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2014 DIGILAW 61 (CHH)

MARSA BAXLA v. NEERA BAI

2014-02-12

MANINDRA MOHAN SHRIVASTAVA

body2014
ORDER 1. This petition has been filed by the petitioners assailing the correctness and validity of order dated 31.01.2005 passed by the Board of Revenue, whereby, the Board of Revenue has affirmed the order passed by the Subordinate Revenue Courts directing return of land to respondent-Neera under Section 170(B) of the Land Revenue Code. 2. Brief factual matrix necessary for adjudication of claim of the petitioners as stated in the petition is that the land in dispute originally belonged to one Jagatram, father of Neera and Chandrawati. A sale deed was executed by Jagatram in favour of Piyush Baxla (husband of the petitioner No.1 and father of petitioners No.2 to 5) on 25.04.1987 by which an agricultural land admeasuring one acre was sold for a consideration of Rs. 4,000/-. Jagatram died in the year 1996. Thereafter, on 11.09.2000, The respondents Neerabai and Chandrawati moved an application before the Sub-Divisional Officer praying for a direction to return the land allegedly sold by their father Jagatram to Piyush Baxla stating that no sale transaction had taken place and the respondent-Gouribai had fraudulently grabbed the land under a benami transaction of sale by Jagatram in favour of Piyush Baxla. After allowing the non-applicants therein to file reply and recording evidence, the Sub-Divisional Officer came to the conclusion that the transaction of sale was an outcome of fraudulent design and directed return of land. The order was challenged in appeal before the Collector. Though, the Collector upheld finding with regard to fraudulent transaction remanded the matter to make necessary enquiry with regard to legal representatives of the deceased Jagatram. Aggrieved by order of the Collector, a revision was preferred by the petitioner alongwith Gouribai which has also been dismissed giving rise to this petition. 3. Assailing correctness and validity of impugned order passed by the Board of Revenue, learned senior counsel for the petitioner contended that the Revenue Courts have completely misdirected themselves in holding the transaction as fraudulent ignoring that for well over 9 years when Jagatram was alive, no complaint was made to anyone. He further submits that there is no material collected during enquiry by the Sub-Divisional Officer to come to the conclusion that the consideration paid was highly disproportionate and inadequate so as to draw inference of grabbing of land under the garb of sale deed. He further submits that there is no material collected during enquiry by the Sub-Divisional Officer to come to the conclusion that the consideration paid was highly disproportionate and inadequate so as to draw inference of grabbing of land under the garb of sale deed. He further submits that the widow and two sons namely Ramsingh and Keshavram never raised any dispute nor supported the case of the respondents in proceedings under Section 170(B). Merely because at the time of enquiry, Gouribai was found maintaining the property and cultivating the land as power of attorney holder of Piyush Baxla, it cannot be held that the entire transaction was fraudulent. 4. On the other hand, learned counsel for respondents 1 & 2 submits that in order to come to the conclusion that the transaction was fraudulent in nature, the Courts below have taken into consideration that the agricultural land is being cultivated by Gouri who is a non tribal. Piyush Baxla does not come to cultivate the land and he is said to be working at different place at Vishakhapatnam and sometimes at Village - Kachabari, Tahsil-Chhota Nagpur, Ranchi and he is not permanently residing in the village but mostly stays elsewhere. In his submission, these established circumstances are sufficient to draw an inference of fraudulent transaction. It is also submitted that no permission under Section 165 (6) of C.G. Land Revenue Code, 1959 was taken which also is a circumstance leading to inference of fraudulent transaction. Therefore, there is no perversity or illegality in the orders passed by the Revenue Courts. 5. It is not in dispute that Jagatram sold agricultural land admeasuring one acre to Piyush Baxla, who is also a tribe. The sale deed was executed on 25.4.1987. Jagatram died in the year 1996. There is no material placed before this Court nor rel1ected from the order of SDO, Collector or Board of Revenue that during his life time, Jagatram made any complaint to anyone much less before the Sub-Divisional Authority, the SDO, complaining that he has been defrauded of his legitimate rights. Further, there is nothing in the order passed by the Revenue Authorities to show that under certain compelling circumstances resulting in unequal bargaining capacity, Jagatram was compelled by Gouribai I to execute sale deed in favour of Piyush Baxla either as a security towards repayment of loan or for any other reason. 6. Further, there is nothing in the order passed by the Revenue Authorities to show that under certain compelling circumstances resulting in unequal bargaining capacity, Jagatram was compelled by Gouribai I to execute sale deed in favour of Piyush Baxla either as a security towards repayment of loan or for any other reason. 6. The application for return of land was filed by Neera and Chandrawati, who happened to be the married daughters of deceased Jagatram. Learned counsel for the respondents could not bring to the notice of this Court any statement, affidavit or declaration of widow of Jagatram, Rambai or his two sons supporting the allegations of fraud raised by Neera and Chandrawati. The order passed by the revenue authorities goes to show that on the circumstance that Gouribai was acting as power of attorney holder and agent of Piyush Baxla and is cultivating the land and Piyush Baxla was not permanently residing in village but residing at different places in connection with certain job, the Courts below have come to the conclusion regarding fraudulent transaction. 7. The legislature has enacted under Section 170(B) in order to ensure that the lands of tribal are returned to them if it has been grabbed by others by defrauding the tribes of their legitimate rights. Therefore, before ordering return of land, there has to be strong material warranting inference of fraudulent transaction. The proved circumstances of this case, even if it is taken on its face value, cannot be said to be sufficient to draw inference of fraudulent action. This is more so because the SDO has not recorded any finding that the consideration of Rs. 4,000/- at the time of transaction of sale in that particular area of village-Patewa was highly inadequate. No such details were collected during the enquiry. 8. In so far as grant of permission as required under Section 165 (6) of the Land Revenue Code in the matter of transaction of .sale vide sale decd dated 25.04.1987 is concerned, undisputedly, the transaction was between the tribes and it is not a case where a tribal sold the land to a non-tribal. Therefore, in view of clear and explicit provisions contained in sub-section (1) of Section 165 of the Code, such permission was not necessary. Drawing of an inference on such circumstances is fallacious. 9. Therefore, in view of clear and explicit provisions contained in sub-section (1) of Section 165 of the Code, such permission was not necessary. Drawing of an inference on such circumstances is fallacious. 9. The submission of learned counsel for the petitioner that in the matter of transaction between the tribal to tribal also, the provisions of Section 165(6) become applicable requiting sanction of the Collector, cannot be accepted in view of the specific language of the provisions contained in Clause (II) Sub-Section (6) of Section 165 of the Land Revenue Code. The use of words a person not belonging to such tribe sufficiently indicates that the transaction with a person belonging to tribe is outside the rigor of sub section 6 of Section 165. The judgment of the Supreme Court in the case of Bhaiji vs. Sub-Divisional Officer, Thandla and others, 2003(1) SCC 692 , is not applicable in the present case. That was a case where the Supreme Court considered the scope and ambit of provisions contained in Section 170(B) of the Land Revenue Code to hold that there is nothing in those provisions to come to the conclusion that Section 170(B) will not apply where transaction has taken place between the tribal and tribal. This was so because the Supreme Court did not find any specific provision otherwise. However, in so far as provisions contained in Section 165(6) of the Land Revenue Code is concerned, there is a specific provision in that regard as referred to herein above. Therefore the submission that permission was necessary cannot be accepted and has to be rejected. 10. In view of the above analysis, the order of SDO and orders passed in appeal as well as in revision, cannot be sustained in law and are liable to be set aside and accordingly set aside. The petition is accordingly allowed. No order as to costs. Petition Allowed.