Chattisgarh High Court

State Of Chhattisgarh And Ors vs Kartik Ra,M on 6 April, 2022

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on 17.03.2022
Order pronounced on 06.04.2022

WP227 No. 490 of 2012
1. State of Chhattisgarh Through The Collector, Distt Raigarh C.G
2. The Tahsildar Tamnar Distt. Raigarh C.G.
3. The Sub Registrar Raigarh Distt. Raigarh ---- Petitioners

Versus
• Munna S/o Shri Dhobiram, Caste Birhor R/o Village Hinjar, Tahsil Tamnar Distt.
Raigarh C.G ---- Respondent

WP227 No. 488 of 2012
1. State Of Chhattisgarh, Through The Collector, Distt Raigarh C.G
2. The Tahsildar Tamnar Distt. Raigarh
3. The Sub Registrar Distt. Raigarh ---- Petitioners
Versus
• Kartik Ram S/o Shri Satjugiya Caste- Kanwar R/o Village Lalpur, Tahsil Tamnar,
Distt. Raigarh C.G ---- Respondent

WP227 No. 493 of 2012
1. State Of Chhattisgarh Through The Collector Distt. Raigarh C.G
2. The Tahsildar Tamnar Distt. Raigarh
3. The Sub Registrar Raigarh Distt. Raigarh ---- Petitioners
Versus
• Dayaram S/o Shri Chamara Ram Caste Kalma R/o Village Lalpur Tahsil
Tamnar, Distt. Raigarh C.G ---- Respondent

WP227 No. 485 of 2012
1. State Of Chhattisgarh, Through The Collector, Distt Raigarh C.G.
2. The Tahsildar Raigarh Distt. Raigarh
3. The Sub Registrar Raigarh Distt. Raigarh ---- Petitioners
Versus
• Bhagirathi S/o Shri Sadhram Caste-Kanwar, R/o Village Dolnara, Tahsil-
Tamnar, Distt. Raigarh , Chhattisgarh
---- Respondent

WP227 No. 491 of 2012
1. State Of Chhattisgarh Through The Collector, Distt Raigarh C.G
2. The Tahsildar Tamnar Raigarh Distt. Raigarh
3. The Sub Registrar Raigarh Distt. Raigarh ---- Petitioners
Wp227 490 of 2012 and other cases

Versus
• Ramlal S/o Shri Nanki Ram Caste Birhor R/o Village Hinjar, Tahsil Tamnar Distt.
Raigarh C.G ---- Respondent

WP227 No. 518 of 2012
1. State Of Chhattisgarh through the Collector, District Raigarh CG
2. The Tahsildar Tamnar Raigarh Distt. Raigarh
3. The Sub Registrar Raigarh Distt. Raigarh CG ---- Petitioners
Versus
• Budhani, Wd/o Late Shri Nankiram, Caste- Birhor, R/o Villae Hinjar, Tahsil -
Tamnar, District Raigarh, CG ---- Respondent

WP227 No. 519 of 2012
1. State Of ChhattisgarhThrough The Collector, Distt. Raigarh C.G
2. The Tahsildar, Tamnar, Distt. Raigarh C.G.
3. The Sub Registrar Raigarh Distt. Raigarh CG ---- Petitioners
Versus
1. Sukram S/o Shri Balaram R/o Village Hinjar, Tahsil-Tamnar, Distt. Raigarh C.G
---- Respondent

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For Petitioners                                        : Shri Sandeep Dubey, Dy AG
For Respondents                                        : None appears

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Hon'ble Shri Justice Parth Prateem Sahu CAV Order

1. In WP(227)-490, 488, 493 and 485 of 2012, respective respondents have

not been represented even when the case is taken up for hearing in the second

round.

2. In WP(227)-491, 518 and 519 of 2012, there is no representation on

behalf of respective respondents though served.

3. These cases were earlier listed on 09.03.2022. As there was no

representation on behalf of respondents even when the case is called in the

second round, cases were adjourned for the next week. Again these petitions Wp227 490 of 2012 and other cases

came up for hearing on 16.03.2022. On the said date also no one appeared on

behalf of respondents in both the rounds of call of the case. Again cases were

adjourned for today. Today also no one appeared on behalf of respondents in

both the rounds.

4. Challenge in these writ petitions is to impugned orders passed by Board

of Revenue, Bilaspur, Chhattisgarh (for short, 'Board of Revenue') allowing

applications under Section 8 r/w 165(6)(ii) of Chhattisgarh Land Revenue

Code, 1959 (hereafter referred to as 'Code of 1959'), filed by respective

respondents/applicants, granting permission for sale of immovable property in

name of Pankaj Beriwal (No Tribal person) under Section 165(6)(ii) and 165(7)

of Code of 1959.

