Dhumaniya vs Harisingh

THE defendant has come up in the present second appeal, challenging the Judgment and Decree passed by the two Courts below whereby the suit of theplaintiff-respondent for declaring the order passed by the Sub-Divisional Officer,ordering reversion of the land to the appellant-defendant u/s 170-B of the M.P.Land Revenue Code as illegal and void, has been decreed.

THE plaintiff came to the Court for declaration that the order of the Sub-Divisional Officer dated 4.4.85 is illegal and void and also prayed for reliefof restoration of possession with respect to the agricultural land comprised inSurvey No. 140/1 area 1.829 Hectares, and Survey No. 142/2 area 2.508 Hectareson the allegations that the plaintiff's father deceased Sabdalsingh was aBhumiswami and after his death the plaintiff is the exclusive owner of the saidsuit-land. Plaintiff's father had purchased the said land from Brija, the deceasedfather of the defendants No. 2 to 5 in lawful manner. The defendants No. 2 to 5are Rawat by caste and Rawats are not included in the Scheduled Tribe as perthe Notification issued under M.P. Land Revenue Code, 1959. Thus, theprovisions contemplated u/s 165 of the Madhya Pradesh Land Revenue Code,1959 (hereinafter referred to as the Code) are not applicable. It was further alleged that in the list issued under Article 342 of the Constitution, Rawat casteis not included in the Vidisha District in the category of Scheduled Tribe. It wasfurther alleged that Rawat and Sahariya are two different castes. Rawats fall inthe general category whereas Sahariya caste is Scheduled Tribe. Inspite of this,the Sub-Divisional Officer had, vide his order dated 4.4.85, under section 170Bof the Code, declared the sale to be illegal. Hence, the order passed by the S.D.O.being contrary to law, deserves to be set aside and the possession taken by thedefendant during the pendency of the suit, be ordered to be restored.

In the written statement, the State of Madhya Pradesh (defendant No. 1) contended that the particulars have not been given in the plaint as to how muchand what was its consideration; other legal heirs of the deceased Sabdalsingh(plaintiff's father) have not been included. Hence, the suit cannot be tried. Stateof Madhya Pradesh also contended that the defendants No. 2 and 3 are ScheduledTribe being of Sahariya tribe. Hence, the transfer without sanction of theCollector is illegal and in rural area Sahariya are referred as Rawats. Infact thecaste of defendant Nos. 2 and 3 is Sahariya Adivasi tribal; Rawat and Sahariyaare not two different tribes; no consideration was paid to the defendant Nos. 2and 3 and they are illiterate, downtroden class and the land has been illegallyusurped by the plaintiff arid has been rightly ordered to be reverted, by the SDO.The possession was handed over to the defendants by the Government and hence,the suit without relief for possession is not maintainable.

THE original defendant No. 2 died and his legal representatives were brought on record. Defendants No. 2 to 5 filed their joint written statement andtheir defence is common.as that of the State of Madhya Pradesh.

THE trial Court came to the conclusion that the defendants No. 2 to 5 are Rawats by caste and if they were Sahariya, the same ought to have beenmentioned in the documents. Hence, prior permission of the Collector was notrequired to be obtained. The order passed by the SDO has been quashed.

On appeal, the first appellate Court has come to the conclusion on the basis of the list dated 20.11.60 infront of the caste Sahariya, there is no mention ofcaste Rawat and from the documents, it appears that the defendants' caste isRawat. The civil Court is not bound by the order of the SDO. Hence, the Judgmentand Decree passed by the trial Court has been affirmed.

THIS second appeal has been admitted by this Court on 18.8.99 on the following substantial question of law : "Whether the suit filed by plaintiff challenging the order passed under section 170-B of M.P. Land Revenue Code, is not maintainable under section 257(H) of M.P. Land Revenue Code ?"

LEARNED counsel for the appellant Shri R.K. Soni, has strenuously urged that it is a case where the proceedings are specifically u/s 170-B of the Code andit is the SDO who is competent to determine the question and there is provisionand full fledged prescribed procedure for appeal and revision in the revenueCourts and section 257(1-1) clearly excludes the jurisdiction of civil Court andthe dispute is required to be decided by the SDO u/s 170B of the Code. He placedreliance on the decision of this Court reported in 1986 JLJ 190 = AIR 1986 MP122 Dhirendra Nath Sharma v. State of Madhya Pradesh and another whereby the constitutional validity of the said provision - Section 170-B has been upheld.The further submission is that the question has been considered in the firstinstance by the SDO and thereafter an appeal and thereafter a revision lies underthe provisions of the M.P. Land Revenue Code.

Hence, in Dhirendra NathSharma's case (supra) an enquiry was not made in the writ petition challengingthe vires, on the merits of the case. It is further submitted by the learned counselfor the appellant that it was not open to the Courts below to enquire into the meritsof the decision of the dispute decided by the order of the SDO. The jurisdiction,if any, is limited and the civil Court has entered into the questions which arerequired to be decided by the SDO and the SDO has decided the same. Hence,no interference can be made by the civil Court. The findings regarding Rawatcaste and Sahariya tribe are simultaneously binding on the civil Court. Thus, thesuit was not maintainable and the order has been wrongly set aside by the Courtsbelow.

