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2014 DIGILAW 78 (CHH)

VIJAY BEN PATEL v. STATE OF C. G.

2014-02-20

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. The substantial questions of law formulated and to be answered in this second appeal are as under:" (i) Whether both the Courts below were justified in dismissing the suit of the plaintiffs holding that the plaintiffs' suit is hit by Section 158(3) as well as Section 165(7-b) of the Chhattisgarh Land Revenue Code (for short "the Code") ignoring the fact that the plaintiffs have purchased the suit land from one Kaji Abdul on 11/03/1988, whereas Section 158(3) as well as Section 165 (7-b) of the Code came into force from 28/10/1992? (ii) Whether both the Courts below were justified in dismissing the suit of the plaintiffs holing that alienation without permission of the Collector as contained in Section 165(7-b) of the Chhattisgarh Land Revenue Code (in short 'Code') is void holding Section 165(7-b) of the Code to be mandatory in nature?" 2. In order to answer the afore-stated substantial questions of law, required facts in nutshell, are as under: 2.1 The plaintiffs commenced in action for declaration of their title and possession stating inter alia that they are title holder of land bearing Khasra No. 26/9 area 5.00 Acres and the order of Additional Collector dated 24/01/1994 declaring the order of settlement in favour of the erstwhile owner Shri Kaji Abdul is bad in law and in alternative decree for possession be also granted. 2.2 It was further pleaded that the scheduled land was settled in favour of Shri Kaji Abdul son of Kaji Abdul Kadar by Tahsildar, Kondagaon in the year 1984-85 on the recommendation of 20 Points Program Committee as Shri Kaji Abdul was landless person and said Shri Kaji Abdul erstwhile owner sold the land to the plaintiffs by registered sale deed dated 11/03/1988. The aforesaid sale deed was declared void by Additional Collector by its order dated 24/01/1994 holding that such a transfer in violation of Section 165 (7-b) of the Code is void. It is pertinent to mention herein that earlier civil suit filed by Mohan Bhai Patel was dismissed 'as barred by limitation, but it has been held to be within limitation by the High Court of Madhya Pradesh, on challenge made by late Shri Patel thereafter the civil suit went for full trial. It is pertinent to mention herein that earlier civil suit filed by Mohan Bhai Patel was dismissed 'as barred by limitation, but it has been held to be within limitation by the High Court of Madhya Pradesh, on challenge made by late Shri Patel thereafter the civil suit went for full trial. 2.3 The defendants/State filed their written statement stating inter alia and taking a principal defence that the land was settled in favour of Shri Kaji Abdul on 10/07/1985 as a lessee under the provision of revenue book circular and he being the holder of the land from the State Government, not entitled to transfer without permission of the Collector in view of the provision contained in Section 165 (7-b) of the Code and alienation made on 11/03/1988 within two years and four months without permission of the Collector is void therefore, the Additional Collector after hearing', the said grantee revoked the Patta granted in his favour by order dated 24/01/1994 and declared the transfer void, as such, suit deserves to be dismissed. 2.4 The trial Court by its judgment and decree dated 12/07/2000 dismissed the suit finding inter alia that the land was settled in favour of Shri Kaji Abdul by order of the Revenue Officer dated 10/07/1985 and therefore, by virtue of provision contained in Section 165(7-b) of the Code, land could not have been transferred to the Mohan Bhai Patel, husband of plaintiff No.1 without permission in writing by the Collector therefore, the Additional Collector has declared the alienation null and void by order dated 24/01/1994 and dismissed the suit. 2.5 The First Appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeal filed by the plaintiffs. 2.6 Impugning the legal acceptability and sustainability of the judgment and decree dated 14/09/2001 passed by First Appellate Court in Civil Appeal No. 46-A/2000, the second appeal has been preferred by the plaintiffs, which has been admitted for final hearing on two substantial questions of law as stated in forgoing paragraph. 3. Mr. 2.6 Impugning the legal acceptability and sustainability of the judgment and decree dated 14/09/2001 passed by First Appellate Court in Civil Appeal No. 46-A/2000, the second appeal has been preferred by the plaintiffs, which has been admitted for final hearing on two substantial questions of law as stated in forgoing paragraph. 3. Mr. Prafull N. Bharat, learned counsel appearing for the appellants/plaintiffs would submit that both the Courts below have fallen into palable legal error in dismissing the suit of the plaintiffs as they have purchased scheduled suit land on 11/03/1988 from Shri Abdul Kaji, original holder of the land from the State Government, whereas Section 165(7-b) and Section 158(3) of the Code came into statue book with effect from 28/10/1992. He would further submit that Section 165 (7-b) of the Code is directory in nature, and non-compliance thereof would not make the transfer void therefore, judgment and decree passed by both the Courts below be set-aside and appeal be allowed. 4. Mr. Vinay Harit, Dy. Advocate General for the State/defendants would support the judgment and decree impugned and submit that Section 165 (7-b) of the Code is mandatory in nature and non-compliance of the mandatory provision would make the transfer void and therefore, appeal deserves to be dismissed. 