Chattisgarh High Court
State Of Chhattisgarh And Ors vs Ghasiya Ram And Ors on 11 April, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR______
Order reserved on 17.03.2022
Order pronounced on 11.04.2022
WP227 No. 126 of 2013
1. State Of Chhattisgarh, through the Collector, PS Chakradhar Nagar, District
Raigarh, CG
2. The Tahsildar, Raigarh PS Chakradhar Nagar, District Raigarh, CG
3. The Sub Registrar, Raigarh PS Chakradhar Nagar, District Raigarh, CG
---- Petitioners
Versus
1. Ghasiya Ram, aged about 52 years, S/o Shri Kadalu, by Caste-Kharia, R/o
Village Bankhep, PS Sitapur, Raigarh, Tahsil and District Raigarh CG
2. Sushil Kumar Agrawal, S/o Shri Shiv Kumar Agrawal, R/o Kotara Road,
Raigarh, PS Kotara Road, District Raigarh CG
3. The Board of Revenue, Chhattisgarh, Bilaspur
---- Respondents
WP227 No. 116 of 2013
1. State Of Chhattisgarh Through The Collector, Ps Chakradhar Nagar, Distt
Raigarh, CG
2. The Tahsildar Raigarh PS Chakradhar Nagar, Distt Raigarh, CG
3. The Sub Registrar Raigarh, PS Chakradhar Nagar, Distt Raigarh, CG
---- Petitioners
Versus
1. Rasiya Ram, aged about 55 years, S/o Kadalu R/o Vill Pandaripani (east), P.S.
Chakradhar Nagar, Tah And Distt Raigarh, CG
2. Sushil Kumar Agrawal S/o Shiv Kumar Agrawal R/o Kotara Road, Raigarh, Distt
Raigarh, CG
3. The Board Of Revenue Distt Bilaspur, CG
---- Respondents
For Petitioners : Shri Sandeep Dubey, Dy AG
For Respondents : None appears
------------------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Parth Prateem Sahu
CAV Order
1. In WP227 126 of 2013, respondent-1 Ghasiya Ram is shown to be
served, but there is no representation on his behalf; respondent-2 Sushil
Kumar Agrawal is represented by an Advocate, but when the case is taken up
for hearing, no one appeared on his behalf.
Wp227 126 of 2013 and 116 of 2013
2. 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, case was adjourned for the next week.
3. These two petitions came up for hearing again 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 case was adjourned. Today also no one appeared on
behalf of respondents in both the rounds.
4. Challenge in these writ petitions is to the impugned orders dated
22.10.2010 (Annexure P1) passed by the Board of Revenue, Bench at
Bilaspur, Chhattisgarh, whereby Board of Revenue, Bilaspur allowing the
applications filed by private respondents under Section 8 of the Chhattisgarh
Land Revenue Code, 1959 (for short, 'Code of 1959'), granted permission for
transfer of land in question in favour of respondent-2 under Section 165 (6)
and 165 (7) of the Code of 1959.
5. Shri Sandeep Dubey, learned State Counsel would submit that private
respondents have filed an application under Section 8 of the Code of 1959,
seeking direction to respondent-3/Dy Registrar, Raigarh for registering sale
deed without prior permission of the Collector. Learned counsel submits that
Board of Revenue, while considering the application under Section 8 of the
Code of 1959, could not accord permission to transfer the land under Section
165(6) and 165(7) of the Code of 1959, as the jurisdiction under
aforementioned provision to grant permission is vested with the Collector and
other superior Revenue Officer. Order impugned passed by the Board of
Revenue is per se illegal. In support of his contention he places reliance upon
judgment dated 21.02.2012 passed by this Court in Writ Petition(227)-7896 of
2011 and other connected cases. He submits that as the Board of Revenue
Wp227 126 of 2013 and 116 of 2013
was not having jurisdiction to grant permission under Section 165(6) and
165(7) of the Code of 1959, impugned orders are void hence they be set
aside.
6. I have heard learned counsel for the petitioners/State. Perused
documents placed along with writ petition.
