh while considering issue of sale of a residential house by a aboriginal tribe in favour of non-tribe, has observed thus:-

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“13.There is another question which has to be considered along with this case. Whether the sale of a house is prohibited under Section 165 (6) of the Code? In 1981 Revenue Nirnaya 13, (High Court) Justice B.

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C. Verma (as he then was) held that no permission was required for sale of house as such keeping in view the finding recorded by the trial Court. I am of the view that lower Appellate Court committed a mistake in setting aside the finding recorded by the trial Court. It cannot be held that the transfer of the house was bad in law because of the bar under Section 165(6) of the Code. In view of this, the finding recorded in para 38(2) of the judgment is set aside and it is held that the sale of house vide Ex. P. 4/D. 3 was not hit by Section 165(6) of the Code. “

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The issue whether sale of a house is prohibited under Section 165 (6) of the Code of 1959 came up for consideration before the Coordinate Bench of this Court in case of Nand Kumar vs.Mayaram & ors, reported in 2022 Lawsuit (Chh) 609 and it was has held thus:-

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“16.From the pleadings and material on record it is not in dispute that suit property is situated at Abadi land and within the Nagar Panchayat, and not agriculture land therefore, this court has to see whether provisions of Section 165 (6) and (7) as well as Section 170-B of the Land Revenue Code are applicable or not and whether without permission of the Collector the suit property can be sold by the defendant No. 1 to the plaintiffs. From the pleadings and material on record it is qite vivid that the suit property is situated at Abadi land and not a agriculture land therefore, from the provisions of the Land Revenue Code it is clear that the permission of the Collector before selling of the property is not at all required. This issue has come up for consideration before Hon'ble High Court of

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Madhya Pradesh in case of Aildas vs Board of Revenue 2 wherein Hon'ble Division bench has held as under:-

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Agreeing with the view of the learned Judges constituting the said Division Bench, we are of opinion that Sub-section (5) of Section 165 and Section 170 of the M. P. Land Revenue Code, 1959, cannot be made applicable to Nazul lands situated in urban areas. In this view of the matter, the decision of the Board of Revenue is liable to be quashed, as neither Section 165 (6) of the M. P. Land Revenue Code, 1959, nor Section 170 of the said Code, nor the provisions of the C. P. Land Alienation Act, 1916, would be applicable to the instant case, where the predecessor of the fourth respondent sold a house situated on Nazul land in an urban area. For that reason we quash the order of the Board of Revenue and we restore the order passed by the Commissioner, Bilaspur Division, dated 26-11-1969 (Petitioner's An-nexure-D), which, in our opinion, represents the correct legal position.

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17)Similar view has been taken by the Hon'ble High Court of Madhya Pradesh in case of Mewalal Kanhaiya Lal vs. Janki Bai 3 in para 12 and 13 which reads as under:-

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I have considered arguments of learned counsel for the appellant. Firstly - In relation of sale of house vide Ex. P. 4/D. 3. The finding recorded by the trial Court was that there was no fraud played by Mewalal and that the sale deed executed with consideration. It was also held that the registration was done be- fore the SubRegistrar at Khargone. The endorsement on the

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sale deed discloses payment of consideration before the Sub- Registrar. In these circumstances it cannot be said that no payment was received by the plaintiff, under sale deed Ex. D-3. The proposition that when endorsement is made in respect of payment of consideration before the Sub-Registrar, it will be presumed that the payment has been made. In AIR 1948 Nag. 110 it has been clearly stated that endorsement proves the payment of consideration before the Sub-Registrar unless it is AIR 1973 MP 130 1994 MPLJ 868 rebutted by very strong evidence. Sub-Registrar has not been examined nor any one else to show that no payment was made.

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There is another question which has to be considered along with this case. Whether the sale of a house is prohibited under Section 165 (6) of the Code? In 1981 Revenue Nirnaya 13, (High Court) Justice B. C. Verma (as he then was) held that no permission was required for sale of house as such keeping in view the finding recorded by the trial Court. I am of the view that lower Appellate Court committed a mistake in setting aside the finding recorded by the trial Court. It cannot be held that the transfer of the house was bad in law because of the bar under Section 165(6) of the Code. In view of this, the finding recorded in para 38(2) of the judgment is set aside and it is held that the sale of house vide Ex. P. 4/D. 3 was not hit by Section 165(6) of the Code.

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18)Similar view has been taken by the Madhya Pradesh High Court in case of Nandramji Gupta vs Heeralal 4. 19)Therefore, it is quite clear that the sale deed can be executed without leave of the Collector as it is Abadi land situated within the limits of Nagar Panchayat not being an agricultural land.

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Taking into consideration the above decisions and the facts of case that the land over which residential house is constructed is the ownership land of petitioner, it is a diverted one and it is not agriculture land, I am of the considered view that no permission, as per Section 165 (6) of the Code of 1959, is required for sale of house constructed over a diverted nonagriculture land by an ab-original tribe to non-tribe.

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Consequently, the writ petition is allowed. Respondent No.7 is directed to proceed in accordance with law and register the sale deed to be presented by petitioner in favour of respondent No.3 in respect of the house/shops constructed over the diverted land, subject matter of this writ petition, unless there is any other impediment against registration.

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Certified copy as per rules.

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Sd/-

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(Parth Prateem Sahu)

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Judge

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roshan/-

Dankeshwar Netam v. State of Chhattisgarh

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Dankeshwar Netam v. State of Chhattisgarh

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