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Chhattisgarh High Court · body

2009 DIGILAW 217 (CHH)

SUBHADRA DEVI GUPTA. v. GENDURAM

2009-08-17

N.K.AGARWAL

body2009
ORDER The instant petitions, being identical in nature, are disposed of by this common judgment and order. 1. These petitions are directed against the order dated 31-1-1996, passed by the Sub Divisional Officer (Revenue), Balod, Distt. Durg (for short 'SDO'), and order dated 21-7-1997, passed by the Additional Collector whereby and where under both the Courts below have directed the petitioner to pay the cost of the suit land as compensation to the respondent No.1, and in default, the land shall be reverted back to respondent No.1 under the provisions of Section 170B of C.G. Land Revenue Code, 1959 (for short 'the Code'). 2. The brief facts of the case as per petitioner are that, the petitioner purchased the suit land from respondent No.2 vide registered sale-deed. The respondent No.2 had purchased the disputed land from Genduram (Tribal), i.e., respondent No.1 after completing all the formalities as required under Section 165 (6) of the Code. After its purchase, the petitioner constructed a house over the suit land in the year 1978-79 and since then she is living in the house alongwith her family members. 3. The SDO initiated revenue cases. In the said cases, the petitioner was never served with the notice. The appearance of her son and husband in the case cannot be said to be appearance on behalf of the petitioner. The SDO, vide order dated 31-1-1996, passed the order in both the cases whereby it has been directed to the petitioner to pay the cost of the suit land as compensation to the respondent No.1, and in default, the land shall be reverted back to respondent No.1 under the provisions of Section 170-B of the Code. 4. Being aggrieved by the said order, the petitioner preferred an appeal before the Additional Collector alongwith an application under Section 5 of the Limitation Act. The Additional Collector, after hearing the parties, dismissed the appeal on 21-7-97, affirming the order passed by the SDO. It was also held in the order that the appeal are not only barred by limitation but have also no merit. Hence this petition. 5. Shri Surana, learned Counsel appearing for the petitioner would submit that the petitioner is bona fide purchaser of the suit land. It was also held in the order that the appeal are not only barred by limitation but have also no merit. Hence this petition. 5. Shri Surana, learned Counsel appearing for the petitioner would submit that the petitioner is bona fide purchaser of the suit land. The petitioner purchased the suit land from respondent No.2, who in turn, purchased the same land from respondent No.1 after obtaining permission under Section 165 (6) of the Code, 1959, and therefore, merely on the ground that the petitioner did not notify all the information to the SDO as to how she has come in possession of such land within the period prescribed there for the SDO has passed the order, which is contrary to provisions of Section 170-B of the Act, and also runs counter to the judgments of Division Bench's in cases of Dhirendra Nath Sharma Vs. State of M.P. and another-1 and Atmaram and another Vs. State of MP-2. 1. 1985 MPLJ 786 2. 1995 MPLJ 633 6. Per contra, Shri Vimlesh Bajpai, learned Counsel for respondent No.1 and Shri Satish Gupta, Govt. Advocate would submit that undisputedly the petitioner was in possession of the disputed land which belong to member of aboriginal tribe Genduram son of Indal Gond and she failed to notify the SDO within two years of the commencement of the Land Revenue Code (Amendment) Act, 1980, as to how she came in possession of such land, and in these circumstances, a presumption has been drawn under sub-section (2) of Section 170-B of the Code that the petitioner is in possession of disputed land without any lawful authority. The Revenue Tribunal passed the impugned order after conducting due enquiry as contemplated under sub-section (3) of Section 170-B of the Code after affording due opportunity of hearing. 7. I have heard the Counsel appearing for the parties, perused the orders passed by the Courts below. 8. The relevant facts and pleadings of the respective parties have already been mentioned in detail in the foregoing paragraphs. Before considering the rival submissions made by the parties, it would be appropriate to advert to the provisions of Section 170-B of the Code. Section 170-B of the Code was inserted by M.P. Amendment No. 15 of 1980 (24-10-1980). 8. The relevant facts and pleadings of the respective parties have already been mentioned in detail in the foregoing paragraphs. Before considering the rival submissions made by the parties, it would be appropriate to advert to the provisions of Section 170-B of the Code. Section 170-B of the Code was inserted by M.P. Amendment No. 15 of 1980 (24-10-1980). Section 170-B reads as under:- "170-B. Revision of land of members of Aboriginal Tribe which was transferred by fraud.- (1) Every person who on the date of commencement of Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as 'the Amendment Act of 1980') is in possession of agricultural land which belonged to a member of a Tribe which has been declared to be an Aboriginal Tribe under sub-section (6) of Section 165 between the period commencing on the 2nd 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 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 land. (2) If any person fails to notify the information as required by subsection (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural 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." 