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CASE NO.:

Appeal (civil) 1263 of 1992

PETITIONER:

Bhaiji

RESPONDENT:

Sub Divisional Officer, Thandla & Ors.

DATE OF JUDGMENT: 16/12/2002

BENCH:

R.C. LAHOTI & BRIJESH KUMAR & ARUN KUMAR

JUDGMENT:

JUDGMENT

2002(5) Suppl.SCR 116 = 2003 (1) SCC 692

R.C. Lahoti, J.

The M.P. Land Revenue Code 1959 (Act No.20 of 1959) was

enacted by the Legislative Assembly of Madhya Pradesh to

consolidate and amend the law relating to land revenue, the powers of

Revenue Officers, rights and liabilities of holders of land from the

State Government, agriculture tenures and other matters relating to

land and the liabilities incidental thereto in Madhya Pradesh. There

were different laws relating to land revenue, land tenure and other

matters touching thereto prevalent in the different regions of the State

and the Legislature considered it desirable that there should be one

uniform law enacted for whole of the State. There are tribal land

holders in many a regions of the State of Madhya Pradesh. The Code

took care to enact some special provisions taking special care of

protecting the interest of such tribals.

In the year 1980, the State Legislature enacted the Madhya

Pradesh Land Revenue Code (Amendment) Act 1980 (Act No.59 of

1980) whereby certain amendments were incorporated and a few new

provisions were inserted into the body of the Code. One such

amendment is the insertion of Section 170-B which read 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

belonging 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 October, 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

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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 be he dead, in his legal heirs."

Subsequently, there have been a few changes incorporated in the text

of Section 170-B abovesaid. For example, the period of one year

specified in sub-Section (1) of Section 170-B later on came to be

enlarged to one and a half years and then to two years as it now

stands. Similarly, sub-Section (3) has been recast by virtue of

notification No.1-70-VII-N-2-83 dated 5th January 1984 issued under

sub-paragraph 1 of paragraph 5 of the Fifth Schedule to the

Constitution of India which amendment we are ignoring for the

purpose of this judgment as the language of the essential part of the

sub-Section (3) remains as before and what has been amended is the

consequential direction required to be made where certain building or

structure have come up on the land forming subject matter of enquiry

under sub-Section (3). However, sub-Section (2-A) was inserted

between sub-Sections (2) and (3) by Act No.1 of 1998 passed by the

State Legislature which reads as under:-

"(2-A) If a Gram Sabha in the Scheduled

area referred to in clause (1) of Article 244 of the

Constitution finds that any person, other than a

member of an aboriginal tribe, is in possession of

any land of a Bhumiswami belonging to an

aboriginal tribe, without any lawful authority, it

shall restore the possession of such land to that

person to whom it originally belonged and if that

person is dead to his legal heirs:

Provided that if the Gram Sabha fails to restore the

possession of such land, it shall refer the matter to

the Sub-Divisional Officer, who shall restore the

possession of such land within three months from

the date of receipt of the reference."

(emphasis supplied)

The land forming subject matter of these proceedings was

owned by Bhikala and Thanwaria who are members of a tribe which

has been declared to be an aboriginal tribe under sub-Section (6) of

Section 165 of the Code as contemplated by Section 170-B(1). The

appellant too claims to be a similar aboriginal tribal. It appears that

the land was sold by the aboriginal tribal bhumiswamis through

registered sale deeds and it came to be purchased by the appellant. All

these transactions have taken place between 2nd October 1959 and the

date of the commencement of the Amendment Act of 1980, meaning

thereby, during the period attracting applicability of Section 170-B(1).

The appellant did not furnish the information in the form and in the

manner prescribed within the period of two years. In the year 1982-

83, the Sub-Divisional Officer, Thandla Petlawad, Distt. Jhabua,

within whose jurisdiction the land is situated, initiated proceedings

under Section 170-B of the Code by calling upon the appellant to

show cause in response to the notice issued by the SDO. Soon on

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service of the notice the appellant filed a writ petition in the High

Court of Madhya Pradesh submitting that the appellant and the vendor

bhumiswamis, both being aboriginal tribals notified under Section

165(6) of the Code, the applicability of Section 170-B was not

attracted and therefore the notice issued by the SDO was illegal,

uncalled for and without any authority in law. The challenge has been

rejected by the High Court.