Learned counsel for the plaintiff-respondent has refuted the submissions made by the learned counsel for the appellant and has urged that the objectionas regards the jurisdiction was not taken before the Courts below and as such itcannot be taken in the second appeal. It is further submitted that the basicfundamental of the judicial procedure was not followed and adverted to by theSDO. Hence, the civil Court's jurisdiction is not ousted to enquire into the meritsof the matter even if the SDO is held to be competent to decide the dispute u/s170-B of the Code with respect to reversion of the land.

SECTION 170 of the Code provides for avoidance of transfer in contravention of section 165 of the Code. Under section 170 of the Code, wherepossession is transferred by a Bhumiswami in pursuance of a transfer which isin contravention of sub-section (6) of section 165 any person who, if he survivedthe Bhumiswami without nearer heirs would inherit the holding, may apply tothe Sub-Divisional Officer to be placed in possession subject so far as theSub-Divisional Officer may, in accordance with the rules made in this behalfdetermine to his acceptance of the liabilities for arrears of land revenue or anyother dues which form charge on the holding, and the Sub Divisional Officershall dispose of such application in accordance with the procedure as may beprescribed.

SUBSEQUENTLY , by way of an Amendment Act No. 61 of 1976 (29.11.1976). Section 170-A was inserted in the M.P. Land Revenue Code whichempowers the SDO who, notwithstanding anything contained in the LimitationAct, 1963 (No. 36 of 1963), may, on his own motion or on an application madeby a transferer of agricultural land belonging to a tribe which has been declaredto be an aboriginal tribe under sub-section (6) of section 165 on or before the31st December, 1978, enquire into a transfer effected by way of sale, or in pursuance of a decree of a Court of such land to a person not belonging to suchtribe or transfer effected by way of accrual of right of occupancy tenant undersection 169 at any time during the period commencing on the 2nd October, 1959and ending on the date of commencement of the Madhya Pradesh Land RevenueCode (Third Amendment) Act, 1976, to satisfy himself as to the bona fide natureof such transfer. If the SDO comes to a conclusion on an enquiry after giving areasonable opportunity to the persons owning any interest in such land, that suchtransfer was not bona fide, he may set aside such transfer if made by a holderbelonging to a tribe which has been declared to be an aboriginal tribe undersub-section (6) of section 165 and restore the land.

The provisions of section 170-A are enacted only to declare invalid those transactions which were invalid from the outset and had not conveyed any titleto the non-tribal transferee. These provisions enabled declaration as nullity oftransactions which were nullity from inception being unconscionabletransactions between unequals in which the consent and the contract resulting inthe transfer was void on account of absence of the essentials to make a validcontract.

THE provision of section 170-A is attracted only when transfers are effected between the period commencing on

10.1959 and ending on 29thNovember, 1976, as held by a Division Bench decision of this Court reported in1988 RN 169, Balvant Rai v. Collector Jhabua and others, while considering the provision of section 170-A of the Code.

THE object behind these provisions is to provide social justice to members of the aboriginal tribe who are socially and economically backward and who arenot able to look after their own interest. Their backwardness makes them an easypray for others. They are ignorant of the laws made in their favour and cannoton their own, take recourse to legal proceedings for enforcing their rights. Thus,a suo motu action has been provided and the purchaser has to report the transferif he wants to save the transaction. The burden of proof has been placed on thetransferee. If the SDO finds that the transfer is not bona fide, he may take actionunder clause (a) and (b) of section 170-A (2) of the Code. This Court in the caseof Gendibai v. Chief Secretary, Government of M.P. and others, 1981 RN 382has held that section 170-A does not suffer from any excessive delegation.

Section 170-B of the Code provides for the reversion of land of members of aboriginal tribe which was transferred by fraud. This provision has beeninserted by M.P. Amendment Act No. 15 of 1980 (24.10.80). By this similarprovision, further rights are protected of aboriginal tribes who have been declaredso u/s sub-section (6) of section 165 between the period commencing on the 2ndOctober, 1959 arid ending on the date of the commencement of Amendment Act,1980. Any person who is in possession of the agricultural land which belonged to a member of a scheduled tribe which has been declared to be an aboriginaltribe, shall, within two years of such commencement, notify to the SDO in suchform and in such manner as may be prescribed, all the information as to how hehas come in possession of such land. If any person fails to notify the information,it shall be presumed that such person has been in possession of the agriculturalland without any lawful authority and the agricultural land shall, on the expirationof the period aforesaid, revert to the person to whom it originally belonged andif that person be dead, to his legal heirs. Sub-section (3) of section 170-B providesthat on receipt of the information under sub-section (I), the SDO shall make suchenquiry as may be deemed necessary about all such transactions of transfer andif he finds that the member of aboriginal tribe has been defrauded of his legitimateright, he shall declare the transaction null and void and pass an order revestingthe agricultural land in the transferer and, if he is dead, in his legal heirs.

