Bholanath vs Sonsingh
2022 Latest Caselaw 6603 Chatt

                                                                                               NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR

                             Writ Petition (C) No.2208 of 2019
    1. Bholanath, S/o Late Sahadev, aged about 75 years,
    2. Banmali, S/o Late Sahadev (died, wrongly mentioned in impugned
       order though in memo of appeal name of Banmali is already deleted)
         2a.     Khemeshwar Joshi, S/o Late Banmali, aged about 55 years,
         2b.     Shiv Kumar Joshi, S/o Late Banmali, aged about 45 years,
         2c.     Vijay Joshi, S/o Late Banmali, aged about 43 years,
         2d.     Dinesh Joshi, S/o Late Banmali, aged about 38 years,
         2e.     Smt. Lachani Panigrahi, D/o Late Banmali, aged about 40 years,
         2f.     Smt. Geeta Panigrahi, D/o Late Banmali, aged about 34 years,
    3. Ganesh Prasad, S/o Late Sahadev, aged about 70 years,
    4. Radheshwari, W/o Bholanath, aged about 70 years,
    5. Vimla Bai, Wd/o Banmali, aged about 65 years,
    6. Dalmati, W/o Ganesh Prasad, aged about 60 years,
         All R/o Village Kumrawand, Tahsil Jagdalpur, District Bastar,
         Chhattisgarh
                                                        ---- Petitioners
                                versus

    1. Sonsingh, S/o Bondku, aged about 69 years,
    2. Fagnu, S/o Sukhram,
    3. Ramsai, S/o Sonsingh,
    4. Raghunath, S/o Sonsingh,
    5. Goverdhan, S/o Sonsingh,
         All Respondents Caste Dhruva and R/o Village Palli, Tahsil Jagdalpur,
         District Bastar, Chhattisgarh
    6. The Collector Bastar, at Jagdalpur, Chhattisgarh
    7. The Sub Divisional Officer (Revenue), District Bastar, Chhattisgarh
                                                                                 --- Respondents

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For Petitioners : Shri B.P. Sharma, Shri M.L. Sakat and Ms. Sameeksha Gupta, Advocates For Respondents No.1 to 5 : Shri Rohit Sharma, Advocate For Respondents No.6 & 7 : Shri Pawan Kesharwani, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel

Order on Board 4.11.2022

1. With the consent of Learned Counsel appearing for the parties, the

matter is heard and decided finally.

2. The instant writ petition has been filed against the order dated

18.6.2019 passed by the Commissioner, Bastar Division, Jagdalpur

in Revision Case No.201604950100012/28/A-23/2016-17, whereby

the Commissioner has set aside the order passed by the Sub

Divisional Officer (Revenue), Jagdalpur dated 22.9.2015 and also

set aside the order dated 29.2.2016 passed by the Collector,

Bastar.

3. Respondents 1 to 5 herein filed an application before the Sub

Divisional Officer (Revenue), Jagdalpur under Section 170(B) of the

Chhattisgarh Land Revenue Code (henceforth 'the LR Code') which

was registered as Revenue Case No.2/A-23/2013-14. The

Petitioners filed their reply/objection and stated that the case under

Section 170(B) of the LR Code is not maintainable because there

was no transaction of the land in question amongst tribal and non-

tribal in between 2.10.1959 and 1980. The Sub Divisional Officer

(Revenue) rejected the application filed by Respondents 1 to 5

herein holding that there was no transaction amongst the tribal and

non-tribal in between 2.10.1959 and 1980 and hence the provision

of Section 170(B) of the LR Code is not applicable. Against the

said order, the Respondents filed an appeal before the Collector,

Bastar, which was registered as Revenue Case No.7/A-23/2015-

16. The Collector also, after hearing the parties, rejected the

appeal by order dated 29.2.2016. Being aggrieved by the order

dated 29.2.2016, the Respondents filed the above-named revision

before the Commissioner, Bastar Division. The Commissioner,

after hearing the parties, passed the impugned order dated

18.6.2019 and set aside both the orders of the Collector and the

Sub Divisional Officer as mentioned above and also directed the

Tahsildar, Jagdalpur to mutate the names of the Respondents in

the records of the land in dispute. The Commissioner also directed

to hand over the possession of the land to the Respondents.

Hence, the instant writ petition.

4. Learned Counsel appearing for the Petitioners submits that the

impugned order passed by the Commissioner is bad in law. In this

case, transfer of the land in dispute has not taken place in between

2.10.1959 and 1980 and by the order of the revenue authority the

disputed land has been coming in the name of the ancestor of the

Petitioners in the year 1937. Therefore, the provision of Section

170(B) of the LR Code is not applicable to the instant case. The

Commissioner has passed the impugned order without application

of mind on the provision of Section 170(B) of the LR Code. Further,

referring to paragraph 7 of the impugned order, the Learned

Counsel submits that the Commissioner passed the impugned

order relying the judgment passed by this Court in Dhamtaria

Laxman v. State of Chhattisgarh, 2014 CGRJ 44 ignoring the fact

that in Review Petition No.204 of 2013 the judgment of Dhamtaria

case (supra) was found to be erroneous and per incuriam by this

Court. Therefore, it is prayed by the Learned Counsel that the

matter may be remanded back to the Commissioner for deciding

the revision afresh after affording proper opportunity of hearing to

the parties considering the judgment of this Court dated 27.1.2015

passed in Review Petition No.204 of 2013 (Dhamtaria v. State of

Chhattisgarh).

5. Learned Counsel appearing for the private Respondents opposes

the arguments raised on behalf of the Petitioners. However, it is

submitted by him that if the matter is remanded back to the

Commissioner then the Commissioner may also be directed that

the documents filed by him in the Registry of this Court today on

behalf of the private Respondents may also be considered by the

Commissioner.

6. I have heard Learned Counsel appearing for the parties and

perused the impugned order and other material available with due

care.

7. The Commissioner passed the impugned order relying the

judgment on Dhamtaria case (supra) and held that the provisions of

Section 170B of the LR Code will also be attracted to the purchase

of the land made before 2.10.1959. According to the pleadings of

the Petitioners herein, by order of the revenue authorities the

disputed land has been coming in the name of the ancestor of the

Petitioners in the year 1937. The judgment of Dhamtaria case

(supra) passed by this Court was reviewed in Review Petition

No.204 of 2013. Vide order dated 27.1.2015 passed in that review

petition, relying the order passed by this Court in Writ Petition

No.1066 of 2002 it was held by this Court that the amended

provision of Section 170B of the LR Code will only apply to the

transaction done between 2.10.1959 till 24.10.1980. Thus, it is

clear that in the order dated 27.1.2015 passed in the said review

petition the judgment of Dhamtaria case (supra) was found to be

erroneous and per incuriam by this Court. Therefore, the impugned

order passed by the Commissioner, relying the judgment of

Dhamtaria case (supra), is not sustainable.

8. Resultantly, the impugned order passed by the Commissioner is set

aside. The matter is remanded back to the Commissioner to

decide the revision afresh after affording opportunity of hearing to

the parties in accordance with law as early as possible preferably

within a period of six months from the receipt of this order. The

instant writ petition is allowed in the aforesaid terms.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal