ORDER : (Narendra Kumar Vyas, J.) : 1) The petitioner has filed the present writ petition assailing the order dated 07.02.2005 passed by the Sub Divisional Officer, Kondagaon in Rev.Case No. 01/A-23/03-04 (Annexure P/5) by which the learned Sub Divisional Officer has directed the petitioner to return the land in question and also directed for deleting their names, adding the name of the respondent No.1 as Bhumiswami of the land. The petitioner has also preferred this writ petition assailing the Order dated 06.01.2006 passed by the Additional Collector, Narayanpur in Rev. Appeal No. 01/A-23/03-04 and order dated 19.01.2007 passed by the Revenue Board, Bilaspur, Circuit Court, Jagdalpur by which the order passed by the Sub-divisional Officer has been upheld. 2) The facts in brief as projected by the petitioners are that the petitioners are R/o Village Khachgaon, Tehsir Kondagaon, Distt. Bastar. In Village Khachgaon, one Dharma S/o Rupa was residing and was holding certain lands bearing Khasra No. 6 & 8/2, Area 2.50 and 1.10 Acres. As Dharma left the village and the petitioner No. 1 was cultivating the aforesaid lands for the last 25 years andhe made an application before the Tehsildar, Kondagaon for acquisition of rights over the said land due to long cultivation and the original Bhumiswami left the land. The Tehsildar registered the case, issued notices to Dharma as well as General Public. On 28.07.80 the original Bhumiswami Dharma appeared before the Tehsildar and his statement was recorded. In his statement Dharma deposed that he had left the village for last 25 years and is residing in Village Kanga with his son and he has given the aforesaid land to the petitioner No. 1 voluntarily. As nobody from the general public has made objection to the application filed by the petitioner No. 1, the Tehsildar vide order dated 27.08.80 passed the order and granted the Bhumiswami rights. The petitioner has also paid the compensation equal to 15 times of the land revenue to the original Bhumiswami Dharma as per Section 190(3) of the Land Revenue Code. Accordingly the name of the petitioner No. 1 was recorded as Bhumiswami in the Revenue Record in the year 1980-81. The petitioner has also paid the compensation equal to 15 times of the land revenue to the original Bhumiswami Dharma as per Section 190(3) of the Land Revenue Code. Accordingly the name of the petitioner No. 1 was recorded as Bhumiswami in the Revenue Record in the year 1980-81. 3) In the year 2003-04, respondent No. 1 made an application U/S 170-A & B of the C.G.L.R. Code contending that the land which is in possession of the petitioners was earlier recorded in the name of her husband Dharma and the petitioners taking the advantage of unsoundness of Dharma got their names recorded in the revenue records and the land be reverted back to her. On the basis of the application filed by the respondent No. 1, the respondent No. 4 registered a case and issued notices to the party. The petitioners submitted their reply mainly contending that the provisions of Section 170-A and 170-B of C.G.L.R. Code cannot be applied to the present case. The respondent No. 4 recorded the evidence of respondent No. 1 and thereafter passed the order in favour of respondent No. 1 on 07.02.2005. The petitioners have preferred an appeal before the Additional Collector/ respondent No.3 who vide order dated 06.01.2006 dismissed the same. Being aggrieved with this order the petitioners have preferred a revision before the Board of Revenue who vide impugned order dated 19.01.2007 (Annexure P/7) has dismissed the revision. The petitioners by way of this petition assailed the order dated 07.02.05, 06.01.06 and 19.01.07 passed by the revenue authorities. 4) Learned counsel for the petitioners would submit that Respondents No. 2 to 4 failed to consider the provisions of Section-170-B(3) of the Land Revenue Code which provides for an enquiry to be conducted by the Sub-divisional Officer as provided under Sub Section 3 of Section-170-B of Land Revenue Code. He would further submit that the respondents failed to appreciate the evidence adduced by Respondent No. 1 in which she had admitted the fact that her husband appeared before the Tehsildar and consented for mutation, she has further admitted that on the persuasions of the villagers she had made the application though she doesn't want to prosecute the case. He would further submit that respondent No.1 has further admitted that no fraud has been played with her. He would further submit that respondent No.1 has further admitted that no fraud has been played with her. He would further submit that the respondents have failed to consider that the actual transfer/possession of the land had occurred somewhere in the year 1954-55 as before the Tehsildar when Dharma was examined, he admitted that he had left the village for last 25 years. The statement of Dharma was recorded on 28.07.1980. The Revenue Records submitted before the Tehsildar also bear the entry that the Petitioner No. 1 is in possession of the land for last 22 years. The aforesaid evidence discloses that the possession of the petitioners was from the year 1954-55, therefore, the provisions of Section-170-A & B cannot be applied in a case which had arisen prior to 2nd October 1959 and thus, the instant case was out of the purview of Section-170-A & B of the C.G.L.R. Code and would pray for allowing the writ petition. 