5. Shri Sandeep Dubey, learned counsel for the State/petitioners would

submit that private respondents in these writ petitions are members of

Scheduled Tribe (ST) Community. Under provisions of Code of 1959, if any

person belonging to ST Community wants to transfer his/her land by way of

sale, then, he/she is required to take prior permission from the Collector as

provided under 165(6)(ii) of the Code of 1959. The competent authority

prescribed under aforementioned provision is Collector. When under the Code

of 1959, Collector is vested with the jurisdiction to grant permission for sale of

land to Tribal persons, then, it is the Collector, who only can exercise powers of

granting permission and no other authority can grant permission, though it may

be the Board of Revenue. In support of his contention, he places reliance upon

judgment passed in case of State of Chhattisgarh and others Vs Shauki Lal

in WP(227)-7896 of 2011 and other connected matters.

6. Question arises for consideration of this Court in all these writ petitions is

that whether Board of Revenue justified in granting permission for sale of land Wp227 490 of 2012 and other cases

under Section 165(6)(ii) and 165(7) of the Code of 1959, in exercise of

supervisory jurisdiction under Section 8 of the Code. Perusal of applications

filed before Board of Revenue by respective respondents would show that

applications are filed under Section 8 r/w Section 165(6)(ii) {wrongly mentioned

as 165(6)(2)} of the Code of 1959, pleading therein that they entered into an

agreement for sale of their land, details of which are mentioned therein in each

of applications. It is also pleaded that when they visited Office of Sub-Registrar,

they were informed that they are required to seek prior permission from the

Collector, because they belong to ST community. Even the Patwari has

refused to provide 22 point (sale particulars) stating that unless and until they

bring permission for sale of their land from the Collector, he will not be able to

provide 22 point (sale particulars). From the pleading in application filed before

Board of Revenue, it is apparent that private respondents are aware of the fact

that land owned by them can be transferred only after taking prior permission

of the Collector. They directly filed applications before the Board of Revenue

under Section 8 of the Code 1959, seeking permission for transfer of their land

by way of sale in terms of 165(6)(ii) of the Code of 1959.

7. Before proceeding further, I find it appropriate to glance the relevant

provision under the Code of 1959. Under Section 2(d) of the Code, 'Board' is

defined, which reads as under:

Section 2(d) "Board" means the Board of Revenue constituted under Section 3."

8. Section 3 of the Code 1959 is extracted below for ready reference, which

reads as under:

Section 3. Constitution of Board of Revenue.―(1) There shall be a Board of Revenue for Chhattisgarh having a President. (2) In addition to Wp227 490 of 2012 and other cases

the President, the State Government may appoint as many members as it may deem fit.

9. 'Revenue Officer' is defined under Section 2(u) which reads as under:

Section 2(u) "Revenue Officer" in any provision of this Code means such Revenue Officer as the State Government may, by notification, direct to discharge the functions of a Revenue Officer under that provision.

10. Section 11 deals with Revenue Officer, which also is extracted below for

ready reference:

Section 11 Revenue Officers. - There shall be the following classes of the Revenue Officers, namely :-

[Commissioners (including Additional Commissioners)] Settlement Commissioner (including Additional Settlement Commissioners);

Collectors (including Additional Collectors);

Settlement Officers;

Sub-Divisional Officers;

Assistant Collectors;

Joint Collectors (including Deputy Collectors);

Deputy Settlement Officers;

Assistant Settlement Officers;

Tahsildars (including Additional Tahsildars);

Superintendents of Land Records;

Naib Tahsildars;

Assistant Superintendents of Lands Records.

11. Section 165(6) is extracted below for ready reference:

Section 165(6)― Not withstanding anything contained in sub-section

(1) the right of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf, for the whole or part of the area to which this Code applies shall―

(i) in such areas as are predominately inhabited by aboriginal tribes and Wp227 490 of 2012 and other cases

from such date as the State Government may, by notification, specify, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe in the area specified in the notification;

(ii) in areas other than those specified in the notification under clause (i), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of collector, given for reasons to be recorded in writing.

[Provided that the provisions of this sub-section shall not be applicable to the land acquired under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (No.30 of 2013)]

Explanation- For the purposes of this sub-section the expression "otherwise" shall not include lease.

12. Under Section 165(6)(ii) of the Code 1959, the authority competent to

grant permission is mentioned as 'Revenue Officer', not below the rank of

Collector.

13. In Section 165(6)(ii) of Code of 1959, legislature has used the word

'Revenue Officer' not below the rank of 'Collector'. Revenue Officer, as

mentioned in Section 11, is the revenue authority, Commissioner and below

him other Officers including Collector and Additional Collector. In the list of

Revenue Officers as mentioned in Section 11, Board of Revenue is not

mentioned. Member of Board or its President is not notified as 'Revenue

Officer', hence, Board of Revenue under the Code is not having any jurisdiction

to grant permission for sale of land owned by members of ST Community.

Under Section 8 of the Code of 1959, Board has been vested with power of

'superintendence' over all revenue authorities.

14. Section 8 of the Code of 1959 reads as under:

Wp227 490 of 2012 and other cases

8. Powers of superintendence of Board.― The Board shall, in respect of all matters subject to its appellate or revisional jurisdiction, have superintendence over all authorities in so far as such authorities deal with such matters and may call for returns.

