Nityanand Panigrahi vs State of M.P. and Others

N.K. Agarwal, J.—The instant petition is directed against the order dated 23-7-1992, passed by the Sub Divisional Officer (Revenue), Jagdalpur (for short ''SDO''), in Case No. 475/A-23/91-92, order dated 31-5-1993, passed by Additional Collector, Jagdalpur, in Revenue Case No. 7/A-23/92-93, and order dated 23-6-1997, passed by the Commissioner, Bastar, in Revenue Case No. 85/A-23/92-93, whereby and whereunder, the SDO directed for restoration of possession of the disputed land in favour of predecessor in interest of respondent Nos. 5 and 6. The same was affirmed by the respondent Nos. 2 and 3, by dismissing the appeal and revision preferred by the petitioner.

The brief facts of the case as per petitioner are that, the petitioner''s father Sanujjay Panigrahi, under a registered sale-deed dated 19-5-1965 (Annexure P-2), purchased the agricultural land comprising Khasra No. 216 Admeasuring 1 Acre, situated in Village Titargaon, Tah. Jagdalpur, from one Butia son of Kartik Ram Bhatara (predecessor in interest of respondent Nos. 5 and 6), after obtaining permission from Collector, Jagdalpur, in Revenue Case No. 19/A-21/64-65 vide order dated 26-2-1965, for consideration of Rs. 100/-under Section 165(6) of the Land Revenue Code, 1959 (for short ''the Code'').

The petitioner, in reply to issuance of notice u/s 170B of the Code by the SDO, submitted that although he did not notify the SDO all the information as to how he came in possession of such land, but he filed a photocopy of sale-deed and a copy of letter of Tehsildar Jagdalpur, intimating the seller Butia with regard to permission granted to him to sale his land for a consideration of Rs. 100/- to petitioner''s father Sanujjay Panigrahi. Vide order dated 23-7-92, the SDO passed the order directing to restoration of disputed land in favour of Butia on the ground that the petitioner did not notify as to how he came in possession of the disputed land within the period prescribed there for in terms of Section 170B of the Code. Against this, the petitioner preferred an appeal before the Additional Collector who too accepting the reason assigned by the SDO as valid to restore the subject land in favour of the respondent Nos. 5 and 6, dismissed the appeal vide order 31-5-93. Even in revision preferred by the petitioner met with the same fate. The Commissioner, Bastar, dismissed the revision vide order dated 23-6-97. Hence, this writ petition by the aggrieved petitioner.

Shri Vishnu Kosta, learned Counsel appearing for the petitioner '' would submit that the petitioner''s father was bonafide purchaser of the suit land, who purchased the suit land from Butia son of Kartik Ram Bhatara vide registered sale-deed dated 19-5-65 after obtaining due permission u/s 165(6) of the Code, and therefore, the order passed by all the Courts below merely on the ground that the petitioner did not notify all the information to the SDO as to how he has come in possession of such land within the period prescribed therefor, is contrary to provisions of Section 170B of the Code, and also runs counter to the judgments of Division Bench''s in cases of Dhirendra Nath Sharma v. State of M.P. and Anr. 1985 MPLJ 786 and Atmaram and Anr. v. State of M.R. 1995 MPLJ 633.

Per contra, Shri Satish Gupta, Govt. Advocate, supported the orders passed by the Courts below.

I have heard the Counsel appearing for the parties, perused the orders passed by the Courts below.

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 170B of the Code. Section 170B of the Code was inserted by M.P. Amendment No. 15 of 1980 (24-10-1980). Section 170B reads as under:

170B. Revision of land of members of Aboriginal Tribe which was transferred by fraud.-- (1) Every person who on the date of commencement of the 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 Sub-section (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.

Subs. by MP. Act No. 19 of 1982, dated 23-10-1981.

In the matter of Dhirendra Nath Sharma (supra), in Para 12 of the order it has been held thus:

Section 170B 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 170B, 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 170A 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 transferrer has been defrauded, the transaction shall be declared null and void and an order would be made revesting the agricultural land in the tribal transferrer 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 transferrer 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 tribal transferrer 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 transferrer 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 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 transferrer or his legal heirs.

In the matter of Atmaram (supra), while dealing with Section 4 of the Evidence Act of 1872 it has been held that Sub-section (2) of Section 170B of the Code merely uses the word "shall be presumed" and does not indicate 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 (2) must, therefore, be regarded as a rebuttal presumption. Referring to Dhirendra Nath Sharma''s case (supra), it has been held that in a case governed by Sub-section (2) of Section 170B 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 presumption is rebutted.

I am in respectful agreement with the principles of law laid down in the above cited judgments.

By applying the principles of law laid down in the aforesaid matters in the facts of the present case, it is crystal clear that the orders have been passed by the Revenue Tribunals without holding enquiry in terms of Sub-section (3) of Section 170B of the Code. As per the judgments of M.P. High Court referred hereinabove, enquiry as envisaged under Sub-section (3) of Section 170B is equally insisted and applicable when the matter is covered by Sub-section (2), that is to say even in a case where the person who has come into possession of the land between 2nd October, 1959 and 24th October, 1980 did not notify the information to the jurisdictional SDO. Simply because, Sub-section (2) has enacted a presumption, it would be totally unfair for a jurisdictional SDO to straightway evict or take over the land and restore the same to the Aboriginal Tribal vendor without conducting enquiry as envisaged under Sub-section (3) of Section 170B of the Code, particularly, in the premise of the definite case of the petitioner that his father purchased the land after obtaining permission from the Collector as required under Sub-section (6) of Section 165 of the Code. In that view of the matter, I think that it is a fit case to be remanded to the SDO, Jagdalpur, to conduct an enquiry de novo and pass appropriate order on merit.

For the results and for the foregoing reasons, the writ petition is allowed and the impugned orders passed by the 2nd, 3rd and 4th respondents are set aside and the proceedings are remanded to the SDO, Jagdalpur, with a direction to conduct an enquiry as envisaged under Sub-section (3) of Section 170B of the Code and pass appropriate order after issuing notice to the petitioner and after giving a fair opportunity to the petitioner to represent his case. I also permit the petitioner as well as the Department to file additional statements and documents in support of their respective case. No order as to costs.