5) Respondent No. 1 has not filed her return. Respondents No. 3 and 4 have filed their return and have stated that they have exercised the judicial power conferred upon them under the Land Revenue Code as such no detailed return is required for them and would submit that the orders passed by them are legal, justified and do not warrant interference by this Court. 6) During pendency of the writ petition respondent No.1 expired, therefore, her legal representative was brought on record. 7) From the above factual matrix the points to be determined by this Court are :- (i) whether the proceedings initiated by the Sub-divisional Officer are barred by Section 190 of the Land Revenue Code? (ii) whether the change of name of Bhumiswami in the land owned by Dharma and recording of name of petitioner No. 1 will amount to transfer as defined in Section 165(6) of the Land Revenue Code. (iii) whether the findings recorded by the learned Sub-divisional Officer while passing the order dated 07.02.2005 affirmed by the Additional Collector dated 06.01.2006 and order dated 19.01.2007 passed by the Board of Revenue in the revision affirming the orders passed by both the revenue authorities are based on perverse finding or the revenue authorities have committed any illegality which warrant interference by this Court while exercising power under Article 226 of the Constitution of India. 8) This Court vide order dated 08.11.2023 has directed the State to call for records of proceedings conducted under Section 190 of the Land Revenue Code by Tehsildar, Kondagaon. In pursuance of the direction given by this Court the State has placed records of the proceedings pertaining to Tehsildar, Kondagaon and proceedings done by the Sub-divisional Officer while conducting the proceedings under Section 170 of the Land Revenue Code. 9) To appreciate the aforesaid points to be determined by this Court, it is expedient for this Court to extract Sections 165(6), 170 and 190 of the Land Revenue Code which read as under:- Section 165(6) Right of Transfer : 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- (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; (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. [Provided that the provision of this sub-section shall not be applicable to the land acquired under the Right to Fair Compensation and Transparency in Land Acquisitions, Rehabilitation and Resettlement Act, 2013 (No. 30 of 2013).] [Added by C.G. Act No. 15 of 2014, dated 21.8.2014.] Explanation. - For the purposes of this sub-section the expression "otherwise" shall not include lease. [Provided that the provision of this sub-section shall not be applicable to the land acquired under the Right to Fair Compensation and Transparency in Land Acquisitions, Rehabilitation and Resettlement Act, 2013 (No. 30 of 2013).] [Added by C.G. Act No. 15 of 2014, dated 21.8.2014.] Explanation. - For the purposes of this sub-section the expression "otherwise" shall not include lease. [(6-a) Notwithstanding anything contained in sub-section (1), the right of a bhumiswami other than a bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6), in the land excluding the agricultural land shall not 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 aboriginal tribe without the permission of the Collector given for reasons to be recorded in writing :Provided that every such transfer effected after the 9th day of June, 1980 but before the 20th April, 1981 which is not in accordance with the provisions herein contained shall, unless such transfer if ratified by the Collector in accordance with the provisions hereinafter contained, be void and shall be of no effect whatsoever, notwithstanding anything contained in this Code or any other law for the time being in force. (6-b) Notwithstanding anything contained in the Limitation Act, 1963 (No. 36 of 1963), the Collector may on his own motion at any time or on an application made in this behalf within three years of such transaction in such form as may be prescribed, make an enquiry as he may deem fit, and may, after