ORDER
D.M. Dharmadhikari, J.
1. This petition under Article 227 of the Constitution of India is directed against a common order of the Board of Revenue passed in three separate cases between the petitioner and respondents 5, 6, & 7 in proceedings under Section 170B of the Madhya Pradesh Land Revenue Code, 1959 (for short referred to as the 'Act'). It is not disputed that the three parcels of land which were separately in possession of respondents 5, 6 and 7 are recorded as Bhumi Swami Lands in Revenue Records under the Code in the name of petitioner who is a member of Aboriginal Tribe. The three parcels of land were obtained between 1965-1970 by respondents 5, 6 and 7 under a lease on payment of fixed rent per month and for a limited duration. The petitioner approached the Sub Divisional Officer, Durg by three separate applications against respondents 5, 6 and 7 complaining that the respondents 5, 6 and 7 have erected Pakka Structures on the land for running their shops and have neither paid any rent nor are willing to vacate the land. The S.D.O. by separate orders made on 9-4-1984 held that the three respondents mentioned above are in unauthorised possession of the agricultural land belonging to the petitioner as member of Aboriginal tribe and as the lands have been grabbed by the respondents they are liable to be returned to the petitioner in accordance with the provisions of Section 170B(2) of the Code.
2. Against the orders of the S.D.O., Durg, respondents 5 to 7 preferred appeals to the Collector, Durg. The Collector Durg upheld the decision of the S.D.O. that the transfers by lease made to the respondents were in violation of the provisions of Section 170-B but further held that as permanent structures have been built on the land, the petitioner would be entitled to compensation to be determined in accordance with the provisions of Section 170-B(3)of the Code. The Collector, therefore, remanded the matter to the S.D.O. with a direction that compensation for the land payable to the petitioner be determined in accordance with the provisions of Section I70B(3) read with the provisions of Land Acquisition Act 1894.
3. Against the orders of the Collector, the respondents 3 to 6 preferred appeals to the Additional Commissioner, Raipur. The Addi-tional Commissioner, Raipur by order dated 29-4-1985 took a view that the provision of Section 170B(3) is not attracted in such illegal transfers. He, therefore, set aside the order of remand of the Collector and maintained the order of the S.D.O.
4. The respondents 3 to 6 thereafter preferred revisions to Board of Revenue which by the impugned order dated 25-6-1986 partly allowed the revisions by setting aside the order of the Additional Commissioner in second appeal and maintained the order of the Collector dated 22-10-1984 by which the case was remanded to the S.D.O. for determining the quantum of compensation for the three parcels of land in question.
5. It may also be mentioned as one of the i mportant facts that duri ng pendency of proceedings under Section 170B before the Authorities under the Code, the petitioner along with others similarly situated persons in possession of land alleged to have been purchased from Aboriginals had filed a writ petition M.P. 2550 of 1984 (Thadamal v. Secretary ) in which the constitution validity of provisions of Section 170B of the Code was challenged By a common order passed in M.P. 1346 of 1981 (Dhirendra Nath Sharma v. State of M.P.) reported in 1985 MPLJ 786: (AIR 1986 Madh Pra 122), all the petitions were dismissed and the constitutional validity of Section 170B was upheld. During pendency of those petitions the parties were directed to maintain status quo with regard to the possession of the land in dispute.
6. Shri R.K. Pandey, learned counsel appearing for the petitioner points out serious legal error committed by the Board of Revenue in applying the provisions of sub-section (3) of Section 170B and Section 170C and Section 170D of the Code to the transactions in question. It is submitted that subsection (3) of Section 170B providing for payment of compensation in respect of land already used for raising building or structure the provision contained in Section 170C barring appearance of advocates in the proceedings as also Section 170D barring second appeals in proceedings under Section 170B of the Code are applicable only to the scheduled areas in accordance with the above mentioned amendments incorporated to the Code in terms of Sub-paragraph (1) of paragraph 5 of the Vth Schedule to the Constitution of India. I have examined the original notification published in M.P. Raj Patra dated 6-1-1984. It is clear that those above mentioned amendments were incorporated in the Code by legislative Act of the Governor in exercise of powers conferred by Sub-paragraph (1) of paragraph 5 of the Vth Schedule to the Constitution of India.
7. From the above notification it is clear that the provisions i.e. Sub-section (3) of Section 170B, Section 170C and Section 170D are applicable only to scheduled areas as notified in terms of Clause 6 of Vth Schedule. Under explanation (a) below Section 165(6C) of the Code 'Scheduled Area' has been defined to mean area declared to be a Scheduled Area within the State of M.P. under paragraph 6 of the Fifth Schedule to the Constitution of India.
8. I have also looked into the said Schedule containing the areas as declared to be scheduled areas within the meaning of clause 6 of Schedule V of the Constitution. The said schedule is reproduced by Dr. Harihar Niwas Dwivedi in his M.P.L.R. Code, 11th Edition at page 604. From the contents of the said schedule, I find that in District Durg only Balod has been included in the scheduled area. When I called the original notification named the Scheduled Areas (States of Bihar, Gujarat, M.P. and Orissa) year 1977 published in Current Indian Statutes, 1978 Pt. I page 134, I find that only Dondi tribal Development Block of Balod Tahsil in Durg District is included in the Scheduled Area.
9. The three parcels of land in question do not fall in Balod Tahsil of Durg District. The lands are situated within the Corporation limits of Durg city. It is thus clear that the Board of Revenue proceeded on aerroneous legal assumptions that the provisions of Sections 170B(3) and 170C and 170D are applicable to the three cases of the three respondents concerning the lands within the limits of Durg City. The direction for determining quantum of compensation by the Collector and the decision of the Board of Rev-enue in holding that the second appeal was barred in the matter were both erroneous.
10. Irrespective of the fact whether the Board of Revenue proceeded on an erroneous assumption that provisions of Sections 170B(3) and 170C and 170D are attracted to the case. I have heard the learned counsel for the parties on merits for deciding the validity of the orders passed by the S.D.O. in original proceedings under Sec-tion 170B(2) of the Code and the orders of the Commissioner upholding the same.
11. Learned counsel appearing for the petitioner then contended that on admitted facts thethree respondents were in possession of the landfor the period mentioned in Section 170B of theCode and they failed to supply the necessaryinformation about their possession in the prescribed form within the prescribed period inaccordance with Sub-section (2) of Section 170B.Therefore, the Sub Divisional Officer was rightin holding that the lands in question stand reverted to the petitioner as member of AboriginalTribe and he was competent to make such adirection. Since the lands were situated in non-scheduled areas, the question of determinationand payment of compensation under sub-section(3) would not arise.
12. Shri V.K. Tankha, learned counsel appearing for the three contesting respondents, firstly raised an argument that the three parcels of land in question cannot be termed as 'Agricultural Lands'. According to him they were leased out by the petitioner to the respondents for a non agricultural purpose of starting shops. They continued to be so used for non agricultural purpose for such a long duration since prior and during pendency of proceedings under Section 170B of the Code before the Authorities. It is submitted that the lands in question, therefore, ceased to be 'agricultural lands' and the provisions of Section 170B could not have been resorted to by the petitioner. The authorities were not competent to direct the return of the lands treating them to be agricultural lands. It is submitted that the words 'Agriculture' and 'Land' have been separately defined under the Code but the expression 'Agricultural Land' used in Section 170B has to be given its general meaning as a land which is actually being used for agriculture or is capable of being so used. It is submitted that the land is within Corporation limits of Durg. It was leased on monthly rent for running shop. The respondents have raised permanent structures on the land and are carrying on their business from the year they entered into their possession sometime in between years 1965-70. To such land, provisions of Section 170B are not attracted. For the above proposition reliance is placed on the decisions reported in the case of Commr. of Wealth Tax v. Officer in Charge, (Court of Wards), Paigah, AIR 1977 SC 113, Court of Wards, Paigah v.Commr. of Wealth Tax. AIR 1969 Andh Pra 345 (FB), Sri Krishna Rao v. Third Wealth Tax Officer, AIR 1963 Mysore 111 and on the case of Parmananda Das v. Sankar Rath,AIR 1951 Orissa 11.
13. Shri R.K. Pandey, learned counsel appearing for the petitioner on the other hand in his counter reply submitted that a land which was recorded as Bhumi Swami in the name of petitioner under the Code would retain its character as 'agricultural land' irrespective of its unauthorised user for non-agricultural purposes. According to him for the purpose of the code unless an agricultural land is duly diverted with the permission of Revenue authorities for non Agricultural user, the land does not lose its character as recorded in the Revenue papers. It is submitted that without due diversion of the land from agricultural to non agricultural use in accordance with Section 172 of the Code, character of land does not lose its character as originally recorded.