9. In the matter of Dhirendra Nath Sharma1 (supra), in Para 12 of the order it has been held thus: "72. Section 170-B was inserted later for the same purpose with a view to cover the remaining transfer of agricultural land belonging to tribals under which they had been exploited resulting from their unequal bargaining capacity at the time of the transaction. By enacting Section 170-B, a duty was cast on every person in possession of agricultural land, which belonged to a tribal at any time between 2nd October, 1959 and the date of commencement of the Amendment Act of 1980 to notify the Sub Divisional Officer within the period specified in the prescribed manner all the information as to how he had come in possession of such land. Obviously, the provision enacted in Section 170-A for initiation of the proceedings was not found sufficient and, therefore, such a provision became necessary to ensure that every such transaction of transfer of land belonging to a tribal at any time after 2nd October, 1959 when the M.P. Land Revenue Code, 1959 came into force was brought to the notice of the Sub Divisional Officer to enable examination of its validity on the basis of information supplied by the person in possession. Sub-section (3) provides that on the receipt of such information, the Sub Divisional Officer shall make such inquiry as may be deemed necessary about all such transactions of transfer and if he finds that the tribal transferor has been defrauded, the transaction shall be declared null and void and an order would be made revesting the agricultural land in the tribal transferor or his legal heirs, as the case may be. The order contemplated by sub-section (3) is to be passed only as a consequence of a finding reached after due enquiry that in the transaction of transfer, the tribal transferor had been defrauded of his legitimate right. Unless such a conclusion is reached no question arises of declaring the transaction null and void and passing an order revesting the agricultural land in the tri bal transferor or his legal heirs." In Paragraph 13, it has been held that "sub-section (2) of Section 170B merely lays down rule of evidence where a person in possession fails to notify the information within, the specified period, a presumption is available that the possession of the agricultural land is without any lawful authority and the land stands reverted to the transferor or his legal heirs, as the case may be. The rule of evidence contained in sub-section (2) provides for such a presumption which dispenses with any further enquiry and the final order as contemplated in sub-section (3) is required to be made on the basis of presumption arising under sub-section (2). However, it has been further held that in all the cases including the cases in which the presumption under sub-section (2) is available, the final order as contemplated by sub-section (3) has to be made and only after such order is passed, results in declaration that the transfer is null and void and the agricultural land re-vests in transferor or his legal heirs." 10. In the matter of Atmaram-2 (supra), while dealing with Section 4 of the Evidence Act of1982, it has been held that sub-section (2) of Section 170-B of the Code merely uses the word "shall be presumed" and does not indicated that it shall amount to conclusive proof, and therefore, it does not bar any evidence being adduced for the purpose of disproving it. The presumption under sub-section (4) must, therefore, be regarded as a rebuttable presumption. Referring to Dhirendra Nath Sharma s case-1, it has been held that in a case governed by sub-section (2) of Section 170-B of the Code also enquiry after show-cause notice is necessary where in reply to the show-cause notice the vendee appears before the Court and adduces evidence in support of his contention that his possession is by lawful authority and if the SDO is satisfied on the material before him as was produced by the vendee or received from other sources that the vendee's possession is based on lawful authority, the presun1ption is rebutted. 11. I am in respectful agreement with the principles of law laid down in the above cited judgments. 12. By applying the principles of law laid down in the aforesaid matters in the facts of the present case, it is observed that Genduram was the recorded owner of the disputed agricultural land between the period commencing on 2nd October, 1959 and the commencement of the Act of 1980. Undisputedly, and as per the findings of the SDO based on evidence led by the parties, the petitioner was in possession of the disputed land who constructed house thereupon before 1-1-1984. It is also not in dispute that the petitioner did not notify the SDO all the information as to how she comes in possession of such land. On receipt of notice from SDO, the petitioner's son and husband appeared and filed reply to the effect that the land has been purchased without contravening the provisions contained in Section 165 (6) of the Code, but to prove this fact, nothing has been brought on record by the petitioner. She has also failed to explain as to why she did not notify about her possession in accordance with provisions of Section 170-B of the Code to the SDO. She has also failed to explain as to why she did not notify about her possession in accordance with provisions of Section 170-B of the Code to the SDO. For the aforesaid reasons, the SDO, drawing a presumption under sub-section (2) of Section 170-B of the Code, and after holding inquiry under sub-section (3) of Section 170-B of the Code, held that the petitioner failed to rebut the presumption that the petitioner is in possession of the land without any lawful authority, and she is bona fide purchaser of the disputed land and held that the transaction is not bona fide. 13. From the above facts, it is clear that the petitioner was in possession of the disputed agricultural land and constructed house thereupon before 1-1-1984. She did not notify the SDO about her possession within the specified period by filing return in this behalf The SDO, after due enquiry and after affording opportunity of hearing to the petitioner as envisaged under sub-section (3) of Section 170-B of the Code, passed the impugned order in accordance with provisions contained in Section 170-B (3) (b), which has been affirmed by the Additional Collector. 14. Therefore, on the basis of aforesaid discussion, I am of the considered opinion that there is no illegality or infirmity in the impugned order which warrants interference in exercise of powers under Article 227 of the Constitution of India. 15. It is well settled principle of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. 16. Accordingly, the petitions being devoid of substances are hereby dismissed. However, looking to the facts that operation of the orders passed by the Court below was stayed by this Court, it is directed that, in case the petitioner pays the amount to the respondent No.1 as directed by the SDO in his order within a period of two months from today, then the petitioner shall not be dispossessed/evicted from the suit land. No order as to costs. Petition Dismissed.