Chattisgarh High Court
Manoj Singh vs The State Of Chhattisgarh on 25 February, 2025
1
Digitally
signed by SMT
NIRMALA RAO
2025:CGHC:9567
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 537 of 2018
1 - Manoj Singh S/o Krishnaraj Singh Aged About 42 Years R/o
Aawarabhata, Tehsil Dantewara, District West Baster, Chhattisgarh.,
District : Bastar(Jagdalpur), Chhattisgarh
2 - Prashant Singh S/o Krishnaraj Singh Aged About 38 Years R/o
Aawarabhata, Tehsil Dantewara, District West Baster, Chhattisgarh.,
District : Bastar(Jagdalpur), Chhattisgarh
... Petitioners
versus
1 - The State Of Chhattisgarh Through Secretary, Revenue Department
Mantralaya, Mahanadi Bhawan, New Raipur , District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
2 - Rukmani Sori, W/o Sahdev , R/o Village Paalnaar, Tehsil Kouakonda
District Dantewara, Chhattisgarh., District : Dantewada, Chhattisgarh
---- Respondents
For Petitioners : Shri Vijay Shankar Mishra, Advocate
holding the brief of Shri Ashok Soni,
Advocate.
For Respondent/ State : Shri Shubham Bajpayee, P.L.
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
25.02.2025
1. The petitioners purchased a parcel of land admeasuring 0.34
hectares bearing Khasra No.235/3 said to be situated in Village
Kalipur of Jagdalpur Block, District Jagdalpur from respondent
No.2 - Rukmani Sori vide registered sale deed dated 13-6-2010.
Before purchasing the land, respondent No. 2 applied for diversion
of the use and purpose of the land by moving an application before
the Competent Authority under Section 172 of the Land Revenue
Code, 1959 (In short "the Code"). In the diversion proceedings, an
order was passed in the year 2008-09 allowing the application and
permitting the diversion of land from agricultural to residential
purposes. According to the petitioners, the land is situated within
the limits of the Municipal Corporation Jagdalpur and therefore,
situated in an urban area and not in a non-urban area. The
petitioners applied to the Additional Collector for permission to sell
the land, and the Additional Collector granted the permission by an
order dated 12-05-2010.
2. Vide order dated 31-08-2010, the State Government directed the
Commissioner to identify the cases of legal transactions of the sale
involving land belonging to the aboriginal tribes in the notified area.
3. The Commissioner in exercise of the power of suo moto revision,
passed the impugned order on 30-01-2012 setting aside the order
passed by the Additional Collector on 12-05-2010 and remanding
the matter to the Collector for the decision afresh. The order
passed by the Commissioner was challenged by the petitioners
before the Board of Revenue by filing Case No. RN/01/R/A-
21/197/2012. The Board of Revenue vide order dated 7.3.2018
dismissed the appeal filed by the petitioners and upheld the order
of the Commissioner. Thereafter, the petitioners have filed the
present writ petition challenging the order of the Commissioner
dated 30.1.2012 and the order of the Board of Revenue dated
7.3.2018.
4. Learned counsel for the petitioners seeks to challenge the
correctness and validity of the order passed by the Commissioner
in the exercise of the power of suo moto revision by contending
that the Commissioner exceeded its jurisdiction invoking its power
of suo moto revision. Learned counsel for the petitioners argued
that in the case of an appealable order, the power of suo motu
revision cannot be invoked by the revisional authority under
Section 50 of the Code. The order granting permission to sell the
land passed by the Additional Collector on 12-05-2010 was
appealable and therefore, the power of suo moto revision cannot
be invoked. It is then contended that the power of revision has
been exercised after a long delay of one year. The next
submission of learned counsel for the petitioners is that the lands
have been brought within the local limits of the Municipal
Corporation Jagdalpur and are no longer Abadi lands within the
meaning assigned to it under the Code. He also submits that under
a valid proceeding for diversion of land drawn under Section 172 of
the Code on the application of the petitioners, an order was
passed by the Competent Authority granting permission for
diversion. Once the land is diverted and the land is situated within
the limits of the Municipal Corporation, the bar against the transfer
of interest by Bhumiswami belonging to the aboriginal tribe is no
longer applicable under Section 165(6)(i) of the Code, even in
areas which have been notified as predominately inhabited by
aboriginal tribes, by way of notification under 165(6)(i) of the Code.
He further argues that once the land is diverted and ceases to be
used for agricultural purposes, the bar under sub-Section 6 of
Section 165 of the Code ceases to apply. Further submission is
that the Commissioner had exceeded its jurisdiction in directing
further enquiry to be made by the Additional Collector, even
though, no reasons have been assigned in the impugned order as
to why the order of diversion was not found to be in accordance
with law. It is stated that the land was validly diverted, it falls within
the local limits of the Municipal Corporation and it was no longer
agricultural land; the land is situated in an area declared to be
residential area and the petitioners have been granted permission
to develop the land as residential site and the plots having been
sold out for development of residential site, the bar under Section
165(6)(i) of the Code will have no application. In support of his
submissions, learned counsel for the petitioners placed reliance on
the case of Gwalior Sugar Company Limited and another
Versus Anil Gupta and others1, Mewalal Versus Jankibai and
others2, Harjesh Rai Versus Smt. Jyoti Bai and others 3, Aildas
Versus Board of Revenue and others4 and Kamal Singh Narre
Versus State of M.P. and others5.
