1

CGHC010224992023 2026:CGHC:30854

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPC No. 3230 of 2023

Order Reserved on 06.07.2026

Order Delivered on 21.07.2026

1 - Amar Sai S/o Gattu Aged About 63 Years R/o Village Kardoni,

Tahsil Lundra, District : Surguja (Ambikapur), Chhattisgarh

... Petitioner(s)

versus

1 - State Of Chhattisgarh Through Secretary, Revenue

Department, Mahanadi Bhawan, Mantralaya, Capital Complex, Atal

Nagar, Nawa Raipur, District : Raipur, Chhattisgarh

2 - Commissioner Ambikapur, District : Surguja (Ambikapur),

Chhattisgarh

3 - Sub Divisional Officer Ambikapur, District : Surguja

(Ambikapur), Chhattisgarh

4 - Nayab Tehsildar Lundra, Tahsil Lundra, District : Surguja

(Ambikapur), Chhattisgarh

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5 - Radhelal S/o Nanki S/o Sahdev Aged About 64 Years R/o

Village Rata, Tahsil Lundra, District : Surguja (Ambikapur),

Chhattisgarh

... Respondents

(Cause-title taken from the Case Information System)

-----------------------------------------------------------------------------------------

For Petitioner:- Mr. Anurag Singh, Advocate

For State :-Mr. Amit Nayak, P.L.

Fro Respondent No.5 :-Mr. Ajeet Kumar Yadav, Advocate

-----------------------------------------------------------------------------------------

SB- Hon'ble Shri Justice Amitendra Kishore Prasad

CAV Order

1.The petitioner, by way of the instant writ petition, has

challenged the legality, validity and propriety of the order

dated 17.05.2023 passed by the Board of Revenue, Bilaspur,

whereby the revision preferred by respondent No. 5 has been

allowed, the order passed by the Commissioner, Surguja

Division has been set aside, and the orders passed by the

S.D.O. and Tahsildar have been affirmed.

2.The case of the petitioner is that the land situated at Village

Rata, Tahsil Lundra, comprising of 11 plots admeasuring

1.379 hectares, was settled in the name of Sahdev in the

Surguja State Settlement, who belonged to an aboriginal

tribe. It is submitted that Sahdev had one daughter namely,

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Nanki, and one son namely, Nanhu. After the death of

Sahdev, the name of Nanhu was recorded in the revenue

records, and thereafter the land in question was transferred

by Nanhu in favour of his sister Nanki vide registered sale

deed dated 27.12.1996. It is further the case of the petitioner

that Nanki, who belonged to an aboriginal tribe, married one

Mansai, who was a non-tribal, and out of the said wedlock

respondent No. 5 namely, Radhelal was born. Since

respondent No. 5 acquired the status of his father, he was

treated as a non-tribal. It is alleged that Nanki executed a Will

dated 09.07.2001 in favour of respondent No. 5 in respect of

the land in question. On the basis of the said Will, respondent

No. 5 moved an application for mutation before the Naib-

Tahsildar, Lundra. The said application was objected to by

Kaushalya Bai, wife of Nanhu, on the ground that respondent

No. 5 being a non-tribal had no right to succeed or acquire

the disputed land, as the transfer in his favour through the

Will was contrary to the provisions of Sections 165 and 170-B

of the Chhattisgarh Land Revenue Code. The Naib-Tahsildar,

Lundra, vide order dated 07.12.2002, allowed the application

preferred by respondent No. 5 and directed recording of his

name in the revenue records. While passing the said order, it

was held that there was no violation of any provision of the

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Chhattisgarh Land Revenue Code and that the Will executed