7. Perusal of Annexure P2 would show that these are applications filed by
private respondents under Section 8 of the Code of 1959, pleading therein that
when they went for execution of sale deed before NA3/Dy Registrar, Raigarh.,
they were asked to bring permission of Collector for transfer of their immovable
property/land. Upon further seeking clarification from Office of Dy Registrar, it
is informed that the Collector has imposed ban upon transfer of property of
land owned by Khadiya caste. Applicants therein/private respondents do not
belong to Schedule Tribe community. Hence, prior permission is not required,
and prayed that direction be issued to Dy Registrar, Raigarh for getting the
sale deed registered by the land owned by those applicants/private
respondents.
8. Perusal of impugned order Annexure P1 would show that Board of
Revenue in Para-7 of its order even after recording that Khadiya caste is not
included in list of Scheduled Tribe and thereafter, recorded that permission is
granted to transfer of land by applicants/private respondents in favour of one
Susheel Kumar Agrawal under Section 165(6) and 165(7) of the Code of 1959.
Under Scheme of the Code, Board of Revenue is not having jurisdiction to
grant permission either under Section 165(6) or 165(7) of Code of 1959.
Wp227 126 of 2013 and 116 of 2013
9. 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."
10. 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
the President, the State Government may appoint as many members as it
may deem fit.
11. '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.
12. 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;
Wp227 126 of 2013 and 116 of 2013
Assistant Settlement Officers;
Tahsildars (including Additional Tahsildars);
Superintendents of Land Records;
Naib Tahsildars;
Assistant Superintendents of Lands Records.
13. 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
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.
14. 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.
15. 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
Wp227 126 of 2013 and 116 of 2013
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.
16. Section 8 of the Code of 1959 reads as under:
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.
17. In view of aforementioned provisions under the Code of 1959, Board of
Revenue has not been mentioned as Revenue Officer under Section 11. Under
Section 165(6)(ii), competent authority to grant permission is Revenue Officer,
not below the rank of Collector and under Section 165(7), competent authority
to grant permission is the Collector. As under provisions of the Code of 1959,
authority competent to grant permission is specified, the Board of Revenue not
being a Revenue Officer is not having jurisdiction to grant permission under
Section 165(6) or 165(7) of the Code of 1959. In the impugned order, Board of
Revenue has granted permission for transfer of land under aforementioned two
provisions to which he is having no jurisdiction, hence the impugned order is
not sustainable in the eyes of law.
18. This court in WP (227)-7896 of 2011 and other connected matters, while
considering the exercise of the jurisdiction by Board of Revenue under Section
8 of the Code of 1959 for granting permission of sale of land which was
Wp227 126 of 2013 and 116 of 2013
possessed by Kotwar under Section 158 (3) of the Code of 1959, has held
thus:
"11. Rights of the Kotwars are squarely covered by the proviso to sub-section
(3) of Section 158 of the Code and the provisions of Section 165(7-b) of the
Code. In Mela Das's case (supra), this Court has held tht entries made in
revenue record including Rin Pustika and restrictin to sell such land is in
consonance with the provisions of the Code and the rules made thereunder
and same are in the interest of the rights of Bhumiswamis.
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 nto 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 ws not
competent to pass the orders imjpugned 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 competent in waiving such statutory provisions or 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."
19. 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........."
Wp227 126 of 2013 and 116 of 2013
20. After discussing the provisions under the Code of 1959, I find it
appropriate to extract relevant portions of the order as under:
"OkknHkwfe ds vuqca/k vuqlkj vkosnd dks lq'khy dqekj vxzoky ds i{k esa fodz; djus ls
lafgrk dh /kkjk 165 (6) ,oa 165 (7) ds rgr~ vuqefr nh tkrh gS A"
21. In the impugned order, the Board of Revenue also granted permission for
sale of land under Section 165(6) and 165(7) of the Code to which the Board of
Revenue is not having the jurisdiction.
22. For the foregoing discussion, facts and circumstances of the case, and
ruling of Hon'ble Supreme Court, impugned order dated 22.10.2010 passed by
the Board of Revenue, Bilaspur, Chhattisgarh are liable to be and they are
hereby set aside. Writ Petitions are allowed.
23. Considering the facts as pleaded in applications and further, discussion
of Board of Revenue in impugned order, cases are remitted back to the Board
of Revenue for considering applications filed by respective private
respondents/applicants under Section 8 of the Code of 1959 afresh and to
pass orders afresh in accordance with law.
Sd/-
(Parth Prateem Sahu)
JUDGE
padma
