Sukho Bai vs Amrita Devi (Died) Through Lrs

Sanjay K. Agrawal, J

This writ appeal is directed against the impugned order dated 15-1-2020 passed by the learned Single Judge in W.P.(C) No.5934/2009, by which the writ petition filed by the appellant herein / writ petitioner has been dismissed by the learned Single Judge finding no merit.

The aforesaid challenge to the impugned order has been made on the following factual backdrop: -

The writ petitioner / appellant herein being daughter of late Shri Pandey (Gond) filed an application under Section 170-B of the Chhattisgarh Land Revenue Code, 1959 (for short, ‘the Code’) for return of land which was allegedly transferred by her father on 3-7-1957 in favour of one Ganesh and Ganesh later-on transferred the same in favour of Smt. Amrita Devi by sale deed dated 29-8-1974. The said application was dismissed by the Sub-Divisional Officer finding no merit which has been set aside by the Collector on 31-12-2005 and that has been interfered by the Board of Revenue by order dated 7-8-2007 holding that the transaction is of 3-7-1957 between two aboriginal tribes and the provisions of Section 170-B of the Code would not be applicable. The writ petition challenging the order of the Board of Revenue has been dismissed by the learned Single Judge affirming the order of the Board of Revenue.

Mr. Sunil Sahu, learned counsel appearing for the appellant herein / writ petitioner, would submit that the learned Single Judge went wrong in holding that the transaction is in between the two tribals and on 3-7-1957, the provisions of Section 170B of the Code would not be applicable, as such, the impugned order is liable to be set aside and the writ appeal deserves to be allowed. However, learned counsel appearing for the respondents would support the impugned order.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

Admittedly, father of the appellant herein late Pandey during his lifetime transferred the suit land in favour of Ganesh by sale deed dated 3-7-1957 before coming into force of the Chhattisgarh Land Revenue Code, 1959 which came into force with effect from 2-10-1959 and thereafter, Ganesh has transferred the suit land in favour of Smt. Amrita Devi – respondent No.1 herein by sale deed dated 29-8-1974 . In that view of the matter, the Board of Revenue set aside the order of the Collector holding that the transaction is prior to 2-10-1959 and the provisions of the Code which came into force from 2-10-1959 would not be applicable. The said finding has been affirmed by the learned Single Judge.

The Division Bench of this Court in the matter of Yadram (Dead) through LRs. Smt.Yamuna Bai and others v. State of C.G. & others 2015(5) C.G.L.J. 402 (DB), while answering the reference made by the learned Single Judge has clearly held that the transaction said to have been made prior to coming into force of the present Land Revenue Code i.e. prior to 2-10-1959 is outside the purview of the enquiry under Section 170-B of the Code and observed as under: -

“19. In view of the legal opinion we have formed regarding the applicability of Section 170-B of the Code, we answer the question referred that the provisions of Section 170-B of the Code and Act No.15 of 1980 (with effect from 24-10- 1980) will apply in respect of transaction involving transfer / acquisition of right by a non-tribal over a land, before such acquisition of title or interest or transfer, belonged to member of tribe who has been declared to be an aboriginal under sub-section (6) of Section 165 of the Code from the commencement of the Chhattisgarh Land Revenue Code, 1959 i.e. 2-10-1959 till commencement of the Amendment Act, 1980 i.e. 24-10-1980.

In the light of the view taken by us, it is manifest that the decision of the learned Single Judge in Smt. Ramkunwar (supra) is legally erroneous as it has wrongly applied and misconstrued the provisions of law and is a judgment per incuriam. Thus, we overrule Smt. Ramkunwar (supra) and other rulings whose ratio run counter to the principles enunciated above. We answer the reference accordingly.”

Admittedly and undisputedly, father of the writ petitioner / appellant herein transferred the suit land in favour of Ganesh on 3-7-1957 which is admittedly prior to coming into force of the Code i.e. prior to 2-10-1959 and therefore the provision of Section 170-B of the Code was not invokable. More particularly, the appellant’s father Shri Pandey never challenged the said transaction during his lifetime and the said transfer has attained finality. In that view of the matter, the learned Single Judge is absolutely justified in dismissing the writ petition filed by the appellant herein / writ petitioner. We do not find any merit in this writ appeal. It deserves to be and is accordingly dismissed leaving the parties to bear their own cost(s).