giving a reasonable opportunity of being heard to the persons affected by the transfer, pass an order ratifying the transfer or refusing to ratify the transfer. (6-c) The Collector shall in passing an order under sub-section (6-a) granting or refusing to grant permission or under sub-section (6-b) ratifying or refusing to ratify the transaction shall have due regard to the following :- (i) whether or not the person to whom land is being transferred is a resident of the Scheduled Area; (ii) the purpose to which land shall be or is likely to be used after the transfer; (iii) whether the transfer serves, or is likely to serve or prejudice the social, cultural and economic interest of the residents of the Scheduled Area; (iv) whether the consideration paid is adequate; (v) whether the transaction is spurious or benami; and (vi) such other matters as may be prescribed. The decision of the Collector granting or refusing to grant the permission under sub-section (6- a) or ratifying or refusing to ratify the transaction of transfer under sub-section (6-b), shall be final, notwithstanding anything to the contrary contained in this Code. Explanation. - For the purpose of this sub-section,- (a)"Scheduled Area" means any area declared to be a Scheduled Area within the State of Chhattisgarh under paragraph 6 of the Fifth Scheduled to the Constitution of India; (b) the burden of proving that the transfer was not spurious, fictitious or benami shall lie on the person who claims such transfer to be valid. [(6-d) On refusal to grant the permission under sub-section (6-a) or ratification under sub-section (6-b), the transferee, if in possession of the land shall vacate the possession forthwith and restore the possession thereof to the original bhumiswami. (6-e) If the bhumiswami for any reason whatsoever fails or is unable to take possession of the land of which the right of possession stands restored to him under sub-section (6-d), the Collector shall cause the possession of land to be taken and cause the land to be managed on behalf of the bhumiswami subject to such terms and conditions as may be prescribed till such time as the original bhumiswami enters upon his land : Provided that if any resistance is offered in restoring possession, the Collector shall use or cause to be used such force as may be necessary. [Omitted Sub-section (6-ee) ' [(6-f) The provisions of sub-section (6-a) to (6-ee) shall have effect, notwithstanding anything to the contrary contained in this Code or any other law for the time being in force.] 170. [Omitted Sub-section (6-ee) ' [(6-f) The provisions of sub-section (6-a) to (6-ee) shall have effect, notwithstanding anything to the contrary contained in this Code or any other law for the time being in force.] 170. Avoidance of transfer in contravention of Section 165. (1) Where possession is transferred by a bhumiswami in pursuance of a transfer which is in contravention of sub-section (6) of Section 165 any person who, if he survived the bhumiswami without nearer heirs would inherit the holding, may,- (i) till the 31st December, 1978, in the case of transfer of possession prior to the 1st July 1976; and (ii) within twelve years of such transfer of possession, in subsequent cases, apply to the Sub-Divisional Officer to be placed in possession subject so far as the Sub-Divisional Officer may, in accordance with the rules made in this behalf determine to his acceptance of the liabilities for arrears of land revenue or any other dues which form a charge on the holding, and the Sub-Divisional Officer shall dispose of such application in accordance with the procedure as may be prescribed. (2) Where any land of a bhumiswami is sold in contravention of subsection (3) of Section 165, the Court by which such sale is ordered shall, on the application of the bhumiswami or any person who, if he survived the bhumiswami without nearer heirs would inherit the holding made within two years of such sale, set aside the sale and place the applicant in possession of the land subject to his accepting the liability for arrears of land revenue or any other dues which form a charge on the land. 190. Conferral of bhumiswami rights on occupancy tenants. (1) Where a bhumiswami whose land is held by an occupancy tenant belonging to any of the categories specified in sub-section (1) of Section 185 except in items (a) and (b) of clause (i) thereof fails to make an application under sub-section (1) of Section 189 within the period laid down therein, the rights of a bhumiswami shall accrue to the occupancy tenant in respect of the land held by him from such bhumiswami with effect from the commencement of the agricultural year next following the expiry of the aforesaid period. (2) Where an application