Mo. Khalil vs Vifna And Ors
2022 Latest Caselaw 254 Chatt

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                                                                   NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR
                      WP(227) No. 460 of 2015
                   Order Reserved on 29.11.2021
                   Order delivered on 14.01.2022
   Mo. Khalil S/o Jamuluddin Aged About 55 Years R/o Village Pasta Tahsil
   Pal, P.S. And District Balrampur, Ramanujganj, Chhattisgarh.
                                                           ---- Petitioner
                              Versus
1. Vifna S/o Mundala R/o By Caste Nagesiya R/o Village Pasta Tahsil Pal,
   P.S. And District Balrampur - Ramanujganj, Chhattisgarh.
2. Devnath S/o Ghura R/o By Caste Nagesiya R/o Village Pasta Tahsil Pal,
   P.S. And District Balrampur - Ramanujganj.
3. Sakal S/o Ghura R/o By Caste Nagesiya R/o Village Pasta Tahsil Pal,
   P.S. And District Balrampur - Ramanujganj.
4. Ramdhani S/o Chhaihat R/o By Caste Nagesiya R/o Village Pasta Tahsil
   Pal, P.S. And District Balrampur - Ramanujganj.
5. Vidheshwari S/o Baglo R/o By Caste Nagesiya R/o Village Pasta Tahsil
   Pal, P.S. And District Balrampur - Ramanujganj.
6. Rameshwar S/o Baglo R/o By Caste Nagesiya R/o Village Pasta Tahsil
   Pal, P.S. And District Balrampur - Ramanujganj.
7. Paremshwar S/o Boglo R/o By Caste Nagesiya R/o Village Pasta Tahsil
   Pal, P.S. And District Balrampur - Ramanujganj.
8. The Additional Collector Ramanujganj, District Balrampur Ramanujganj
   Chhattisgarh.
9. The Sub Divisional Officer, (Ra) Ramanujganj District Balrampur
   Ramanujganj Chhattisgarh.
10. The Additional Commissioner, Surguja Division Ambikapur, District
    Surguja Chhattisgarh.
                                                       ---- Respondents

For Petitioner                     : Shri Sunil Tripathi, Advocate.
For Respondents No. 1 to 7         : Shri Shrawan Agrawal, Advocate.

For Respondents No. 8 to 10/ State : Shri R.K. Bhagat, G.A.

Hon'ble Shri Justice Rajendra Chandra Singh Samant

CAV Order

Heard.

1. This petition has been brought being aggrieved by the order dated

12.5.2015 passed by the learned Additional Commissioner/ respondent

No.10, dismissing the revision petition and upholding the order dated

30.3.2005 passed by the Sub-Divisional Officer (Revenue)/ respondent

No.9 and the order dated 29.9.2007 passed by the Appellate Authority,

Additional Collector/ respondent No.8.

2. The facts of the case are that the petitioner had purchased a land by a

registered sale deed dated 16.11.1993 from one Ramvriksha Yadav,

who had purchased the same from respondent No.1 - Vifna. It is

submitted by the learned counsel for the petitioner that respondent No.1

is not a member of aboriginal tribe. His caste is kisan (Nagesia).

Patwari, halka No.19, village Pasta submitted a report before

respondent No.8 that the land purchased by the petitioner earlier

belonged to the member of aboriginal tribe. Respondent No.8 by order

dated 30.3.2005 initiated a proceeding under Section 170(B)(1A) of the

Chhattisgarh Land Revenue Code, 1959 (Annexure-P/4) and that on

this basis that the land in question earlier belongs to the members of

aboriginal tribe, the sale transaction was declared void and reversion

order was passed. The appeal preferred before the Additional Collector

has been dismissed by order dated 29.9.2007 (Annexure-P/5) and the

revision preferred before the Additional Commissioner has also been

dismissed by the impugned order dated 12.5.2015 (Annexure-P/1).