The singular contention advanced by Shri S.K. Gambhir, the

learned senior counsel for the appellant, is that looking to the scheme

of the Code specially Sections 165, 168, 170-A and 170-B thereof, it

is clear that what Section 170-B proposes to embrace within its fold

are such transactions as are fraudulent and entered into by aboriginal

tribals in favour of non-tribals. The Code does not contemplate any

enquiry into and consequent annulling of transactions or reverting

back of land from the person in possession to the aboriginal tribe

bhumiswami where both the parties are aboriginal tribals notified

under Section 165(6) of the Code. Strong reliance was placed on the

statement of object and reasons and the language employed by the

Legislature in framing sub-Section (2-A) of the Code.

The statement of object and reasons appended to the M.P. Land

Revenue Code (Amendment) Bill 1980, as published in M.P.

Government Gazette dated 26.9.1980, so far as Section 170-B

abovesaid is concerned, is as under:-

"Clause 10 __ All transfers made by members of

aboriginal tribes to non-tribals between 2.10.1959

and the date of commencement of the proposed

measure will be subject to review and the burden

of providing all the necessary information of such

transactions and thereby establishing that such

transactions were not made due to use of

fraudulent methods will be on the purchaser.

Failure to notify the information would meet with

a consequence of reverting the land to the original

aboriginal."

(emphasis supplied)

Shri Gambhir submitted that the statement of objects and

reasons makes it very clear that the Legislature had intended to enact

the provision for enquiry into transfers made by members of

aboriginal tribe to non-tribals. The same inference follows from the

language employed by the State Legislature in drafting sub-Section

(2-A) of the Code.

Challenge to vires of Section 170-B abovesaid along with

Section 170-A was laid before a Division Bench of the High Court of

Madhya Pradesh in Dhirendra Nath Sharma Vs. State of Madhya

Pradesh & Anr., AIR 1986 MP 122. Justice J.S. Verma (Acting CJ,

as His Lordship then was) speaking for the Division Bench, upheld

the constitutional validity of Section 170-A and Section 170-B both.

The history of legislation resulting in enactment of Section 170-B has

been succinctly set out by the Division Bench in paras 2 to 4 of its

judgment and it is not necessary to restate the same hereat and if

needed the reference can be had to the reported decision. Suffice it to

observe that the Division Bench, by tracing the legislative history,

concluded vide para 10 that the impugned provisions form a part of

the principles of distributive justice by avoidance of illegal

transactions of transfers of agricultural lands by members of the

aboriginal tribes who were unequals and the legislation is also in

implementation of the directive principle contained in Article 46 of

the Constitution, which enjoins the State to protect the Scheduled

Castes and Scheduled Tribes from all social injustice and from all

forms of exploitation. It is true that the Division Bench of the High

Court has made a reference to illegal transactions of transfers of

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agricultural land by members of the aboriginal tribes to non-tribals in

these transactions. But that is so because the Division Bench was

dealing with the petition filed by a non-tribal and did not have an

occasion to examine the transfers as amongst tribals inter se.

