Dhirendra Nath Sharma vs State Of Madhya Pradesh And Anr.

on 28 November, 1985

Madhya Pradesh High Court

Dhirendra Nath Sharma vs State Of Madhya Pradesh And Anr. on 28 November, 1985
Equivalent citations: AIR 1986 MP 122
Author: A C Verma
Bench: J Verma, A C.J., B Lal
JUDGMENT J.S. Verma, Acg. C.J.

1. The challenge made in this petition is to the constitutional validity of Section 170-A and Section
170-B of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code) as well as the
notification No. F-16-1-81-II-XXV, dated 15th April 1981 (Annexure-A) issued by the Governor of
Madhya Pradesh in exercise of the powers conferred by sub-para (1) of para 5 of the Fifth Schedule
to the Constitution of India. This order shall also dispose of the entire batch of petitions in which the
validity of these provisions has been challenged on account of which all these petitions were heard
together.

2. The history of legislation together with the relevant provisions may be stated at the outset. The
M.P. Land Revenue Code, 1959, came into force with effect from 2-10-1959. Section 165 relates to
rights of transfer and in Sub-section (1) it says that a Bhumiswami may transfer any interest in his
land subject to the other provisions of this section and the provisions of Section 168. Section 168
deals with leases and restricts the grant of lease by a Bhumiswami beyond the period specified
except by a Bhumiswami belonging to one of the specified categories, for example, a widow, a minor
etc., in whose case cultivation of the land directly is considered impracticable. Section 169 provides
for the effect of an unauthorised lease resulting in accrual of rights of an occupancy tenant on the
lessee giving rise to the further consequences mentioned in Sections. 189 and 190 of the Code, i.e.
conferral of Bhumiswami rights on an occupancy tenant in the circumstances mentioned therein.
Sub-section (6) of Section 165, as originally enacted, prohibited transfer of the right of a
Bhumiswami belonging to a tribe which had been declared to be an aboriginal tribe by the State
Government by notification in that behalf to a person not belonging to such tribe without the
permission of a revenue officer not below the rank of a Collector given for reasons to be recorded in
writing. As a consequence thereof, Section 170 was enacted for avoidance of transfers in
contravention of Section 165, As originally enacted, Section 170 provided for recovery of possession
of the holding by any person who if he survived the Bhumiswami without nearer heirs would inherit
the holding by an application to the Sub-Divisional Officer within two years of such transfer made in
contravention of Sub-section (6) of Section 165. These provisions in the Code prohibited transfer by
such a Bhumiswami of his rights in the land to a non-tribal without the written permission of the
Collector and also provided for avoidance of a transfer in contravention of this provision in the
manner indicated. It is also significant that Sub-section (6) of Section 165, as originally enacted,
dealt with the right of a Bhumiswami in the land which meant any right in the immovable property.

3. By M.P. Act No. 37 of 1973 the original Sub-section (7) of Section 165 was amended. The original
Sub-section (7) laid down that only that part of a holding of Bhumiswami shall be liable to
attachment or sale in execution of any decree or order which was in excess of five acres of irrigated
or ten acres of unirrigated land. By this amendment made in 1973, it was also provided that no land
comprised in a holding of a Bhumiswami belonging to such an aboriginal tribe shall be liable to be

Indian Kanoon - http://indiankanoon.org/doc/673343/ 1

 Dhirendra Nath Sharma vs State Of Madhya Pradesh And Anr. on 28 November, 1985

attached or sold in execution of a decree or order.

4. The next significant amendments made in the Code were by M.P. Act. No. 61 of 1976 with effect
from 29-11-1976. By this amendment, Sub-section (6) of Section 165 Section 169 and Section 170
were amended and Section 170-A and Section 257A were inserted in the Code. Briefly stated, the
amended Sub-section (6) of Section 165 laid down that in areas predominantly inhabitated by
aboriginal tribes, transfer of land by sale or otherwise by a tribal could not be made to a non-tribal
and in the remaining are as the land by a tribal could not be transferred by way of sale or otherwise
without the permission in writing of a revenue officer not below the rank of Collector given for
reasons to be recorded in writing. An Explanation was added to this sub-section to say that the
expression "otherwise" shall not include lease to indicate that leases were not covered by the
amended section. Section 169 was also amended to provide that the provisions in the Code laying
down the consequences of unauthorised lease resulting in conferral of rights of an occupancy tenant
and then a Bhumiswami on the lessee were not to apply to a land comprised in the holding of a
Bhumiswami belonging to a tribe which had been declared, to be an aboriginal tribe under
Sub-section (6). of Section 165, Section 170 relating to avoidance ,:of transfer in contravention of
Section 165(6) was also amended to enable recovery of possession in such a case within the
prescribed period so as to cover all such transfers made from the time of enforcement of the Code.
Section 170-A and Section 257-A inserted in the Code are as under :