is made by a bhumiswami in accordance with the provision of sub-section (1) of Section 189, the rights of a bhumiswami shall accrue to the occupancy tenant in respect of the land remaining with him after resumption if any allowed to the bhumiswami with effect from the commencement of the agricultural year next following the date on which the application is finally disposed of. (2-A) Where the land of a bhumiswami is held by an occupancy tenant other than an occupancy tenant referred to in sub-section (1), the rights of a bhumiswami shall accrue to the occupancy tenant in respect of such land- (a) in the case of occupancy tenants of the categories specified in items (a) and (b) of clause (i) of sub-section (1) of Section 185, with effect from the commencement of the agricultural year next following the commencement of the Principal Act; (b) in any other case, with effect from the commencement of the agricultural year next, following the date on which the rights of an occupancy tenant accrue to such tenant. (3) Where the rights of a bhumiswami accrue to an occupancy tenant under sub-section (1), sub-section (2) or sub-section (2-A) such occupancy tenant shall be liable to pay to his bhumiswami compensation equal to fifteen times the land revenue payable in respect of the land in five equal annual instalments, each instalment, being payable on the date on which the rent payable under Section 188 for the corresponding year falls due, and if default is made in payment, it shall be recoverable as an arrear of land revenue :Provided that if from any cause the land revenue is suspended or remitted in whole or in part in any area in any year, the annual instalment of compensation payable by an occupancy tenant holding land in such area in respect of that year shall be suspended and shall become payable one year after the last of the remaining instalments. (4) Any occupancy tenant may at his option pay the entire amount of compensation in a lump sum and where an occupancy tenant exercise this option, he shall be entitled to a rebate at the rate of ten per cent. (4) Any occupancy tenant may at his option pay the entire amount of compensation in a lump sum and where an occupancy tenant exercise this option, he shall be entitled to a rebate at the rate of ten per cent. (5) The amount of compensation, whether paid in lump sum or in annual instalments, shall be deposited in such manner and form as may be prescribed by the occupancy tenant with the Tahsildar, for payment to the bhumiswami. (6) Where the rights of a bhumiswami in any land accrue to an occupancy tenant under this section, he shall be liable to pay the land revenue payable by the bhumiswami in respect of such land with effect from the date of accrual of such rights. 10) From the records of proceedings done by the Tehsildar while recording the name of the petitioner No. 1 under Section 190 of the Land Revenue Code in the land in question it is quite vivid that petitioner No. 1 has moved an application on 28.04.1980 before the Tehsildar for claiming himself to be Bhumiswami as he is doing agriculture on the said land and paying rent for last 30 years as occupancy tenant. The Tehsildar has issued notice to respondent No. 1 for her appearance on 07.06.1980. On the said date the notice could not be served, therefore, a fresh notice was ordered and matter was fixed for 26.06.1980. On 26.06.1980, the statements of applicant and village Patel were recorded but Dharma Bhumiswami of the land was not present. As such, the proceedings were adjourned to 28.07.1980. On the said date the statement of Dharma was recorded wherein he has stated that he has handed over the land to Laxman voluntarily and if the name of Laxman is recorded in the land he has no objection. He has also stated that the Bhumiswami rights be given to the applicant. Thereafter the Tehsildar has passed the order on 27.08.1980 by declaring Laxman as Bhumiswami and it has also directed for recording the name of Laxman in the Revenue Record. As such, there is no illegality in the order dated 27.08.1980 passed by the Tehsildar or in the proceedings which have been illegally interfered by the Appellate Revenue Authorities and the Regional Authorities i.e. Board of Revenue. As such, there is no illegality in the order dated 27.08.1980 passed by the Tehsildar or in the proceedings which have been illegally interfered by the Appellate Revenue Authorities and the Regional Authorities i.e. Board of Revenue. 