It is well known that some of the aboriginal tribes are nomadic

and some indulge into crimes traditionally and historically. The

purpose of settling land with the tribals mostly which is done at very

concessional rates and at times even without involving an obligation

to pay the land revenue, is so done with a view to see that the

aboriginals settle at one place abandoning nomadism and picking up

tilling the soil as their vocation by settling at one place and earning

livelihood by labour and toil. It is also well known that creamy layers

have developed and even as amongst socially unprivileged some have

acquired affluence. An affluent shrewd tribal may indulge into

exploiting his fellow beings. Possibility cannot be ruled out where a

non-tribal may manage to have land transferred apparently but not in

reality in the name of a tribal and taking advantage of his status,

affluence or any other means, conferring him with capacity to exploit,

may till the land to his own advantage depriving the aboriginal tribal

from the benefits of the land settled by the State with him. All such

cases are taken care of by Section 170-B.The purpose of enacting

Section 170-B of the Code is very wide. The object sought to be

achieved, as its drafting indicates, is to gather and make available all

statistics with the State officials so as to find out how much land

belonging to aboriginal tribals is in possession of anyone to whom it

does not belong as on the cut off date. The information having been

collected the enquiry under sub-Section (3) shall be directed towards

finding out the nature of transaction resulting into transfer of land ___

whether such transaction of transfer has resulted in the aboriginal

tribal having been defrauded of his legitimate right in the land? Sub-

Sections (1), (2) and (3), as enacted in 1980, have to be read as part of

one whole scheme. If the submission of Shri Gambhir is correct then

the object of enquiry under sub-Section (3) would have been to find

out if such transaction of transfer has resulted in an aboriginal tribal

having been defrauded of his legitimate right by person not belonging

to aboriginal tribe. But that is not so. Nowhere in the entire scheme

of sub-Sections (1), (2) and (3) of Section 170-B, as enacted in 1980,

there is the least indication of confining the applicability of the

provision to such transactions of transfer as were entered into by a

member of aboriginal tribe in favour of a member not belonging to

aboriginal tribe. No exception has been enacted by the Legislature so

as to exclude from the purview of Section 170-B transactions of

transfer between two persons both of whom are members of

aboriginal tribes. Had it been so, the Legislature would have

specifically said so. The language of the Section as drafted in 1980 is

clear and unambiguous and does not admit of any doubt so far as this

aspect is concerned.

Sub-Section (2-A) came to be enacted in 1998. An attempt at

placing construction on the language of a statute enacted in the year

1980 and trying to find out its meaning and extent of operation by

reference to the words employed in drafting a piece of legislation in

the year 1998 may not be countenanced by principles of

interpretation. Sub-Section (2-A) contemplates a limited category of

cases where (i) any person other than a member of an aboriginal tribe

is in possession of any land of a bhumiswami belonging to an

aboriginal tribe, and (ii) without any lawful authority. The power is

conferred on the Gram Sabha. It contemplates a summary and quick

remedy for restoration of possession so as to provide quick relief at

the hands of a local body to an aboriginal tribe on the twin conditions

being satisfied. The very fact that the language employed by the

Legislature in 1998 while drafting sub-Section (2-A) is materially

different from the language employed by it in 1980 while drafting

sub-Sections (1), (2) and (3) of Section 170-B, is rather suggestive of

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the fact that the Legislature was conscious of the wide scope of the

original provision and therefore kept the scope of sub-Section (2-A)

confined to a limited category of transactions as the power was being

conferred on Gram Sabha. The essential ingredient vitiating the

transaction of transfer under Section 170-B as enacted in 1980 is

fraudulent nature of transaction resulting in deprivation of legitimate

right of an aboriginal tribal while all that is required to be seen for the

purpose of sub-Section (2-A) as inserted in 1998 is transfer by an

aboriginal tribal in favour of a non-aboriginal tribal and that transfer

being without any lawful authority, without regard to the nature of

transaction whether it is fraudulent or not. Sub-sections (1), (2) and

(3) of Section 170-B employ the expressions 'every person', 'any

person' and 'all such transactions of transfer' respectively; Sub-

section (2-A) speaks of 'any person, other than a member of

aboriginal tribe'. That is a material distinction.

