YASHWANT RAJ SINGH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ petition and the Writ Petitions Nos. 5372/97, 5373/97, 5374/97, 5376/97, 5377/97 and 5379/97 have been filed against the common order dated 30th of October, 1995, passed by the Board of Revenue in Civil Revision Nos. 177, 178, 179, 180, 181, 182, 193, 194 and 195-2/92, by which the Board of Revenue has set aside the order passed by the S. D. O. as affirmed by the Collector and the Commissioner holding that the petitioners were 'gond' and as such were entitled to maintain an application under the provisions of Sections 170a and 170b of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the 'code'), for violation of the provision of sub- section (6) of Section 165 thereof.

(2.) THE writ petitioner along with Smt. Shakuntala Devi, Bhoopat Raj Singh and Nar Hari Raj Singh (respondents 6, 7 and 8) are residents of village Tarapur, Tehsil and District Raigarh and claim to be agriculturists having acquired the lands from their ancestors. They filed an application Annexure-P/1 before the Sub-Divisional Officer, Raigarh, under the provisions of Sections 170-A and 170-B of the Code on allegations that they were deprived of their legitimate rights by the respondents 3, 4 and 5 who had got fictitious sale- deeds executed in violation of the provision of Section 165 (6) of the Code. After service of the notice of the application, the contesting respondents raised a preliminary objection regarding maintainability of the proceedings under Sections 170-A and 170-B of the Code, inter alia, on the ground that the applicants were not members of any aboriginal tribe within the meaning of Section 165 (6) of the Code as they were "raj Gond" which was not a notified aboriginal tribe. The preliminary objection was overruled by the Sub-Divisional Officer, against which the appeal filed by the contesting respondents before the Collector as also revision before the Commissioner was dismissed and it was held that 'raj Gond' were basically 'gond' and as such the petitioner belonged to a notified aboriginal tribe. The matter was carried further in a Revision before the Board of Revenue against the order of the Commissioner and the Board of Revenue by the impugned order dated 30th of October, 1995 (Annexure-P/3) took the view that the applicants before the S. D. O. being 'raj Gond' were not members of the 'gond' tribe notified under Section 165 (6) of the Code and were, therefore, not entitled to maintain any proceeding under Sections 170-A and 170-B in respect of the transaction alleged to be in violation of Section 165 (6) of the Code. In view of the order of the Board of Revenue, the Sub-Divisional Officer, Raigarh, vide order Annexure-P/4, dismissed the application. The petitioners have, therefore, challenged the order of the Board (Annexure-P/3) and the consequent dismissal of their application vide Annexure-P/4, to the petition on the ground that 'raj Gond' were also members of the 'gond' tribe and the Board failed to decide the issue correctly.

(3.) THE respondents 3 to 8 have filed their Return in W. P. No. 5371/1998 in which it has been pointed out that the Notification declaring the aboriginal tribes under Section 165 (6) does not include 'raj Gond' as a sub-caste of the Scheduled tribe in the State of Madhya Pradesh. To point out the distinction, it has been averred that while in the State of Maharashtra 'gond', 'raj Gond' and 'raj' have all been declared Scheduled Tribes, but 'raj Gond' though a tribe in M. P. has not been included as a Scheduled Tribe in Madhya Pradesh. It has also been pointed out that since this matter can be decided only on the basis of evidence, the petition under Articles 226 and 227 cannot be entertained. It is, therefore, averred that it was open to the petitioners to have first obtained a declaration of being members of an aboriginal tribe from the Civil Court before proceeding to file any application under Sections 170-A and 170-B of the Code. It has also been pointed out by the contesting respondents that 'raj Gond' have acquired the prefix 'raj' because they were associated with the Royal family of Raigarh, for whom the benefit of the provision contained in sub-section (6) of Section 165 of the Code was never intended.