in favour of respondent No. 5 was validly executed and duly

proved. The aforesaid order passed by the Naib-Tahsildar

was challenged by Kaushalya Bai before the S.D.O. in

appeal, wherein a specific ground was raised that the

transaction in favour of respondent No. 5 was in violation of

Sections 165 and 170-B of the Chhattisgarh Land Revenue

Code. However, the S.D.O., vide order dated 05.06.2006,

dismissed the appeal preferred by Kaushalya Bai. Being

aggrieved by the order dated 05.06.2006, Kaushalya Bai

preferred a further appeal before the Commissioner, Surguja

Division. During the pendency of the said appeal, Kaushalya

Bai expired and the present petitioner was substituted as her

legal heir on the basis of the Will dated 02.11.2015 executed

by Kaushalya Bai. The Commissioner, vide order dated

18.09.2008, allowed the appeal and set aside the orders

passed by the S.D.O. and Naib-Tahsildar. It was held that the

transaction in favour of respondent No. 5 was in

contravention of Section 170-B of the Chhattisgarh Land

Revenue Code and, therefore, respondent No. 5 had no right,

title or interest over the disputed property. The order passed

by the Commissioner was thereafter challenged by

respondent No. 5 by filing a revision before the Board of

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Revenue, Bilaspur. The Board of Revenue, vide the

impugned order dated 17.05.2023, allowed the revision

preferred by respondent No. 5 and set aside the order passed

by the Commissioner, while affirming the orders passed by

the S.D.O. and Naib-Tahsildar. While allowing the revision,

the Board of Revenue held that since the Will was executed

in favour of respondent No. 5, he had acquired right over the

disputed property and was entitled to have his name recorded

in the revenue records. Being aggrieved by the said order, the

petitioner has preferred the present writ petition.

3.Following reliefs have been prayed in this petition:-

“10.1] That, this Hon'ble Court may kindly be

pleased to issue a writ/writs, order/orders,

direction/directions quashing the impugned order

dated 17.05.2022 (Annex.P/1) passed by Board

of Revenue and the order passed by

Commissioner, Surguja dated 4 48.09.2008

(Annex.P/6) may kindly be upheld in the interest

of justice.

10.2] That, this Hon'ble Court may kindly be

pleased to grant any other relief(s), which is

deemed fit and proper in the aforesaid facts and

circumstances of the case.”

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4.Mr. Anurag Singh, learned counsel appearing for the

petitioner submits that the impugned order passed by the

Board of Revenue is wholly illegal, arbitrary and contrary to

the provisions of the Chhattisgarh Land Revenue Code, 1959.

It is contended that the learned Board of Revenue has

committed an error of law in allowing the revision preferred by

respondent No. 5 and in restoring the orders passed by the

S.D.O. and Naib-Tahsildar, without properly appreciating the

statutory bar contained under Sections 165 and 170-B of the

Chhattisgarh Land Revenue Code. Learned counsel for the

petitioner submits that respondent No. 5 is admittedly a non-

tribal person and, therefore, he could not have acquired any

right, title or interest over the land belonging to an aboriginal

tribe. It is submitted that the land in question originally

belonged to Sahdev, who was an aboriginal tribe, and merely

on the basis of a Will executed by Nanki, who herself

belonged to an aboriginal tribe, respondent No. 5, being the

son born out of wedlock with a non-tribal person, cannot claim

any right over the said property. It is further submitted that the

learned Board of Revenue failed to appreciate the mandatory

provisions of Section 165 of the Chhattisgarh Land Revenue

Code, which prohibits transfer of land belonging to an

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aboriginal tribe in favour of a non-tribal without prior

permission of the Collector.

5.According to learned counsel, the execution of a Will in favour

of respondent No. 5 would also amount to transfer within the

meaning of the said provision, as the effect of such

transaction is to divest the aboriginal holder of the land and

vest the same in favour of a non-tribal person. Learned

counsel further submits that the question as to whether

respondent No. 5 acquired any right, title or interest on the

basis of the Will is a matter which could only be adjudicated

by the competent Civil Court and the revenue authorities

could not have conclusively determined the validity and effect

of the Will while exercising summary jurisdiction in mutation

proceedings. It is argued that the Board of Revenue has

exceeded its jurisdiction by recognizing the right of

respondent No. 5 solely on the basis of the Will. It is further

submitted that the learned Board of Revenue has failed to

consider the fact that the mother of respondent No. 5, namely

Nanki, had married Mansai, who was admittedly a non-tribal,

and therefore respondent No. 5 acquired the status of his

father and cannot claim the benefit of being an aboriginal

tribe. Consequently, any transaction whereby land belonging

to an aboriginal tribe is sought to be transferred in favour of

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respondent No. 5 would clearly attract the bar contained

under Section 170-B of the Chhattisgarh Land Revenue

Code.