15. Perusal of impugned order would show that Board of Revenue has not

passed the order impugned in exercise of appellate or revisional jurisdiction. In

Para-1 of the order it was recorded that applicants approached the Collector,

Raigarh for seeking permission, which was denied and after such action of

denial, applications were filed. Perusal of application filed before Board of

Revenue, Annexure P3 does not whisper that applicants have approached the

Collector by way of filing an application seeking permission under Section

165(6)(ii) of the Code 1959 and they have been denied from entertaining

applications mentioning any reason on any specific date. From perusal of

Annexure P1 and P3, it appears that Board of Revenue, only to invoke

jurisdiction has mentioned that applicant therein approached the Collector, who

refused to accept. The said mentioning of fact by the Board of Revenue is

contrary to application filed by respondents therein. In absence of specific

pleading in applications filed by respondents before the Board of Revenue that

they have ever approached on any specific date or month before the Collector,

seeking permission under Section 165(6)(ii) of the Code 1959, shows that

respondents have directly approached the Board of Revenue by way of filing

application under Section 8 r/w Section 165(6)(ii) of the Code 1959. Under the

Code, as discussed in preceding paragraph that Board of Revenue is not

mentioned to be Revenue Officer under Section 11. Section 165(6)(ii) of the

Code 1959 prescribes Revenue Officer not below the rank of Collector to be

the authority vested with the jurisdiction of for granting permission for transfer

of land of member belonging to ST community to non-tribal person under

Section 165(6)(ii) of the Code.

Wp227 490 of 2012 and other cases

16. The Board of Revenue under its supervisory jurisdiction, if for any reason

found that the Revenue Officer is not acting in accordance with the provisions

under Code of 1959, could have only directed to consider the application in

accordance with law. It could not have assumed the jurisdiction which under

the Code 1959, is not vested upon it. Hence, in the opinion of this Court,

Board of Revenue is not having any jurisdiction to entertain an application

seeking permission for transfer of land under Section 165(6)(ii) of the Code

1959. The impugned order, therefore, is without jurisdiction.

17. In case of Shaukilal (supra), this Court while considering prior

permission required under Section 165(7-b) of the Code1959 for transfer of

land by Kotwars, held as under:

"12. In the light of the proviso to sub-section (3) of Section 158 of the Code, sellers/Kotwars were not competent to transfer the land within the stipulated time and thereafter, they were not competent to transfer the land without permission of the Collector. In the present case, the Kotwars have not applied for permission under Section 165(7-b) of the Code, but have directly approached the Board of Revenue. In the light of statutory requirements, the Board of Revenue was not competent or having jurisdiction to pass the order impugned in contravention of the provisions of the Code and the order passed by this Court in Mela Das's case (supra). The Board of Revenue was not competent to pass the orders impguned even as the Chief Revenue Authority or the Chief Controlling Revenue Authority. The orders passed by the Board of Revenue were beyond its competency. The Board of Revenue was not justified and sompetent in waiving such statutory provisions of directing the Patwari or the Sub Registrar vide the order impugned, even without any order of the Collector under Section 165(7-b) of the Code.

13. Even otherwise, as held by the Supreme Court in the matte of Anil Kumar Jain Vs Maya Jain (2009) 10 SCC 415, an order of waving the statutory requirements can be passed only by the Supreme Court in exercise of its power under Article 142 of the Constitution of India, the said power is not vested with any other authority or Court."

Wp227 490 of 2012 and other cases

18. In case of Shrisht Dhawan (Smt) Vs M/s Shaw Brothers reported in

(1992) 1 SCC 534, Hon'ble Supreme Court has held thus:

"19. ............. What, then, is an error in respect of jurisdictional fact? A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated........."

19. In the scheme of Code of 1959, the Board of Revenue is having

jurisdiction to exercise the power and discharge functions conferred upon it by

or under this Code and such functions of State Government as may be

specified by notifications by State Government. Under the Code, Board is

having power of 'superintendence' in respect of all matters. In exercise of

power of superintendence Board, if it is brought to its knowledge that Revenue

Officer is not functioning as provided under the provisions of the Code, it could

have issued directions to the concerned Revenue Authority to act and function

in accordance with provisions of Code of 1959 but could not have exercised

the jurisdiction vested upon Revenue Officer.

20. In the case at hand, Board of Revenue has granted permission of

transfer of immovable property owned by members of ST Community under

Section 165(6)(ii) and 165(7) of the Code 1959, in an application filed under

Section 8 of Code of 1959, which was not within jurisdiction of Board of

Revenue. Order impugned passed by the Board of Revenue is without

jurisdiction, hence, it is not sustainable in the eyes of law and it is liable to be

set aside.

Wp227 490 of 2012 and other cases

21. Accordinly, writ petitions ar allowed. Orders impugned dated 23.09.2010

in Writ Petitions (227) 490, 488, 493, 485, 491 and 519 of 2012 and Order

impugned dated 24.09.2010 in Writ Petition (227) 518 of 2012 passed by

Board of Revenue, Bilaspur, CG are set aside.