THIS Court, in the case of Dhirendra Nath Sharma (supra) has held that there is no usurpation of judicial function thereby and there is no arbitrariness inthe procedure nor is there the vice of absence of enquiry. Further an appeal andrevision also lies.

THE provision of section 257 (l-l) reads thus :

"257. Exclusive jurisdiction of revenue authorities - Except as otherwise provided in this Code, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters : xx xx xx (L-1) any matter covered under section 170-B."

It entails special bar on the jurisdiction of the civil Court to entertain a disputewhich requires to be decided by the SDO u/s 170-B of the Code.

Section 257-A has also been enacted at the time of enactment of section 170-A, which provides for burden of proof and bar of legal practitioners in certain proceedings. The burden of proving the validity of transfer shall lie on the personwho claims such transfer to be valid.

THE Apex Court in the case of Dhulabhai v. State of M.P., 1968 RN 683 = 1969 MPLJ 1 has considered to what extent in a provision of exclusivejurisdiction any interference can be made by civil Court. Several tests have beenlaid down such as :

(i) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (ii) A challenge to the provisions pf the particular Act as ultra vires cannot be brought before the Tribunals constituted under that Act. Even the High V Court cannot go into that question on a revision or reference from the decision of the Tribunals. (iii) Where the statute gives a finality to the orders of the Special Tribunals the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (iv) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. (v) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (vi) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (vii) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply.

THE same principles are again enunciated by the Apex Court in the case of State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao(Dead) by LRs andothers, (2000) 3 SCC 689, wherein the decision of Dhulabai(supra) has beennoticed. Para 5 of the said decision, which is relevant, reads thus :

"5. The normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil Courts to try civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai v. State of M.P., it was noticed that where a statute gives finality to the orders of the Special Tribunals, jurisdiction of the civil Courts must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

Their Lordships in the aforesaid case, held that the question whether the property is charitable or religious endowment is concluded by the order of Deputy Commissioner u/s 77 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 and could not be questioned before the civil Court except on the ground that the Deputy Commissioner had acted contrary to the provisions of the Act or not having followed the fundamental principles of judicial procedure. The order passed by the Deputy Commissioner could have been challenged as provided for under the Act. Hence the order passed by the authority under special jurisdiction was held to be conclusive and final.

The facts of the present case indicate that the order of the SDO which on record as Ex. P-7 was passed on 4.4.85. This order indicates that the SDO didnot conduct enquiry himself but called for the report from the Tahsildar. It doesnot appear that the Tahsildar conducted any type of enquiry. However, it appearsthat the SDO relied on lease-deed which was granted by the Madhya BharatGovernment to Luraiya Sahariya in which the person who was granted lease wasshown to be scheduled tribe. Voters list was also considered by the SDO in whichthe applicant Dumaniya was shown to be scheduled tribe. The SDO came to theconclusion that there was enough material to hold that Dumaniya was ofscheduled tribe. Rawat and Sahariya are the same castes and permission of theCollector was necessary to be obtained under section 165(6) of the Code. Hence,the transaction was annulled. It appears that it was not specified by the plaintiffbefore the SDO as to what was the consideration and whether he was a bona fidepurchaser.

THE civil Court has gone into the questions which were required to be decided by the SDO and as a matter of fact, decided by the SDO. The matterswhich are required to be decided by the SDO are not final as against the order ofthe SDO there is further appeal and revision provided under the Code. The ordersthus passed are final and the jurisdiction of the civil Court is barred u/s 257(1-1)of the Code. Thus, the Courts below could have seen only to .the extent whetherbasic fundamental principles of the judicial process have been followed or notby the competent authority passing the order and the jurisdiction of the civil Courtis limited as laid down in the case of Dhulabhai (supra) and case must fall withinthe parameter of the tests mentioned in Para 19 of this order. The Courts belowhave not considered the material such as the voters list which was referred to bythe SDO and also the lease deed filed by the respondent, granted to LuraiyaSahariya.

THUS , it is clear that the Courts below have proceeded beyond their jurisdiction to interfere on merits of the order. They could have seen only whetherthe procedure has been followed or not and should not have gone into thequestions decided by the competent authority.

Since, it is apparent from the order that no enquiry was conducted by the SDO which is mandatory u/s 170-B of the Code. Thus, it can be said that theorder passed by the SDO was not in accordance with law.

THUS , the order of the SDO is liable to be set aside and is hereby set aside and the SDO is directed to decide the matter afresh. Quashing of the order of theSDO does not mean that the SDO should not decide the matter afresh withoutfollowing the procedure. The SDO is bound to decide the matter afresh inaccordance with law after giving both the parties due opportunity of hearing.

THE appeal is allowed in part. The Judgment and Decree passed by the Courts below are modified to the extent that the order of the SDO is quashed.However, SDO is directed to conduct fresh enquiry and decide the dispute afreshafter hearing both the parties, in accordance with law, and the provisions ofsection 170-B of the Code. The SDO shall also take into consideration all therelevant factors prescribed under the Code for annulling such transaction.