"170-A. Certain transfer to be set aside. (1) Notwithstanding anything contained in the Limitation
Act, 1963 (No. 36 of 1963), the Sub-Divisional Officer may, on his own motion or on an application
made by a transferor of agricultural land belonging to a tribe which has been declared to be an
aboriginal tribe under Sub-section (6) of Section 165 on or before the 31st Dec. 1978, enquire into a
transfer effected by way of sale, or in pursuance of a decree of a Court of such land to a person not
belonging to such tribe or transfer effected by way of accrual of right of occupancy tenant under
Section 169 or of Bhumiswami under Sub-section (2-A) of Section 190 at any time during the period
commencing on the 2nd Oct.. 1959 amending on the date of commencement of the Madhya Pradesh
Land Revenue Code (Third Amendment) Act, 1976 or satisfy himself as to the bona fide nature of
such transfer.

(2) If the Sub-Divisional Officer on an enquiry and after giving a reasonable opportunity to the
persons owning any interest in such land, is satisfied that such transfer was not bona fide, he may
notwithstanding anything contained in this Code or any other enactment for the time being in force,
--

(a) subject to the provisions of Clause (b), set aside such transfer if made by a holder belonging to a
tribe which has been declared to be an aboriginal tribe under Sub-section (6) of Section 165 and
restore the land to the transferor; or

(b) where such land has been diverted for non-agricultural purposes, he shall fix the price of such
land which it would have fetched at the time of transfer and order the transferee to pay the
difference, if any, between the price so fixed and the price actually paid to the transferor within a
period of six months."

Indian Kanoon - http://indiankanoon.org/doc/673343/ 2

 Dhirendra Nath Sharma vs State Of Madhya Pradesh And Anr. on 28 November, 1985

"257-A. Burden of proof and bar of legal practitioners in certain proceedings. -- (1) In any
proceedings under Sub-section (6) of Section 165 or under the proviso to Section 169 or under
Sub-section (1) of Section 170 or under Section 170-A or under Section 250 in which one of the
parties is a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe
under Sub-section (6) of Section 165; the burden of proving the validity of transfer thereunder shall,
notwithstanding anything contained in this Code or in any other law for the time being in force, lie
on the person who claims such transfer to be valid.

(2) No legal practitioner shall appear, plead or act on behalf of any party in any proceedings
specified in Sub-section (1) in which one of the parties is a Bhumiswami belonging to a tribe which
has been declared to be an aboriginal tribe under Sub-section (6) of Section 165 except with the
written permission of the Revenue Officer/Court before whom the case is pending."

5. The next significant amendment in the Code was made by M.P. Act No. 15 of 1980 with effect
from 24-10-1980 which inserted Section 170-B, which reads as under: --

"170-B. Reversion of land of member of aboriginal tribe which was transferred by fraud. --(1) Every
person who on the date of commencement of the Madhya, Pradesh Land Revenue Code
(Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of
agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal
tribe under Sub-section (6) of Section 165, between the period commencing on the 2nd Oct. 1959
and ending on the date of the commencement of Amendment Act of 1980 shall, within one year of
such commencement, notify to the Sub-Divisional Officer in such form and in such manner as may
be prescribed, all the information as to how he has come in possession of such land:

(2) If any person fails to notify the information as required by Sub-section (1) within the period
specified therein it shall be presumed that such person has been in possession of the agricultural
land without any lawful authority and the agricultural land shall, on the expiration of the period
aforesaid, revert to the person to whom it originally belonged and if that person be dead, to his legal
heirs:

(3) On receipt of the information under Sub-section (1), the Sub-Divisional Officer shall make such
enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the
member of aboriginal tribe has been defrauded of his legitimate right he shall declare the
transaction null and void and pass an order revesting the agricultural land in the transferor and, if
he be dead, in his legal heirs."