5. I have, heard learned counsel appearing for the parties and perused the records of both the Courts below utmost circumspection. Answer to first substantial question of law 6. In order to appreciate the point raised, it would be profitable to refer Section 165 (7 -b) of the Code. Section 165(7 -b) of Chhattisgarh Land Revenue Code prior to 28/10/1992 was as under: (7 -b) Notwithstanding anything contained in sub sec. (1) a person who holds land from the State Government or whom right to occupy land is granted by the State Government or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes Bhoomiswami of such land. 7. Section 165 (7-b) of the Code was amended by Madhya Pradesh Land Revenue Code (Amendment) Act, 1992, No. 17 of 1992, which provides as under:- (ii) in sub-section (7-b), for the words "a person who holds land from the State Government" the words, figures and brackets "a person who holds land from the. 7. Section 165 (7-b) of the Code was amended by Madhya Pradesh Land Revenue Code (Amendment) Act, 1992, No. 17 of 1992, which provides as under:- (ii) in sub-section (7-b), for the words "a person who holds land from the State Government" the words, figures and brackets "a person who holds land from the. State Government or a person who holds land in Bhoomiswami rights under sub-section (3) of Section 158" shall be substituted. 8. Thus, after the amendment Section 165 (7-b) of the Code stands as under:- [(7 -b)] Notwithstanding anything contained in sub-section (1), [a person who holds land from the State Government or a person who holds land in Bhoomiswami rights under subsection (3) of Section 158] or whom right to occupy-land is Government lessee and who subsequently becomes Bhoomiswami of such land, shall not transfer such land without the permission of a revenue officer, not below the rank of a Collector, given for reasons to be recorded in writing.] 9. A close reading of above-stated amended provision would clearly show that a person who holds land from the State Government or a persons who holds lands in Bhoomiswami rights under sub-section (3) of Section 158 or whom right to occupy land is granted by the State Government and who subsequently becomes Bhoomiswami of such land, shall not transfer such land without the permission of a Revenue Officer, not below the rank of a Collector, given for reasons to be recorded in writing. The above stated provision has been made to restrict the transfer of the land, which has been granted on lease by the State Government to landless person and such person cannot be deprived of the land by any transfer except as permissiable under Section 165(7-b) of the Code. By virtue of amendment incorporated in 165(7-b) w.e.f. 28/10/1992, requirement of obtaining permission from Collector has also been made applicable to a person who holds land in Bhoomiswami rights under Section 158(3) of the Code. 10. Reverting back to the facts of the case it would appear that the erstwhile. By virtue of amendment incorporated in 165(7-b) w.e.f. 28/10/1992, requirement of obtaining permission from Collector has also been made applicable to a person who holds land in Bhoomiswami rights under Section 158(3) of the Code. 10. Reverting back to the facts of the case it would appear that the erstwhile. owner Kaji Abdul to whom the land was settled by the order of Revenue Officer dated 10/07/1985 in a duly constituted proceeding and the provision of Section 165(7-b) originally enacted contains a provision that a person who holds a land from the State Government or whom to occupy the land is granted by the State Government shall not transfer such land without the permission of the Revenue Office not below the rank of Collector given for reasons to be recorded in writing. 11. Thus, subsequent amendment w.e.f. 28110/1992 incorporating a person holding Bhoomiswami right under Section 158(3) of the Code will make no difference so far as the statutory obligation to take statutory permission from the Collector to transfer the said land was already there in the Section 165 (7-b) of the Code, even prior to amendment in the said provision, therefore, the plea of the appellants that Section 165(7-b) is not attracted in the said transfer is sans merit and it is accordingly rejected. Answer to second substantial question of law 12. The determination of the first substantial question of law brings me to the next substantial question of law as to whether transfer made in violation of Section 165 (7-b) of the Code is void and the order of Collector dated 24/01/1994 declaring such transaction void is in accordance with law. 13. Section 165 (7-b) of the Code is a provision contained in Chhattisgarh Land Revenue Code. The Chhattisgarh Land Revenue Code is welfare legislation, which has been enacted to protect the ownership right in the land of Scheduled Tribes and landless persons and therefore, the transfer of land, landless person has to be made only by statutory permission of Revenue Officer not below the rank of Collector given for reasons to be recorded in writing. Thus, it is statutory exception and it has to be construed strictly. 14. The question for consideration is whether the Section 165 (7-b) of the Code is directory in nature as contended by Shri Bharat, learned Counsel for the appellants. 15. Thus, it is statutory exception and it has to be construed strictly. 14. The question for consideration is whether the Section 165 (7-b) of the Code is directory in nature as contended by Shri Bharat, learned Counsel for the appellants. 15. It is also well settled that when negative words are used, the Court will presume that intention of legislature was that the provisions are mandatory in character. 16. The Supreme Court in case of Nasiruddin and others Vs. Sita Ram Agrawal (2003) 2 SCC 577 has held as under :- "37. The court's jurisdiction to -interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character." 