14. Shri Tankha learned counsel thereupon relied on Sub-section (7) of Section 172 of the Code to contend that where a land in urban area is kept fallow for a continuous period of two years, it shall be deemed to have been diverted for non agricultural purposes.
15. The second submission made by the counsel appearing for the contesting respondents is that even if the provisions of Section 170B(3) and Section 170C and Section 170D are not applicable to the lands in non scheduled area, the original provisions contained in Sub-section (3) of Section I70B, prior to its amendment by Governor in exercise of powers in Sub-paragraph (1) of paragraph 5 of Vth Schedule to the Constitution of India, would nonetheless be applicable to the lands in question. According to him it was, therefore, necessary for the Authorities to record a finding on the question whether the transactions in question were vitiated or hot and whether the Member of the Agricultural Tribe has been defrauded of his legitimate right.
16. The provisions of Section 170B of the Code as originally enacted and applicable to non scheduled area and Sub-section (3) with modification as introduced under Clause 5 of Vth Schedule of the Constitution of India need reproduc- tion for considering its proper application and interpretation. They read as under :
'(3) On receipt of the information under Subsection (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 transferer and, if he is dead, in his legal heirs.
(3) On receipt of the information under Subsection (1) the Sub Divisional Officer shall make such enquiry as may be 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 -
(a) Where no building or structure has been erected on the agricultural land prior to such finding pass an order revesting the agricultural land in the transferor and if he be dead, in his legal heirs.
(b) Where any building or structure has been erected on the agricultural land prior to such findings, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 (No. 1 of 1894) and order the person referred to in Sub-section (1) to pay to the transfercr the difference, if any, between the price so fixed and the price actually paid to the transferer: Provided that where the building or structure has been erected after the 1st day of January, 1984 the provisions of Clause (b) above shall not apply : Provided further that fixation of price under Clause (b) shall be with reference to the price on the date of registration of the case before the Sub Divisional Officer.'
17. There is no difficulty from the above quoted clear provisions in accepting the contention of the learned counsel for the contesting respondents that Sub-section (3) quoted above as originally enacted is applicable to non-scheduled areas and Sub-section (3) as inserted in exercise of constitutional powers by the Governor under Vth Schedule of the Constitution is applicable to scheduled areas.
18. It is not disputed that in accordance with requirement of Sub-section (2) of Section 170B of the Code, no intimation in the prescribed form was given by the respondents, who were in pos-session of the land on the prescribed date and the land belonged to a member of aboriginal tribe.
19. The main submission advanced on behalf of the respondents first deserves consideration It is contended that the lands were leased for running shops and are being so used for non-agricultural purposes. It is, therefore, not an 'agricultural land' within the meaning of Section 170B and the provision, therefore, is not attracted.
20. The words 'agricultural land' has not been defined under the Code. If the provisions of the Code are examined, they seem to be applicable to all kinds of lands put to whatever use. The words 'agricultural land' have to be understood in thecontext of the subject matter of the relevant provisions in the statute and in the light of the aims and objects of such provisions.
21. The provision in Section 170B of the Code has been introduced by amendment Act No. 15 of 1980 with obvious aim to protect aboriginals against exploitation and restore possession of agricultural lands to aboriginals who have lost them because of their unequal bargaining position due to their social and educational backwardness.
22. It is settled cannon of construction of statue that if the language permits, an interpretation which best fulfils the object of the legislation has to be preferred to one which may result in its frustration.
23. 'Agricultural Land' as understood in its general meaning, no doubt may include such land which is actually being used for agricultural purpose or is capable of being so used because of its special features and qualities. Such general meaning to the words 'agricultural land' cannot be assigned for the purpose of Section 170B as that would defeat the very purpose of the provision which is enacted to protect the agricultural lands of the aboriginals and to restore them, if lost as a result of some unequal bargain.
24. If the contention, as advanced on behalf of the respondents is accepted , the easiest way of avoiding the application of Section 170B of the Code would be to persuade the aboriginal to part possession of his land for non-agricultural purposes or after obtaining possession from him change its user from agricultural purposes.
25. Section 170B falls in Chapter 12 of theCode dealing with the various kinds of tenure holders, their rights and liabilities, their power lo dispose of the land and restrictions on transfers as also mode of inheritance. A land recorded as Bhumiswami for agricultural purposes can be diverted to use for non-agricultural purposes only in accordance with procedure and prior permission laid down in Section 172 of the Code and the Rules framed thereunder. Sub-section (7) of Section 172 on which reliance is placed on behalf of the contesting respondents is not attracted lo the facts of this case. Under Sub-section (7), if an agricultural land situated in urban area is kept fallow for a continuous period of two years, it would be deemed to be diverted to non-agricultural purposes' but as mentioned therein such presumption is only for the purposes of assessment of land revenue. This is not a case where agricultural land was allowed to remain fallow. It was granted on lease for non-agricultural purposes and structures have been raised on the same.
26. A land, therefore, recorded as 'agricultural land' does not cease to be so under the Code unless its character is changed in accordance with the procedure laid down in Section 172 of the Code.
27. In the considered opinion of this Court, for the purposes of Section 170B, within the words 'agricultural land' used therein, would be included such agricultural lands duly recorded as such - may be they were illegally diverted to non-agricultural use. Construed otherwise, the provision which is a social beneficial legislation intended for protection of aboriginals is liable to wicked abuse by the clever and mischievous transferees of such lands from the aboriginals. Agricultural land, which is illegally diverted to non agricultural use, in contravention of Section 172 of the Code, therefore, does not lose its character as 'agricultural land' for attracting provisions of Section 170B of the Code. The case relied upon (supra) for interpretation of the words 'agricultural land' in the context of the legislation under consideration therein are distinguishable as most of them relate to the provisions of Income-tax Act and Wealth Tax Act.
28. The other contention raised on behalf of the contesting respondents is that in accordance with Sub-section (3) of Section I70B applicable to non scheduled areas, the respondents shouldhave been heard to satisfy the authorities that the aboriginal was not defrauded to deprive him of the land. It is prayed that this Court should remand the matter for the purpose. It is also submitted that in fact the petitioner belongs to a wealth family of ex -Malguzars and is living in urban area. He cannot be equated with ignorant aboriginals who are living in rural areas. It is pointed out that the petitioner in fact intends to hand over the land to a builder for building a big shopping complex on the site and has in fact made agreements for the purpose with the said builder.
29. According to this Court, the last mentioned submission is wholly irrelevant. An aboriginal is an aboriginal - may be, he comes from a wealthy class of ex-Malguzars. For purpose of application of Section 170B no such classification can be made between aboriginals who are from wealthy families with urban background and others living in rural areas.
30. Whether in the instant case the aboriginal was defrauded is basically, a question of fact which the S.D.O. has decided. It is not a case where no opportunity was granted to the contesting respondents to satisfy the Authority that no fraud was practised. Sub-section (3) as applicable to to non scheduled areas only comes into operation if an information with regard to the possession is received from the party in possession in accordance with Sub-section (1) of the said section. Admittedly, in this case no such information as required by Sub-section (1) was supplied within the prescribed time. Reversion of land to the aboriginal, therefore, is a statutory result under Sub-section (2) of Section 170B. Sub-section (2) of Section 170B came up for consideration before a Division Bench of this Court in the case of Dhirendra Nath Sharrna v. State of M.P. 1985 MPLJ 786: (AIR 1986 Madh Pra 122). In upholding the constitutional validity of the provisions contained in Sub-sections (2) and (3), it was held that although a presumption under Sub-section (2) arises against the person in possession of the agricultural land of the aboriginal, yet it contemplates making of an order raising such presumption which can be rebutted by , the party likely to be adversely affected. The relevant part of the decision in Dhirendranath (AIR 1986 Madh Pra 122) (supra) is quoted below (at Pp. 127 and 128 of AIR) :-
'It is obvious that in all cases including those in which a presumption arises under Sub-section(2) a final order contemplated by Sub-seclion (3) has to be made and it is only the making of such an order which results in the declaration that the transaction is null and void and the agricultural land revests in the transferor or his legal heirs. Unless such an order is made even in cases iji which the presumption under Sub-section (2) arises, there would be no order for implementation to bring about the desired result.
xxx xxx xxx xxx In our opinion, this apprehension also is not justified. Once it is held, as was contended by the learned Additional Advocate General, that an order contemplated by Sub-section (3) has to be passed invariably in every such case including a case falling within the ambit of Sub-section (2), all the incident attaching to such an order made under the Code are automatically attracted. It would be open at least to the appellate authority in suitable cases, if proper cause is shown to reopen the matter to direct the Sub Divisional Officer togive a fresh decision under Sub-section(3) on merits taking into account the cause shown by the transferee. This also ensures reasonabtlity of the procedure in all cases including those falling within the ambit of Sub-section (2). Such an order may also be treated as an ex parte order which may be set aside by the Sub Divisional Officer himself on sufficient cause being shown to explain the transferee's default in notifying the particulars within the period prescribed.'
31. As has been mentioned above the present respondents had also filed petitions in this Court which were dismissed in termsof the orderpassed in Dhirendra Nath's case (AIR 1986 Madh Pra 122) (supra). They were aware of the law laid down by this Court and the manner in which the relevant provisions of Section 170B were interpreted and read down. Despite the law as laid down, the contesting respondents made no attempt to prove before the competent authority or the appellate authorities that the respondents are in lawful possession of the agricultural land and had not defrauded the aboriginals. In the instant case, the provision of Section 170B was invoked by the aboriginal himself. The competent authority duly noticed the respondents and heard them. The facts not seriously in dispute before him were that on a small amount of rent to be paid permonth, possession of the land was obtained on lease for a limited duration. There was no lease granted by the petitioner of a permanent nature for raising a Pakka structure on the land. On a land leased for a small amount of sum the contesting respondents have built permanent structures and thereby have brought a situation of creating an irrevocable lease. That has virtually deprived the petitioner as aboriginal of the land and the benefits arising from that land. Whether the aboriginal would be able to get the land diverted for being used for construction of a shopping complex is not the matter relevant at this stage. The conclusion, therefore, of the S.D.O. on the basis of facts before him that the aboriginal was defrauded cannot be said to be erroneous or devoid of any facts.
32. A mention need also be made of an argument made in the course of hearing that in one of the cases of the contesting respondents, the petitioner preferred no revision to the Board of Revenue. Even if there was such alapse, all the orders passed by the authorities under the Code are before me and the points involved are common. The fact that in one of the cases no revision was preferred to the Board of Revenue is no ground to deny the petitioner relief against even such a respondent as all orders of revenue authorities subordinate to the Board of Revenue are under challenge before me on common grounds.
33. To conclude, I hold that the provision of Sub-section (3) of Section 170B, as inserted in the Code by the Governor in exercise of constitutional power in paragraph 5 of Vth Schedule of Constitution of India for scheduled areas, is not applicable to the lands in dispute as they fall in non-scheduled areas in Durg town. The provision of determining compensation for such land used for building or structure as contained in Sub-clause (b) of Sub-section (3) of Section 170B as inserted by the Governor, therefore, could not be availed of and the direction of the Board of Revenue and the Collector, therefore, cannot be held to be in accordance with law.
34. I also hold that since the contesting respondents failed to furnish information with regard to the possession of agricultural land belonging to the aboriginal tribe within the prescribed time in accordance with Sub-section (1) and failed to justify continuance of their possession on the land, presumption, under Sub-section (2) of Section 170B was rightly raised against thepetitioner. The S.D.O. and the Additional Commissioner were right in directing the restoration of the agricultural land to the petitioner.
35. In the result, this petition succeeds and is hereby allowed. The impugned orders (Annex-ure P/1) dated 26-6-1986 (Annexure R/6 with the return) passed by the Board of Revenue and of the Collector dated 22-10-1984 (Annexure P/6) and dated 7-8-1986 (Annexure P/7) are hereby quashed. The orders made by the Sub Divisional Officer in original proceedings under Section I70B dated 9-4-1984 (Annexures P/3 and P/4) passed respectively in the cases, of respondents Mansuklal and Thadamal as also the order of Commissioner (Annexure P/9) in respect of the land now in possession of respondent No. 5, are hereby maintained. In the circumstances, I, however, make no order as to costs. The amount of security, if in deposit, be refunded to the petitioner.