It may here be mentioned that the period of one year prescribed in Section 170-B was increased by
Ordinance No. 12 of 1981 to one and a half years and then to two years by M.P. Act No. 19 of 1982
which was brought into force retrospectively with effect from 23-10-1981 i.e. before the expiry of the
period of one year from the date of enforcenient of M.P. Act No. 15 of 1980 which inserted Section
170-B. The result, therefore, is that the limitation of one year provided originally in Section 170-B
has to be read as two years at all relevant times. Another significant provision made by M.P. Act No.
19 of 1982 was contained in Section 3 thereof as under: --

Indian Kanoon - http://indiankanoon.org/doc/673343/ 3

 Dhirendra Nath Sharma vs State Of Madhya Pradesh And Anr. on 28 November, 1985

"3. Removal of difficulties. --(1) It is hereby declared that the consequences ensuing under
Sub-section (2) of Section 170-B of the Principal Act shall, in respect of any person who failed to
notify information as required by Sub-section (1) of the aforesaid section within the period specified
therein, be and shall always be deemed never to have ensued, and the agricultural land never to have
reverted to the person to whom it originally belonged and accordingly the 'position of agricultural
land as on the date immediately preceding the 23rd Oct. 1981 shall stand restored for all purposes.

(2) If any difficulty arises in giving effect to the provisions of this section, the State Government
may, by order, do anything not inconsistent with the provisions of the Principal Act, for the purpose
of removing the difficulty:

Provided that no such order shall be made after the expiration of one year from the date of
commencement of this Act.

(3) An order issued under Sub-section (2) shall be laid on table of the Legislative Assembly.

6. The above legislative history shows the manner in which the impugned provisions contained in
Sections. 170-A and 170-B of the Code came into existence. Before dealing with the impugned
provisions and the arguments on which the challenge to the constitutional validity is based reference
may also be made to the impugned notification dt. 15-4-1981 and the subsequent notifications
issued by the Governor, in exercise of the power conferred in para 5(r) of the Fifth Schedule to the
Constitution.

7. By notification No. P-16-1-8HI-XXV, dt. 15th April 1981, the Governor of Madhya Pradesh, in
exercise of the powers conferred by sub-para (1) of para 5 of the Fifth Schedule to the Constitution
directed that the M.P. Land Revenue Code, 1959 shall apply to Scheduled Areas in the State subject
to the exceptions and modifications specified therein. These exceptions and modifications were
made by inserting Sub-sections (6-a) to (6-f) after Sub-section (6) of Section 165. These provisions
related to . transfers made by non-triabals. and not by tribals with which we are concerned. Another
notification No. F. No. 1-70-VII-N-2-83, dt. 5-1-1984 was issued by the Governor of Madhya
Pradesh in exercise of the same powers by which Sub-section (3) of Section 57, was inserted. Clause
(a) of Sub-section (2) of Section 170-A was amended and Sub-section (3) of Section 170-B was
substituted in addition to inserting Section 170-C and Section 170-D and making some other
modifications. Thereafter another notification No. 37-4-VII-M-II-84, dt. 4-6-1984, was issued
making further amendments as a result of which agricultural lands were excluded from the
applicability of the amendments made by these notifications. The cumulative effect of these
notifications, therefore, is that the amendments made thereby do not apply to transfer of
agricultural lands by a Bhumiswami belonging to a tribe, which has been declared to be an
aboriginal tribe under Sub-section (6) of Section 165 of the Code. Since we are concerned in these
petitions only with transfer of agricultural lands by Bhumiswamis belonging to tribes, which have
been declared to be aboriginal tribes under Sub-section (6) of Section 165 of the Code, the effect of
these notifications is no longer of any consequence for our purpose. For this reason, no further
reference to these notifications is necessary and it is only the constitutional validity of Sections.
170-A and 170-B which requires consideration.

Indian Kanoon - http://indiankanoon.org/doc/673343/ 4

Thank you for using Wondershare PDF Converter Pro 4.1.0.

You can only convert up to 5 pages in the trial version.

To get the full version， please purchase the program here:

http://cbs.wondershare.com/go.php?pid=839&m=db