3. It is submitted by counsel for the petitioner that the impugned orders are

erroneous and unsustainable. The report given by Patwari was totally

baseless. The document of settlement (Annexure-P/2) shows that the

father of respondent No.1 was kisan by caste, which is not an aboriginal

tribe, however, the another settlement document of the year 1938

mentions the ancestor of respondent No.1 as Nagesia. Clearly the

kisan and Nagesia are different castes and an enquiry was required to

be made. No such enquiry was made by respondent No.8 and only on

the basis of the report submitted by the Patwari, the impugned order has

been passed.

4. Learned counsel for the petitioner has relied on the judgment of this

Court in the case of Chhedisao vs. Ranglal and Ors., reported in

2014(3) C.G.L.J. 21, in which it was clearly held that the kisan

community of Chhattisgarh cannot be treated as Scheduled Tribe, and

therefore, the impugned order has been passed without following the

procedure and against the provisions of law, which are not sustainable.

5. Learned counsel for the private respondents opposes the submissions

and submits that the judgment of Chhatttisgarh High Court in the case of

Chhedisao vs. Ranglal and Ors. (supra) is not applicable to the

present case. Notification declaring the private respondents as

members of aboriginal tribe is ineffective regarding which, there is

mention in the impugned order. Therefore, all the orders passed are

sustainable. Hence, the petition is without any substance and liable to

be dismissed.

6. Learned State counsel representing for respondents No.8, 9 & 10

opposes the submissions of the petitioner's counsel and submits that

the learned Sub-Divisional Officer, Additional Collector and the

Additional Commissioner all have not committed any error in passing

the orders. Hence, the petition is liable to be dismissed.

7. In reply, it is submitted by counsel for the petitioner that the petitioner is

mainly challenging the report of Patwari. According to which, the private

respondents have been held to be members of aboriginal tribe whereas,

the notification in that respect is without any authority.

8. Considered on the submissions. On perusal of the order of respondent

No.8 dated 30.3.2005, it is found that the order is based only on the

report submitted by the Patwari. No other enquiry was held by the

learned Sub-Divisional Officer as per the requirement under Section

170(B) sub-section (3) of the Chhattisgarh Land Revenue Code, 1959.

The enquiry means that the parties concerned have to be given

opportunity of hearing. There is nowhere mentioned in the order dated

30.3.2005 (Annexure-P/4) that the petitioner submitted any reply, raised

any objection or that he had any opportunity to oppose the report

submitted by the Patwari. Hence, there is a clear violation of the

procedure as laid down under Section 170(B)(3) of the Code, 1959. The

other relevant point raised is with regard to the social status. There is

mention in the impugned order that notification No.A-10-5/25-3/2010

dated 4.2.2011 regarding transaction prior to the year 2011 dated

4.2.2011 cannot re-opened. In the case of Chhedisao vs. Ranglal and

Ors. (supra), this High Court has observed that a notification issued

under clause 1 of Article 342 of the Constitution of India specifying

scheduled tribes can be amended by law to be made by the parliament

and no other authority and thus, it is not open to the State Governments

or Courts or Tribunals or any other authority to modify, amend or alter

the list of Scheduled Tribes specified in the notification issued under

clause (1) of Article 342 of the Constitution of India.

9. Reliance has been placed on the judgment of Supreme Court in the

case of State of Maharashtra vs. Milind, reported in (2001) 1 SC 4,

which was a judgment by the Constitution Bench of Supreme Court. It

was further observed by the learned Single Bench that the circular dated

4.3.2011 passed by the State Government was erroneous and

ineffective. Hence, it was a matter in which a proper enquiry was

required to be held.

10. On the basis of the discussions made herein-above, this petition is fit to

be allowed, which is allowed. The impugned order and the orders dated

12.5.2015, 30.3.2005 and 29.9.2007 passed by the Additional Collector,

Sub-Divisional Officer and the District Collector are quashed.

Respondent No.8 is directed to make an enquiry afresh as per the

provisions under Section 170(B)(3) of the Code, 1959 and pass an

appropriate order, in accordance with law.

Sd/-

(Rajendra Chandra Singh Samant) Judge Nimmi