The Division Bench of Madhya Pradesh High Court in

Dhirendra Nath Sharma's case has held that sub-Section (2) would

not result in the person in possession being divested of his land

without an enquiry under sub-Section (3) though sub-Section (2) by

itself does not speak of any enquiry. In spite of failure to furnish

information within the period prescribed by sub-Section (1), the

consequence which flows is the raising of a presumption, not

conclusive but a rebuttable one, which shall be taken into

consideration while holding an enquiry under sub-Section (3). This

interpretation was placed by the Division Bench in Dhirendra Nath

Sharma's case because it was necessary to do so for saving sub-

Section (2) from being rendered ultra vires the Constitution. One of

the submissions made before the Division Bench was that the person

in possession of the land would be deprived of means of livelihood

necessary for his existence without any enquiry and that would

contravene Article 21 of the Constitution. It was submitted before the

Division Bench by the learned Additional Advocate General

appearing for the State that the practice which was being followed by

the Sub-Divisional Officers of the State was to hold an enquiry under

sub-Section (3) and then pass a final order irrespective of the fact

whether the person in possession has notified the information as

required by sub-Section (1) or not. The Division Bench held that the

fact that an order contemplated by sub-Section (3) has to be passed

even in cases falling within the ambit of sub-Section (2) it is sufficient

to indicate that there is no usurpation of judicial function thereby and

there is no arbitrariness in the procedure nor is there the vice of

absence of enquiry. This was further explained by another Division

Bench of Madhya Pradesh High Court in Atmaram & Ors. Vs. State

of M.P. & Ors., 1995 MPLJ 633.

Reference to the Statement of Objects and Reasons is

permissible for understanding the background, the antecedent state of

affairs, the surrounding circumstances in relation to the statute, and

the evil which the statute sought to remedy. The weight of judicial

authority leans in favour of the view that Statement of Objects and

Reasons cannot be utilized for the purpose of restricting and

controlling the plain meaning of the language employed by the

Legislature in drafting statute and excluding from its operation such

transactions which it plainly covers. (See Principles of Statutory

Interpretation by Justice G.P. Singh, Eighth Edition 2001, pp.206-

209).

The learned senior counsel for the appellant placed strong

reliance on M/s Girdhari Lal and Sons Vs. Balbir Nath Mathur and

Ors. (1986) 2 SCC 237 wherein it has been held that the courts can

by ascertaining legislative intent place such construction on statute as

would advance its purpose and object. Where the words of statute are

plain and unambiguous, effect must be given to them. The

Legislature may be safely presumed to have intended what the words

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plainly say. The plain words can be departed from when reading them

as they are leads to patent injustice, anomaly or absurdity or

invalidation of a law. The Court permitted the Statement of Objects

and Reasons, Parliamentary Debates, Reports of Committees and

Commissions preceding the Legislation and the legislative history

being referred to for the purpose of gathering the legislative intent in

such cases. The law so stated does not advance the contention of Shri

Gambhir. The wide scope of transactions covered by the plain

language of Section 170-B as enacted in 1980 cannot be scuttled or

narrowed down by reading the Statement of Objects and Reasons.

It is true that in para 10 of Dhirendra Nath's case (supra) the

Division Bench makes a casual reference to 'avoidance of illegal

transactions of transfers of agricultural land by members of aboriginal

tribes who were unequals with the non-tribes in these transactions',

but that observation about the legislative history of the provision is

clearly based on the Statement of Objects and Reasons. The Division

Bench was not dealing with the question whether the case of a tribal

in possession of agricultural land of another tribal would attract

applicability of Section 170-B(1) or not; nor was it dealing

specifically with the question whether a transaction of transfer, the

transferor wherein is a member of aboriginal tribe though made in

favour of a similar member would be covered by sub-section (3) or

not even if the transaction has resulted in a member of a aboriginal

tribe being defrauded of his legitimate right. The expression

employed by the Division Bench while dealing with legislative history

of the enactment cannot be pressed in service for supporting the

submission seeking to restrict and narrow down the application of the

provision.

It is not necessary to refer to Sections 165, 168 and 170-A as it

is unnecessary, in our opinion.

The petition filed by the writ petitioner before the High Court

was entirely misconceived and, in a way, premature. The show cause

notice issued by the Sub-Divisional Officer cannot be said to be

without jurisdiction. The appellant should have participated in the

enquiry after showing cause. Instead he chose to rush post haste to

the High Court. The High Court rightly turned down the writ petition.

The appeal is held devoid of any merit and is liable to be

dismissed. It is dismissed accordingly though without any order as to

the costs.