6.Learned counsel for the petitioner submits that the very object

and purpose behind incorporation of Sections 165 and 170-B

of the Chhattisgarh Land Revenue Code is to protect the

interest of aboriginal tribes, who are socially and economically

weaker sections of society, and to ensure that they are not

deprived of their agricultural land through indirect or

fraudulent modes of transfer. It is submitted that the protective

provisions of the statute are required to be interpreted

liberally so as to advance the object of the legislation. It is

further argued that though the term "transfer" has not been

specifically defined under the Chhattisgarh Land Revenue

Code, the same cannot be given a narrow or restricted

interpretation. The expression "transfer" has to be construed

in a wider sense so as to include every mode or transaction

which has the effect of depriving an aboriginal tribe of his/her

land and conferring rights upon a non-tribal person. Learned

counsel submits that merely because a registered Will has

been executed in favour of respondent No. 5, the same would

not confer any legal right upon him in respect of the property

belonging to an aboriginal tribe, particularly when no prior

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permission of the Collector, as mandated under Section 165

of the Chhattisgarh Land Revenue Code, was obtained. It is

contended that the Board of Revenue has failed to appreciate

this legal position and has erroneously upheld the claim of

respondent No. 5.

7.Learned counsel for the petitioner has also placed reliance

upon the judgments of this Court as well as the Hon’ble

Supreme Court to contend that the land belonging to an

aboriginal tribe cannot be transferred in favour of a non-tribal

person without compliance of the mandatory provisions

contained under Section 165 of the Chhattisgarh Land

Revenue Code, 1959.

8.In the case of Joseph Vs. Dhaneshwar Sao, Second

Appeal No.197 of 1993, decided on 03.12.2018, this Court

has held that the provisions contained under Section 165 of

the Chhattisgarh Land Revenue Code are mandatory in

nature and any transfer of land belonging to an aboriginal

tribe without obtaining prior permission of the Collector is void

and cannot confer any right, title or interest upon the

transferee. Similarly, in Laxmi Bai Vs. State of

Chhattisgarh, W.P.(C) No.3097 of 2005, this Court, while

considering the object behind Section 165 of the Chhattisgarh

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Land Revenue Code, has held that the restriction imposed on

transfer of tribal land is intended to protect the interest of

aboriginal tribes and any transaction made in violation of such

statutory restriction cannot be sustained in the eyes of law.

9.Learned counsel for the petitioner has further relied upon the

judgment of the Hon’ble Supreme Court in Anjan Kumar Vs.

Union of India, (2006) 3 SCC 257, wherein the Hon’ble

Supreme Court has recognized the necessity of protecting the

rights and interests of members of Scheduled Tribes and has

held that protective provisions enacted for the benefit of tribal

communities must be interpreted in a manner which

advances the object of such legislation. Reliance has also

been placed upon the judgment of the Hon’ble Supreme

Court in Ram Charan Vs. Sukhram, 2025 SCC OnLine SC

1465, wherein the Hon’ble Supreme Court reiterated that

statutory restrictions imposed for protecting the rights of

weaker sections cannot be defeated by adopting a technical

or narrow interpretation of the provisions. Further, reliance

has been placed upon the judgment in Ankush Tiwari Vs.

State of Madhya Pradesh and Others, 2025 SCC OnLine

MP 1200, wherein the importance of statutory safeguards

relating to tribal land and the necessity of strict compliance

with such provisions has been emphasized.

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10. Mr. Ajeet Kumar Yadav, learned counsel appearing for

respondent No. 5 opposes the submissions made on behalf

of the petitioner and supports the order passed by the Board

of Revenue. It is submitted that the impugned order has been

passed after proper appreciation of the facts and law

applicable to the case. Learned counsel submits that the land

in question was transferred in favour of respondent No. 5 by

way of a duly executed and registered Will dated 09.07.2001

by Nanki, who was the recorded holder of the property. The

said Will has not been challenged by the petitioner or any

competent person before the Civil Court and, therefore, the

same has attained finality. It is contended that the revenue

authorities have rightly recorded the name of respondent No.