11) The counsel for the petitioners would submit that the provisions of Section 170 (A&B) are not applicable as the mutation was done prior 25-30 years and at that time the provisions of Section 165 of the Land Revenue Code is not attracted. As such, the application itself is not maintainable. It has also been contended that on 28.07.1980, before Tehsildar Respondent No. 1 along with her husband have appeared and statements were also recorded. Thereafter, publication was done but no objection was called, as such the mutation order which was passed on 28.07.1980 cannot be held to be illegal. It has also been contended that as per Section 190 of the Land Revenue Code if without any hindrance any person is in possession of the land, then he will have right of Mausmi Krishak as per the Land Revenue Code, as such also the application filed by respondent No. 1 deserves to be dismissed. 12) The record of the case would show that learned Sub-divisional Officer after appreciating the provisions passed the interim order on 07.06.2004 by recording its finding that provisions of Section 170 of the Land Revenue Code is applicable. The Sub-divisional Officer while rejecting the objection raised by the respondent has recorded a finding that as per Section 170 of Land Revenue Code if any Bhumiswami who is tribal, then any non tribal person using right of Morishi Kastkar and mutation has been done, then the Sub-divisional officer can proceed in the matter as per Section 170 of the Land Revenue Code and while finally deciding the case on 07.02.2005 has framed 4 issues. The Issue Nos. The Issue Nos. 3 and 4 go to the root cause of the case, therefore, they are being extracted : fcanq dzekad&3 okn Hkwfe dk mijksDrkuqlkj varj.k fof/klE;d \ fcanq dzekad&4 ;fn ugh rks okn xzLr Hkwfe dk HkwfeLokeh fof/k vuqlkj dkSu gksxk rFkk D;k mls Hkwfe dk dCtk fnyk;k tk,xkA 13) While deciding the Issue No. 3 & 4 it has recorded its finding as under:- 14) From the above findings recorded by the learned Sub-divisional it is quite vivid that before recording the name of the petitioners as Bhumiswami by the Tehsildar on 27.08.1980 no permission was sought from the Collector. Thus, there is clear violation of Section 165(6) of the Land Revenue Code. The petitioner No.1 has in the proceeding before the Tahsildar has claimed that he is having occupancy tenancy of the land belonging to the original occupancy tenant Dharma on the count he has left the place and rent is being deposited by the petitioner. Therefore, he has moved an application under Section 190 for conferral of Bhumiswami rights on occupancy tenants and accordingly he has been given Bhumiswami rights of the land by the Tehsildar. Still, rider of Section 165 (6) cannot be ignored by the Tehsildar as Explanation attached with Section 165(6) clearly provides that for the purposes of this subsection the expression ‘otherwise’ shall not include ‘lease’. It means Bhumiswami right once conferred in the name of tribal, then it will remain with the tribal and can be transferred/changed only with the permission of the Collector but in the present case Bhumiswami right has been conferred to a tribal, therefore, before conferring it to non-tribal permission is required to be obtained as per Section 165(6) of the Land Revenue Code which is not available on record in the present case. Thus, entire proceedings in garb of Section 190 of the Land Revenue Code claiming conferment of Bhumiswami rights over occupancy tenant is not permissible in view of rider contained in Section 165(6) of the Land Revenue Code. 15) The record of the case would show that Dharma was granted status of occupancy tenant in the year 1954-55 and Petitioner No. 1 is alleging that he is in possession for the last 25 years, but he has not submitted any record to demonstrate that he was granted status of occupancy tenant to get benefit of Section 190 of the Land Revenue Code. Mere possession without status of occupancy tenant is of no effect for claiming himself to be occupancy tenant as provided in Section 185 of the Land Revenue Code. Even otherwise, a tribal cannot transfer his Bhumiswami land by way of sale or otherwise unless the written permission has been given by the Collector. Therefore, learned Sub-divisional officer has not committed any illegality in passing the order on 07.02.2005 directing for returning the land to respondent No. 1. Thereafter, the Additional Collector has not committed any illegality in dismissing the appeal by relying upon Section 165(6) of the Land Revenue Code. Similarly, the Board of Revenue while dismissing the revision has also not committed any illegality in dismissing the revision by recording the finding that petitioners have not purchased the land from Dharma but have taken the aid of Section 190 of the Land Revenue Code which is infact fraud with the respondent No. 1. Thus, the writ petition deserves to be dismissed. 16) Accordingly, writ petition being devoid of merit is dismissed. The interim order passed by this Court is vacated.