5. Learned State counsel and counsel for respondent No.2 would
submit that the land is situated in an area which is predominately
inhabited by the aboriginal tribes. According to them, in such a
notified area, there is a complete ban imposed under the law for
the transfer of land of Bhumiswami belonging to the aboriginal tribe
to any other person not belonging to an aboriginal tribe. They
would submit that it came to the notice of the State Government
(2012) 12 SCC 19
1994 Revenue Nirnay 92
1997 Revenue Nirnay 155
1973 JLJ 117
2013 Revenue Nirnay 122
that in such notified areas where prohibition under Section 165(6)
(i) of the Code is applicable, diversion of land is taking place and
thereafter, the lands are being sold to non-tribal. Therefore, the
State Government had to issue necessary directions to the
Commissioner to take up the matter for enquiry in the exercise of
suo moto revisional jurisdiction under Section 50 of the Code.
Learned State counsel further submits that in the notified area,
there is a complete ban on the transfer of any interest of
Bhumiswami belonging to the aboriginal tribe to any other person,
who does not belong to the aboriginal tribe. Therefore, irrespective
of whether the land has been diverted or not or whether it is being
used for agricultural purposes or not, it cannot be sold out by the
aboriginal tribe to a person not belonging to the category of the
aboriginal tribe, because the land is situated in the notified area.
Therefore, the Commissioner rightly exercised his suo moto power
of revision to set aside the order of grant of permission dated 12-
05-2010 passed by the Additional Collector. It is further contended
that the Commissioner also noticed that the grant of permission for
the diversion of land was also not in accordance with the
provisions contained in Section 172 of the Code. Considering all
those aspects, after setting aside the order of the Additional
Collector, the matter has been remanded to the Additional
Collector for consideration afresh by the Commissioner. Hence,
there is no illegality in the impugned order and the petition is not
maintainable. They would further submit that the power of suo
moto revision available to the Commissioner under Section 50 of
the Code, is not abrogated in case of appealable orders. According
to them, the provision that no revision application shall be
entertained against an order, which is appealable, is operative only
against an application of revision that may be filed by any party
and does not affect suo moto revisional jurisdiction.
6. Learned counsel for respondent No.2 has placed reliance on the
judgments passed by the Hon'ble Division Bench of this Court in
the matter of (K.S. Sujeeth vs. State of Chhattisgarh & Ors.) in
W.A. No. 187 of 2017 and Paramjit Singh vs. State of
Chhattisgarh, W.A. No.541 of 2017 & Another. Reliance has
also been placed on the judgment of the Hon'ble Single Bench of
this Court rendered in the matter of Smt. Neelima Belsaria vs.
State of Chhattisgarh and Ors., WP(C) No.3241 of 2011 & two
other cases and the judgment passed by the Hon'ble Supreme
Court in the matter of Y. Thankachan vs. State of Chhattisgarh
and Ors. in Special Leave to Appeal (C) No. 11324 of 2019.
7. The order passed by the Commissioner in revision has been firstly
challenged on the ground that as the order passed by the
Additional Collector on 12-05-2010 was appealable one, the power
of suo moto revision could not be invoked, hence the order passed
by the Commissioner is in excess of jurisdiction. However, this
objection is liable to be rejected at the threshold in view of the
provisions contained in Section 50 of the Code. The power of
revision has been reserved to various revenue authorities including
the Commissioner to call for and examine the records, in a case
pending before or disposed of for the purpose of satisfying itself as
to the legality and propriety of the order passed by subordinate
Revenue Officers. Proviso (i) restricts the exercise of the power of
revision by providing that no application for revision shall be
entertained against an order covered by any of the clauses (a), (b)
& (c). One such is an order appealable under the Code. The bar,
however, is against entertaining an application for revision against
an appealable order. Therefore, on a rational consideration and
interpretation of the aforesaid provision, it has to be held that the
bar is against entertaining application against the revision, which is
appealable under the Code. Therefore, the bar does not extend to
the power of suo moto revision by the competent revisional
authority, as the exercise of the power of suo moto revision is
different from the exercise of revisional jurisdiction on an
application of any party. Therefore, whether or not the order is
appealable, the power of suo moto revision reserved to competent
authorities under Section 50 of the Code is always available and
such power is not abrogated merely because the order sought to
be taken up for suo moto revision, is an order appealable under
the Code. The objection in this regard is therefore rejected.