5 on the basis of the said Will. It is further submitted that

mutation proceedings are only for fiscal purposes and the

revenue authorities are not required to decide the question of

title in such proceedings. Since respondent No. 5 has

acquired the property through testamentary succession, the

provisions relating to transfer under Sections 165 and 170-B

of the Chhattisgarh Land Revenue Code are not attracted.

Learned counsel further submits that respondent No. 5 being

the legal heir of Nanki is entitled to inherit the property and

the mere fact that his father was a non-tribal would not

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deprive him of the rights conferred upon him through the Will

executed by his mother. It is argued that the petitioner has

failed to establish any illegality or jurisdictional error in the

order passed by the Board of Revenue. On these grounds,

learned counsel for respondent No. 5 prays for dismissal of

the writ petition and submits that the impugned order passed

by the Board of Revenue deserves to be upheld.

11. Mr. Amit Nayak, learned State counsel appearing for the

State submits that the matter has been decided by the Board

of Revenue after considering the relevant facts and material

available on record. It is submitted that the State has no

independent grievance in the matter and the dispute

essentially pertains to the rival claims of the petitioner and

respondent No. 5 over the land in question. Learned State

counsel submits that the Court may consider the legality and

validity of the impugned order passed by the Board of

Revenue in accordance with the provisions of the

Chhattisgarh Land Revenue Code and the settled legal

position.

12. I have heard learned counsel for the parties and

perused the material available on record.

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13. The short question which arises for consideration in the

present writ petition is as to whether the land belonging to an

aboriginal tribe can be transferred by way of a Will in favour of

a non-tribal person without obtaining prior permission of the

Collector as contemplated under Section 165 of the

Chhattisgarh Land Revenue Code, 1959.

14. Before proceeding further, it would be appropriate to

notice the object and scheme behind incorporation of the

protective provisions contained under the Chhattisgarh Land

Revenue Code. Section 165 of the Chhattisgarh Land

Revenue Code places restrictions on transfer of land

belonging to aboriginal tribes to non-tribal persons. The

legislative intent behind such restriction is to safeguard the

agricultural holdings of aboriginal tribes, who historically have

been vulnerable to exploitation and deprivation of their land

holdings by various modes of transfer.

15. Section 165(6) of the Code as originally stood prior to

amendment states as under:-

“165(6): Notwithstanding anything 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

whole or part of the area to which this Code

applies, shall not be transferred to a person not

belonging to such tribe without the permission of

Revenue Officer not below the rank of Collector,

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given for reasons to be recorded in writing.”

16. Sub-section (6) of Section 165 of the Code was

substituted by M.P. 61 of 1976 w.e.f. 29.11.1976 which states

as under:-

“165(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

transfered 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.

Explanation.-For the purposes of this sub-section

the expression “otherwise” shall not include lease.”

17. The Hon’ble Supreme Court, while considering similar

protective provisions contained in various State Land

Revenue Laws, has consistently held that such provisions are

enacted with the object of protecting the interest of tribal

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communities and preventing alienation of their lands in favour

of non-tribals. The restrictions imposed by the statute are not

merely procedural in nature but are mandatory and have to

be strictly complied with.

18. The Supreme Court in the matter of Keshabo and

another v. State of M.P. and others 1996 7 SCC 765

while

considering the nature and object of the MP Land Revenue

Code qua the provisions contained in Section 165(6) as it

stood prior to 1976 amendment, held that MP Land Revenue

Code is a welfare legislation made to protect the ownership

rights in the land of the Scheduled Tribe. It was observed as

under:-

“It is welfare legislation made to protect the

ownership rights in the land of a Scheduled Tribe to

effectuate the constitutional obligation of Articles

39(b) and 46 of the Constitution read with the

Preamble. Economic empowerment of a tribal to

provide economic democracy is the goal.

Prevention of their exploitation due to ignorance or

indigency is a constitutional duty under Article 46.

Agricultural land gives status to the tiller. Therefore,

any alienation of land in contravention of the above

objectives is void.”