17. Likewise, the Supreme Court in case of Meera Sahni Vs. Lieutenant Governor of Delhi and others (2008) 9 SCC 177 , while considering Section 8 of the Delhi Lands (Restrictions on Transfer) Act, 1972 which prescribes that no registering officer shall not register any document unless the transferor produces before such registering officer a permission in writing of the competent authority for such transfer. The Supreme Court, after considering the scheme of the Act has held that such provision has to be construed strictly and observed in Para 36 of the report, which reads as under:- "36. The Supreme Court, after considering the scheme of the Act has held that such provision has to be construed strictly and observed in Para 36 of the report, which reads as under:- "36. The Registering Officer who is required to register a document whereby the land is purported to be transferred by sale, mortgage, gift, lease or otherwise was statutorily under an obligation not to register any such document unless the person seeking to transfer the land produces before such registering officer a legal, valid and statutory pern1ission in writing of the competent authority for such transfer. The aforesaid exception provided in the Delhi Lands Act for grant of permission despite acquisition is a statutory exception and should be construed strictly in the light of the said provisions, namely, in the light of provisions of Sections 5 and 8 of the Delhi Lands Act." 18. The Supreme Court in case of Keshabo and another Vs. State of MP. and others (1996) 7 SCC 765 , considering the Section 165(6) of the M.P. Land Revenue Code held that obtaining permission for alienation of land was condition precedent from the competent authority in writing, if not taken the sale in contravention of said provision would be void. Paragraphs 3 & 4 of the report are as under:- "3. It is contended by the learned counsel for the appellants that the notification under sub-section (6) of Section 165 was published in 1977 and the sale having been made in 1960, the finding of the Tribunal that the sale is void, is not correct in law. We find no force in the contention. Section 165 (6) reads thus: "165(6) Notwithstanding anything in sub-section (1) the right of Bhoomiswami belonging to a tribe which has been declared to be 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 not be transferred 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." 4. A reading of this sub-section would also clearly indicate that the Bhoomiswami right belonging to a tribe, which has been declared to be aboriginal tribe by the State Government by a notification in that behalf, for the whole or part of the area to which the Code applies, shall not be transferred to a non-tribal person, not belonging to such tribe, without prior permission of the Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing. The Board of Revenue has pointed out that prior to the amendment in 1976, obtaining permission for alienation of the land was a condition precedent. If that condition precedent, viz., obtaining prior permission from the competent authority for reasons to be recorded therein was not taken, the sale in contravention of the Act, therefore, becomes void. It is a welfare legislation made to protect the ownership rights in the land of a Scheduled Tribe to effectuate the constitutional obligation of Articles- 39 (b) and 46 of the Constitution read with the Preamble. Economic empowerment of a tribal to provide economic democracy is the goal. Prevention of their exploitation due to ignorance or indigency is a constitutional duty under Article 46. Agricultural land gives economic status to the tiller. Therefore, any alienation of land in contravention of the above objectives is void. It is contended that the application under Section 170 [I] should have been filed within two years from the date of sale. Since the application was not so filed, the authorities were not right in directing entertainment of the application. It is not in dispute that the authority has jurisdiction suo motu to go into the violation of the statutory provisions. Even otherwise, since it is a beneficial legislation, the authorities are bound to give effect to constitutional policy; they are not devoid of jurisdiction, even if it is filed beyond limitation to entertain the applications. It is a matter of public policy and of discretion. Under these circumstances, we do not think there is any substantial question of law warranting interference." 19. It is a matter of public policy and of discretion. Under these circumstances, we do not think there is any substantial question of law warranting interference." 19. Having examined the legal position, bearing in mind the principle laid down therein and turning back to the facts of the present case and the following decisions of the Supreme Court particularly in Keshabo and another (supra), it is clear that obtaining permission for transfer of land was a condition precedent and without permission alienation made is void as Section 165 (7-b) of the Code is mandatory in nature. Thus, both the Courts below are absolutely and perfectly justified in dismissing the suit and appeal of the plaintiffs and as such, the finding is affirmed. 20. Recently, the Supreme Court in the case of Vishwanath Agrawal, S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288 has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:" 36. In Major Singh Vs. Rattan Singh (1997) 3 SCC 546 : AIR 1997 SC 1906 , it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. Manikrao (1999) 3 SCC 573 , it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High. Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem Vs. Karnaraka Electricity Board (2007) 14 SCC 138 : AIR 2008 SC 956 ." 21. Resultantly, the second appeal deserves to be and is accordingly dismissed and the decree passed by the two Courts below are hereby maintained. This view of ours has been fortified by the decisions of this Court in Abdul Raheem Vs. Karnaraka Electricity Board (2007) 14 SCC 138 : AIR 2008 SC 956 ." 21. Resultantly, the second appeal deserves to be and is accordingly dismissed and the decree passed by the two Courts below are hereby maintained. No order as to cost. A decree be drawn-up accordingly. Appeal Dismissed.