Smt. Sukhmati vs Chironji Lal and Others

Nawal Kishore Agarwal, J.—The instant petition is directed against the order dated 3-5-2006, passed by the Board of Revenue in Revision Case No. 144/A-23/2002-03. The brief facts of the case as per petitioner are that, the Sub-Divisional Officer, Sakti, passed an order on 31-3-1998 u/s 170B of the Land Revenue Code, 1959 (for short ''the Code'') reverting the land in favour of Tekuram i.e. predecessor of respondent No. 1 to 3. The above order was reversed by the Addl. Collector, Janjgir, in an appeal filed, vide its order dated 22-8-2001. The Board of Revenue, in Revision Case No. 144/A-2/2002-03, set aside the order passed by the Addl. Collector and restored the order dated 31-3-1998, passed by the SDO, Sakti. Hence, this writ petition by the aggrieved petitioner.

Shri Sanjay K. Agrawal, learned counsel appearing for the petitioner would submit that the SDO has passed the order without adopting the proper procedure as envisaged under sub-section (3) of Section 170B of the Code without giving opportunity of hearing i.e. for producing the documents and evidence. He would further submit that the land in question was purchased by Balram and others with due permission of Addl. Collector u/s 165(6) of the Code dated 1-5-1971 (Ex. P/1). This fact has been ignored by the SDO as well as by the Board of Revenue while passing the order, and therefore, the order impugned as well as the order passed by the SDO are illegal and deserve to be set aside.

On the other hand, Shri Sunil Sahu, learned counsel appearing for the respondent No. 1 to 3 supported the order impugned and submitted that the order has been passed by the SDO after affording due opportunity of hearing to the petitioner, permission u/s 165(6) of the Code (Ex. P/1) passed by the Addl. Collector was not in accordance with law; inasmuch as the said order was passed without making any enquiry. He would further submit that the transfer of the land was also in contravention of the above permission. Addl. Collector''s above permission was in favour of Sevak Ram whereas the land was alleged to be transferred by way of registered sale deed in favour of Balram and others, who, in turn, sold it to Kutappan Nair.

I. have heard the counsel appearing for the parties and perused the orders passed by the courts below.

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 Act No. 15 of 1980 (24-10-1980). Section 170B reads as under:

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 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.

(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 transferer 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 reverting the agricultural land in the transferer 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 transferer the difference, if any, between the price so fixed and the price actually paid to the transferer:

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 on the date of registration of the case before the Sub-Divisional Officer.]

Law is well settled. 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 rebuttable presumption, and 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.

By applying the above principles of law to the facts of the present case, it is crystal clear that the orders have been passed by the Tribunals without holding any enquiry in terms of sub section (3) of Section 170B of the Code. While inquiring into the matter, the SDO must consider the effect and import of the permission u/s 165(6) of the Code granted by the Addl. Collector vide Ex. P/1. It is no doubt true the authority is entitled to look into effect and import of such permission granted by the Addl. Collector to arrive at a finding whether or not transaction is bona fide, but the same is required to be considered in its proper perspective. Therefore, the order passed by the court below as well as by the SDO are not in accordance with law and in the considered opinion of this court this is a fit case to be remanded to the SDO, Sakti, to conduct an enquiry de novo and pass appropriate order on merit. In the result, the writ petition is allowed and the impugned orders passed by the 6th and 7th respondents are set aside and the proceedings are remanded to the SDO, Sakti, 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 respondent to file additional statements and documents in support of their respective case.

No order as to costs.