19. In the matter of Murlidhar Dayandeo Keshkar v.

Vishwanath Pandu Barde and another 1995 Supp (2) SCC

549, the Supreme Court while dealing with refusal to alienate

permission to the Scheduled Tribe to non-tribal under the

Bombay Revenue Code held that right to development is an

16

inalienable right by virtue of which every human person is

entitled to participate in contribution to and to enjoy economic,

social, cultural and political development, in which all human

rights and fundamental freedom can be fully realised. It was

held as under:-

“The prohibition from alienation is to effectuate the

constitutional policy of economic empowerment

under Articles 14, 21, 38, 39 and 46 read with

preamble of the Constitution. Accordingly it was

held that refusal to permit alienation is to effectuate

the constitutional policy.”

20. Similarly, in the matter of R. Chandevarappa and

others v. State of Karnataka and others (1995) 6 SCC 309

while considering Section 43(5) of the Karnataka Revenue

Code, the Supreme Court held that once relevant rules

prohibit alienation of property granted to depressed class for

all times to come, it cannot be got over by grant made

contrary to statutory rules and prohibiting clause is absolute in

its term and held as under:-

“6. Having given our anxious considerations to the

respective contentions, the first question that arises

for determination is what would be the nature of the

right given to the assignee Dasana Rangaiah Bin

Dasaiah. Article 39(b) of the Constitution of India

envisages that the State shall in particular direct its

policy towards securing that the ownership and

control of the material resources of the community

are so distributed as best to subserve the common

good. Admittedly, Scheduled Castes and Scheduled

Tribes are the weaker sections of the society who

have been deprived of their economic status by

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obnoxious practice of untouchability and the tribes

living in the forest area far away from the civilised

social life. To augment their economic status and to

bring them on par into the main stream of the

society, the State with a view to render economic

justice envisaged in the Preamble and Articles 38

and 46 of the Constitution distributed the material

resources, namely, the land for self-cultivation. It is

an economic empowerment of the poor. It is

common knowledge that many a member of the

deprived classes live upon the agriculture either by

cultivation on lease hold basis or as agricultural

labour. Under these circumstances, the State

having implemented the policy of economic

empowerment to do economic justice assigned

lands to them to see that they remain in possession

and enjoy the property from generation to

generation.”

21. In the matter of Chebrolu Leela Prasad Rao v. State of

A.P. AIRONLINE 2020 SC 488, the Hon’ble Supreme Court

has reiterated that protective legislations relating to tribal

rights are enacted with the constitutional objective of

safeguarding the interests of Scheduled Tribes and other

vulnerable sections and must be interpreted in a manner

which advances such object.

22. Similarly, in Samatha v. State of Andhra Pradesh 1997

(8) SCC 191, the Hon’ble Supreme Court has emphasized

that the underlying object of restrictions on transfer of tribal

land is to prevent exploitation of tribal people and to ensure

that their lands are not alienated in favour of non-tribal

persons. The Court held that the protective provisions relating

18

to tribal land have to be interpreted keeping in view the

constitutional mandate contained under Articles 46 and 244 of

the Constitution of India.

23. The Supreme Court in the matter of Lincai Gamango v.

Dayanishi Jena (2004) 7 SCC 437 relying upon the matter of

Amrendra Pratap Singh v. Tej Bahadur Prajapati (2004) 10

SCC 65 has held that no right can be acquired by adverse

possession on such inalienable property, adverse possession

operates on an alienable right. It was also held that non-tribal

would not acquire a right or title on the basis of adverse

possession. It was held as under:-

“7. We find both these reasons given by the High

Court are not sustainable. Coming first to the

second point, we find that there is a decision of this

Court directly on the point. It is reported in

Amrendra Pratap Singh v. Tej Bahadur Prajapati.

The matter related to transfer of land falling in tribal

area belonging to the Schedule Tribes. The matter

was governed by Regulations 2, 3 and 7-D of the

Orissa Scheduled Area Transfer of Immovable

Property (By Scheduled Tribes) Regulations, 1956

viz. the same Regulations which govern this case

also. The question involved was also regarding

acquisition of right by adverse possession.