8. The order passed by the Commissioner in the exercise of the
power of suo moto revision under Section 50 of the Code held that
the order passed by the Additional Collector granting permission
for the sale of plot vide order dated 12-05-2010 is illegal in view of
the ban on the transfer of interest of Bhumiswami belonging to
aboriginal tribe in any land situated in the notified area under the
provisions of Section 165(6)(i) of the Code. It would therefore be
relevant to examine the statutory scheme in that regard.
9. Section 165 makes provision regarding the rights of Bhumiswami.
Sub-section (1) thereof provides that subject to other provisions of
this section and the provisions of Section 168, a Bhumiswami may
transfer any interest in his land. Sub-section (6) however imposes
a fetter on the transfer of the right of a Bhumiswami belonging to a
tribe which has been declared to be an aboriginal tribe by the State
Government. Sub-section (6) of Section 165 being relevant, is
extracted hereinbelow:-
6. Notwithstanding 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."
A perusal of the aforesaid provision would reveal that in
areas specified in clause (i), there is a total ban on the transfer of
the right of Bhumiswami belonging to the aboriginal tribe to a
person not belonging to such tribe in the areas specified in the
notification.
In the areas specified in clause (ii), the transfer of rights is
not prohibited but regulated by providing that no transfer shall take
place without the permission of the Revenue Officer not below the
rank of the Collector.
10.The provision creating an embargo on the transfer of the right of
Bhumiswami belonging to a tribe which has been declared to be
an aboriginal tribe in areas, which are predominately inhabited by
aboriginal tribes notified as such under Section 165(6)(i) of the
Code, is absolute in nature and does not admit of any exception. It
is a complete ban. Subject to other provisions contained in Section
165, the embargo does not allow the transfer of the right of such
Bhumiswami in notified areas as referred to herein above. Such a
stringent provision has been made in order to protect the
Bhumiswami rights of aboriginal tribes in the notified areas. The
legislative intention is clear that in areas notified as above, rights of
Bhumiswami belonging to the aboriginal tribe notified by the
government on that behalf, rights shall not be transferred nor 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.
11.Even if it were assumed that the subject land is situated in an area
which is now brought within the local limits of the Municipal
Corporation Jagdalpur, the seminal question arising for
consideration is whether the embargo on transfer of rights of
Bhumiswami covered by the provisions contained in Section
165(6)(i) is taken away or to say, ceases to apply.
12.On a plain reading of the provision contained in Section 165(6) or
any other sub-sections or any other provisions contained in the
Land Revenue Code, it nowhere expressly or by necessary
implication removes the embargo on the transfer of the right of
Bhumiswami belonging to the aboriginal tribe in the area notified
under Section 165(6)(i) of the Code. Therefore, this Court is unable
to hold that in cases, where land is diverted from agricultural
purposes to residential purposes and included in an urban area,
restriction on the transfer of the right of a Bhumiswami belonging
to an aboriginal tribe in a notified area will cease to apply. In other
words, irrespective of whether the land is diverted one and/or
situated within the limits of a Municipal Corporation and therefore,
in an urban area, the embargo on transfer of right as referred to
above continues unhindered.
13.Learned counsel for the petitioners could not bring to the notice of
this Court any provisions contained either in the Chhattisgarh
Municipal Corporation Act or Chhattisgarh Nagar Tatha Gram
Nivesh Adhiniyam or any other law for the time being in force
which makes special provisions to the effect that in respect of the
land held by a Bhumiswami belonging to aboriginal tribe in notified
area, included within the limits of the Municipal Corporation or
situated in an urban area and there being diversion of land from
agricultural to non-agricultural purpose, bar against transfer of
rights to any person other than such aboriginal tribe shall not
operate.
14.Learned counsel for the petitioner has placed reliance on the
judgment passed by the Division Bench of Madhya Pradesh High
Court in the case of Aildas, Harjesh Rai and Kamal Singh Narre
(supra). In that case, it was held that the provisions contained in
sub-sections (5) & (7) of Section 165 of the Code would not apply
in the case of Najul land situated in an urban area. However, the
facts of the present case are distinguishable from the facts of the
present case.
15.Learned counsel appearing for the petitioner has also placed
reliance on the judgment passed by the Hon'ble Supreme Court in
the case of Gwalior Sugar Company Limited (supra). In that
case, a lease was granted in favour of the mill, and there was no
specific clause or condition restricting the right of the appellant to
transfer any part of the land. Thus, the facts of that case were
entirely different from the facts of the present case.
16.In view of the above discussions, the order passed by the
Commissioner suo moto in Revision No.63/A-21/2010-11 dated
30.1.2012, whereby the order granting permission to sell land from
an aboriginal Tribe to a Non-Tribal, as per the permission order
dated 12.5.2010, was set aside, does not require any interference.
Similarly, the order passed by the Board of Revenue in RN/01/R/A-
21/197/2012 vide order dated 7.3.2018 also does not require any
interference.
17.Taking into consideration the above-discussed facts and the orders
passed by the Hon'ble Division Bench, the Hon'ble Single Bench
of this Court and the order passed by the Hon'ble Supreme Court
in the matter of Y. Thankachan (supra), this writ petition fails and
is hereby dismissed.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
