1 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. For Respondent No.2 : Shri Kishore Narayan, Advocate alongwith Shri Preetam Singh, Advocate. 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. Digitally signed by SMT NIRMALA RAO -2- 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. 3 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 -4- 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 others3, 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 1 (2012) 12 SCC 19 2 1994 Revenue Nirnay 92 3 1997 Revenue Nirnay 155 4 1973 JLJ 117 5 2013 Revenue Nirnay 122 5 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 -6- 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 7 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. -8- 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 9 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 -10- 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 11 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