Considering the matter in detail, in the light of the

provisions of the aforesaid Regulations, this Court

found that one of the questions which falls for

consideration was 'whether right by adverse

possession can be acquired by a non-aboriginal on

the property belonging to a member of aboriginal

tribe? In context with the above question posed,

this Court observed in para 23 of the judgment as

follows : (SCC p. 80)

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"23.....The right in the property ought to be one

which is alienable and is capable of being

acquired by the competitor. Adverse

possession operates on an alienable right. The

right stands alienated by operation of law, for it

was capable of being alienated voluntarily and

is sought to be recognised by doctrine of

adverse possession as having been alienated

involuntarily, by default and inaction on the part

of the rightful claimant......."

24. In the matter of Ram Karan (Dead) Through Legal

Representative and others v. State of Rajasthan and

others (2014) 8 SCC 482 the Supreme Court while

considering the transfer prohibited by proviso to Section 42 of

the Rajasthan Tenancy Act, 1955 held that transfer of

landholding by member of Schedule Caste in favour of person

not belonging to Schedule Caste being forbidden and

unenforceable, such transfer would unlawful under Section 23

of the Contract Act as it is statutorily barred.

25. The Supreme Court in the matter of Rajasthan

Housing Board v. New Pink City Nirman Sahkari Samiti

Ltd. (2015) 7 SCC 601 relying upon the matter of Lincai

Gamango (supra) and Amrendra Pratap Singh (supra) has

held that transfer between Schedule Caste and non-

Scheduled Caste is void under Section 42 of the Rajasthan

Tenancy Act, 1955 being prohibited by law and held as

under:-

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“26. In the instant case, the transaction is ab initio

void, that is, right from its inception and is not

voidable at the volition by virtue of the specific

language used in Section 42 of the Rajasthan

Tenancy Act. There is declaration that such

transaction of sale of holding “shall be void”. As the

provision is declaratory, no further declaration is

required to declare prohibited transaction a nullity.

No right accrues to a person on the basis of such a

transaction. The person who enters into an

agreement to purchase the same, is aware of the

consequences of the provision carved out in order

to protect weaker sections of Scheduled Castes

and Scheduled Tribes. The right to claim

compensation accrues from right, title or interest in

the land. When such right, title or interest in land is

inalienable to non-SC/ST, obviously the agreements

entered into by the Society with the Khatedars are

clearly void and decrees obtained on the basis of

the agreement are violative of the mandate of

Section 42 of the Rajasthan Tenancy Act and are a

nullity. Such a prohibited transaction opposed to

public policy, cannot be enforced. Any other

interpretation would be defeasive of the very intent

and protection carved out under Section 42 as per

the mandate of Article 46 of the Constitution, in

favour of the poor castes and downtrodden

persons, included in the Schedules to Articles 341

and 342 of the Constitution of India.”

26. In the present case, admittedly, the land originally

belonged to Sahdev, who was an aboriginal tribe. It is also not

in dispute that Nanki, who inherited the said property,

belonged to an aboriginal tribe. The case of respondent No. 5

is founded solely on the basis of the Will dated 09.07.2001

executed by Nanki in his favour.

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27. The Board of Revenue, while allowing the revision

preferred by respondent No. 5, has proceeded on the premise

that since the Will was executed in his favour by the recorded

holder of the land, respondent No. 5 acquired right over the

property and the provisions contained under Sections 165

and 170-B of the Chhattisgarh Land Revenue Code would not

come into play. The said approach adopted by the Board of

Revenue, in the considered opinion of this Court, is not

sustainable in law. Merely because the mode of transfer is by

way of testamentary disposition, the statutory prohibition

imposed under Section 165 of the Chhattisgarh Land

Revenue Code cannot be defeated. The substance and effect

of the transaction has to be considered rather than the form in

which it is executed.

28. Section 165 of the Chhattisgarh Land Revenue Code

has been enacted with a specific object to prevent alienation

of tribal land in favour of non-tribal persons. If the

interpretation adopted by the Board of Revenue is accepted,

the very purpose of the protective provision would be

frustrated, as an aboriginal holder could easily transfer his/her

land to a non-tribal person by executing a Will, thereby

defeating the mandatory requirement of obtaining prior

permission of the Collector.

