Parwati vs Munna and Others

Nawal Kishore Agarwal, J.—By this common order, W.P. (227) No. 4110/2009 and 4122/2009 are disposed of as in both the petitions, identical issues are involved. The petitioner has preferred these petitions against the orders dated 26-5-2009 passed by the Commissioner, Bastar Division, Jagdalpur in Revision Case No. 7/A-23/2007-08 and 8/A-23/2007-08. Facts of the case in brief are that petitioner''s application u/s 170B of the C.G. Land Revenue Code, 1959 was dismissed by Sub Divisional Officer (Revenue), Jagdalpur holding it as not maintainable in view of the fact that both the parties to the transaction of transfer are aboriginal tribes. The above order was confirmed by the Collector in appeal and by Commissioner in revision.

Shri Agrawal and Shri Sharma referring to Para 8 of the judgment of Supreme Court in the case of Bhaiji Vs. Sub Divisional Officer, Thandla and Others, , would submit that the provisions contained in Section 170-B of the Code are also applicable in transaction of transfer between two aboriginal tribes.

On the other hand, Shri Manoj Paranjpe, learned Counsel for the respondent supported the order.

In order to appreciate the contention raised by the appellant, Section 170- of the Act is reproduced below:--

170-B. Reversion of land of members of aboriginal tribe which was transferred by fraud.-- (1) Every person who on the date of commencement of the Chhattisgarh 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 endings 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 falls to notify the information as required by subsection (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.

(2-A) If a Gram Sabha in the Scheduled Area referred to in clause (1) of Article 244 of the Constitution finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a Bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that persons to whom it originally belonged and if that person is dead to his legal heirs :

Provided that if the Gram Sabha fails to restore the possession of such land, it shall refer the matter to the Sub-Divisional Officer, who shall restore the possession of such land within three months from the date of receipt of the reference.

(3) On receipt of the information under sub-section (1), the Sub-Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order revesting the agricultural land in the transferor and, if he is dead, in his legal heirs.

[(3) On receipt of the information under sub-section (1) the Sub-Divisional Officer shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and--

(a) Where no building or structure has been erected on the agricultural land prior to such finding pass an order revesting the agricultural land in the transferor and if he be dead, in his legal heirs,

(b) Where any building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 (No. 1 of 1894) and order the person referred to in sub-section (1) to pay to the transferor the difference, if any, between the price so fixed and the price actually paid to the transferor :

Provided that where the building or structure has been erected after the 1st day of January, 1984 the provisions of clause (b) above shall not apply :

Provided further that fixation of price under clause (b) shall be with reference to the price of registration of the case before the Sub-Divisional Officer].

A bare perusal of the above provision would reveal that nowhere in the entire scheme of sub-sections (1), (2) and (3) of Section 170-B, there is the least indication of confining the applicability of the provision to such transactions of transfer as were entered into by a member of an aboriginal tribe in favour of a member not belonging to an aboriginal tribe. No exception has been enacted by the Legislature so as to exclude from the purview of Section 170-B transactions of transfer between two persons both of whom are members of aboriginal tribes.

Supreme Court in case of Bhaiji Vs. Sub Divisional Officer, Thandla and Others, , while dealing with the provisions of Section 170-B(2-A) of the M.P. Land Revenue Code, 1959 has held "The language of the section as drafted in 1980 is clear and unambiguous and does not admit to any doubt that any transactions of transfer between two persons both of whom are members of aboriginal tribes is also covered under the provisions and observed in Para 8 as under:--

It is well known that some of the original tribes are nomadic and some indulge in crimes traditionally and historically. The purpose of setting land with the tribals mostly which is done at very concessional rates and at times even without involving an obligation to pay the land revenue, is so done with a view to see that the aboriginals settle at one place abandoning nomadism and picking up tilling the soil as their vocation by settling at one place and earning livelihood by labour and toil. It is also well known that creamy layers have developed and even as amongst socially unprivileged some have acquired affluence. An affluent shrewd tribal may indulge in exploiting his fellow beings. Possibility cannot be ruled out where a non-tribal may manage to have land transferred apparently but not in reality in the name of a tribal and taking advantage of his status, affluence or any other means, conferring him with capacity to exploit, may till the land to his own advantage depriving the aboriginal tribal from the benefits of the land settled by the State with him. All such cases are taken care of by Section 170-B. The purpose of enacting Section 170-B of the Code is very wide. The object sought to be achieved as its drafting indicates, is to gather and make available all statistics with the State Officials so as to find out how much land belonging to aboriginal tribals is in possession of anyone to whom it does not belong as on the cut-off date. The information having been collected, the enquiry under sub-section (3) shall be directed towards finding out the nature of transaction resulting in transfer of land--whether such transaction of transfer has resulted in the aboriginal tribal having been defrauded of his legitimate right in the land. Sub-sections (1), (2) and (3), as enacted in 1980, have to be read as part of one whole scheme. If the submission of Shri Gambhir is correct then the object of enquiry under sub-section (3) would have been to find out if such transaction of transfer has resulted in an aboriginal tribal having been defrauded of his legitimate right by a person not belonging to an aboriginal tribe. But that is not so. Nowhere in the entire scheme of sub-sections (1), (2) and (3) of Section 170-B, as enacted in 1980 there is the least indication of confining the applicability of the provision to such transactions of transfer as were entered into by a member of an aboriginal tribe in favour of a member not belonging loan aboriginal tribe. No exception has been enacted by the Legislature so as to exclude from the purview of Section 170-B transactions of transfer between two persons both of whom are members of aboriginal tribes. Had it been so, the Legislature would have specifically said so. The language of the section as drafted in 1980 is clear and unambiguous and does not admit of any doubt so far as this aspect is concerned.

In view of above settled legal position, there is no doubt in my mind that the provisions contained in Section 170-B are also applicable to transactions between two persons both of whom are members of aboriginal tribes and the orders passed by the authorities suffer from illegality. The same deserves to be and is hereby set aside. The matter is remitted back to the Sub-Divisional Officer for decision afresh after making an enquiry in accordance with the provisions of Section 170-B of the Code and after giving full opportunity of hearing to both the parties in the light of observation made hereinabove. The Sub Divisional Officer shall pass order within a period of 6 months from the date of receipt of copy of this order.

The parties are directed to appear before the Sub Divisional Officer on 3rd March, 2011.

Both the parties undertake to co-operate with the authority in early disposal of the matter. The petition is allowed to the above extent.