MOTILAL Vs. JHAMMAN

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India, seeking to invoke supervisory jurisdiction of this Court, is directed against order dated 31st January 2007 passed by the Board of Revenue, Chhattisgarh, Bilaspur, whereby petitioner's revision has been dismissed, affirming orders passed by subordinate revenue authorities in the matter of dispute relating to validity of sale of disputed land in favour of original petitioner- Motilal, in course of auction proceedings towards recovery of loan due and payable to Cooperative Land Development Bank.

(2.) Disputed land admeasuring 2.07 acres comprised in various khasra numbers in village- Pucheli, P.H. No.28 of Tehsil-Mungeli originally belonged to one Rupau Gond in his bhumi-swami rights. Rupau Gond obtained loan from Cooperative Land Development Bank, Pathariya for installing a pump and digging well. As the loan and interest thereon payable to the Bank by said Rupau could not be repaid, the disputed land which was mortgaged with the Bank by Rupau Gond, was put to auction towards realization of loan payable to the Bank. In the auction proceedings held on 7.4.1979, original petitioner- Motilal purchased the same for consideration of Rs.8,200/-, he obviously being the successful bidder offering the highest price. It, however, appears that as the property was sold for Rs.8,200/- whereas the total amount repayable to the Bank was Rs.7869/-, requiring a balance of Rs.336/- to be given to Rupau Gond, a complaint was made before the SDO (R) Mungeli, who registered a case, recorded statements and after holding enquiry, passed an order on 10.3.1997 holding that the sale was in violation of Section 165 (6)/170-B of the Land Revenue Code. On such findings, he passed an order directing return of the land to Jhamman, son of Rupau. Aggrieved by the said order, Motilal preferred an appeal which was dismissed by the Additional Collector vide order dated 23rd January 1999. The order was challenged by way of revision, though unsuccessfully, before the Board of Revenue, which passed the impugned order giving rise to present petition.

(3.) Learned counsel appearing for the petitioners made pointed submission that the finding of the Board of Revenue and other subordinate revenue authorities that the sale was in violation of provision contained in Section 165 (6)/170-B of the Land Revenue Code is based on patent misreading of the relevant provision of law and in complete misconstruction of the effect and impact of non-obstante clause in the form of sub-Section (9) of Section 165 of the Code. He would argue that present is a case where the land was not taken from a private person, but it was purchased in auction from a Cooperative Land Development Bank. Though ordinarily, land belonging to an aboriginal tribe could not be sold without due permission of the Collector, as mandatorily required under Section 165 (6) of the Land Revenue Code, sub-Section (9) thereof carved out an exception that such a provision will have no application where transfer of right is towards securing payment of advance made by Cooperative Society or where the Society has right to sell such property for recovery of advance. The revenue Courts committed patent illegality in applying the settled principle of law with regard to effect of non-obstante clause. If the interpretation as put to the scheme of Section 165 by the revenue Court is accepted, sub-Section (9) will virtually become otiose.