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29. It is a settled principle of law that a statute enacted for

protection of a weaker section of society must be interpreted

purposively so as to advance the object of the legislation. The

expression "transfer" cannot be given a restricted meaning so

as to exclude testamentary disposition when the

consequence of such disposition is the same, i.e., divesting

the tribal holder of his/her land and vesting the same in favour

of a non-tribal person.

30. In the present case, admittedly, no prior permission of

the Collector as required under Section 165 of the

Chhattisgarh Land Revenue Code was obtained before

creation of any right in favour of respondent No. 5. The fact

that the transaction was effected through a Will cannot

override the mandatory requirement of the statute. Further,

respondent No. 5 admittedly claims through Nanki, whose

husband was a non-tribal person. The claim of respondent

No. 5 is not that he is an aboriginal tribe himself, but that he

acquired the property through the Will executed by his

mother. However, such mode of succession cannot confer a

better right than what the transferor herself was legally

entitled to transfer. A person cannot acquire a right which is

prohibited by law. The contention of learned counsel for

respondent No. 5 that the Will has not been challenged

23

before the Civil Court and has attained finality is also of no

assistance. The issue involved in the present proceedings is

not regarding the genuineness or validity of the Will, but

regarding the legal consequence of such Will in view of the

statutory restrictions contained under Section 165 of the

Chhattisgarh Land Revenue Code.

31. The Hon’ble Supreme Court in Karnataka Board of

Wakf v. Government of India (2004) 10 SCC 779 has held

that no person can claim a right contrary to the statutory

provisions and any transaction prohibited by law cannot be

validated merely on the ground of long standing possession

or recognition by authorities.

32. In the matter of Pandey Orson v. Ram Chander Sahu

and others AIR 1992 SC 195 the Supreme Court considered

term 'transfer' occurring in Section 71A of the Chhotanagpur

Tenancy Act, 1908, as that was not defined in the Act. That

provision was the beneficial piece of legislation intended to

protect the weaker sections of citizens who could not protect

their land otherwise. Their Lordships chose to adopt liberal

construction so as to give full effect to the legislative purpose

and held as under:-

“In S. 71A in the absence of a definition of

transfer and considering the situation in

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which exercise of jurisdiction is

contemplated, it would not be proper to

confine the meaning of transfer to transfer

under the Transfer of Property Act or a

situation where transfer has a statutory

definition. What exactly is contemplated by

transfer in S. 71A is where possession has

passed from one to another and as a

physical fact the member of the Scheduled

Tribe who is entitled to hold possession has

lost it and a non-member has come into

possession would be covered by transfer

and a situation of that type would be

amenable to exercise of jurisdiction within

the ambit of S. 71A. ”

33. Thus, this Court is of the considered view that the land

belonging to an aboriginal tribe cannot be alienated in favour

of a non-tribal person by way of a Will without obtaining prior

permission of the Collector as mandated under Section 165 of

the Chhattisgarh Land Revenue Code. The Board of Revenue

has committed an error of law in holding otherwise and in

granting recognition to the claim of respondent No. 5 solely

on the basis of the Will.

34. Consequently, the impugned order dated 17.05.2023

passed by the Board of Revenue, Bilaspur is unsustainable

and is liable to be set aside. The order dated 18.09.2008

25

passed by the Commissioner, Surguja Division, whereby the

transaction was held to be contrary to the provisions of the

Chhattisgarh Land Revenue Code, deserves to be restored.

35. Resultantly, the writ petition is allowed. The order dated

17.05.2023 passed by the Board of Revenue, Bilaspur is

hereby quashed and set aside. The order dated 18.09.2008

passed by the Commissioner, Surguja Division is restored.

The revenue authorities are directed to take consequential

steps in accordance with law. In view of the aforesaid,

respondent No. 5 shall not be entitled to claim any right, title

or interest over the disputed land on the basis of the Will

dated 09.07.2001 and the possession of the land shall be

dealt with in accordance with the provisions of the

Chhattisgarh Land Revenue Code.

36. No order as to costs.

Sd/-

(Amitendra Kishore Prasad)

Judge

Vishakha