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WP No.4478/2013
10-08-2015
Parties through their counsel.
The petitioner before this court has filed this present
petition being aggrieved by the order dated 15-03-2013
passed by the Collector, Dhar in Case No.37/2012-13/A-21.
The facts of the case reveal that the petitioner is a member
of Scheduled Tribe community and has preferred an
application u/s 165 of the code of Civil Procedure for grant
of permission of sale of his land. The Sub-Divisional Officer
has directed the Collector to submit a report and a report
was submitted in the matter. The Collector has rejected his
application.
The contention of the petitioner is that the Collector has
committed

error

in

rejecting

the

petitioner for grant of permission.

application

of

the

It has been further

stated that the Collector has committed error in holding

that the petitioner cannot ask for permission of transfer as
he belongs to Scheduled Tribe community.

It has been

further stated that as per the provisions of Section 165(6) of

the Madhya Pradesh Land Revenue Code, a Bhumiswami
can certainly apply for transfer of his Bhumiswami rights
and permission has to be granted in the matter and,
therefore the Collector has erred in law and facts in
denying the permission. It has been further stated that the
Collector has committed error by ignoring the statutory

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provisions as contained u/s 165 of the Madhya Pradesh

Land Revenue Code, 1959 and, therefore, as it was going to
be a bona-fide transaction, the impugned order passed by
the Collector is bad in law.
It was vehemently argued by Sr Counsel Mr C.L. Yadav
that the application should have been decided u/s 165 (6-a)
of the Madhya Pradesh Land Revenue Code, 1959.
Reply has been filed in the matter and it has been
vehemently argued by Mr Rohit Mangal, Government
Advocate that the order of Collector does not suffer from
any illegality and the petitioner was denied permission in
light of the provisions as contained u/s 165

(6-a) of the

Madhya Pradesh Land Revenue Code, which provides that

no such permission can be granted in respect of a transfer
belonging to aboriginal tribe in light of section 165 (6-a). It
is also been stated that Collector without due application of
mind, keeping in view the fact has rightly rejected the
application.
Heard learned counsel for the parties and perused the
record.
In the present case, the sole dispute is whether the order
passed by the Collector dated 15-03-2013 is in consonance
with the statutory provisions governing the field. It is an
undisputed fact that the petitioner is a member of
aboriginal tribe.

A notification issued u/s 165 with the

State Government dated 293-1996 includes the tribe of

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the petitioner and there is no dispute that the petitioner

belongs to aboriginal tribe. Section 165(6) reads as under
:(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 form 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 as a consequences 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.

Section 165(6) (i) provides that any areas predominately

inhabited by aboriginal tribes land cannot be transferred
and no such permission can be granted. Area in question is
also

been

notified

by

the

State

Government

vide

notifications dated 11-03-1997, 22-02-1977 published in

Madhya Pradesh Rajyapatra pt. dated 19-3-1977 and the
area in question Tehsil Manawar, District Dhar has been
notified by the State Government and, therefore, in light of
the aforesaid statutory provisions of law the Collector was
certainly justified in rejecting application submitted by the
petitioner u/s 165 of Madhya Pradesh Land Revenue Code,
1959. It is pertinent to note that the Division Bench of this
court has dealt with the controversy involved in the case of

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Sudhakar S/o Baoorao Kadu Vs. State of M.P. and

others reported in 2015 (1) MPLJ 3472 and Paragraph-3
of the aforesaid judgment reads as under :03. To examine this argument, we may usefully refer to
paragraph 5 of the Fifth Schedule of the Constitution,
which reads, thus:"5. Law applicable to Scheduled Areas. (1) Notwithstanding anything in this Constitution, the
Governor may by public notification direct that any
particular Act of Parliament or of the Legislature of the
State shall not apply to a Scheduled Area or any part
thereof in the State or shall apply to a Scheduled Area or
any part thereof in the State subject to such exceptions
and modifications as he may specify in the notification and
any direction given under this sub-paragraph may be given
so as to have retrospective effect.
(2) The Governor may make regulations for the peace and
good government of any area in a State which is for the
time being a Scheduled Area.
In particular and without prejudice to the generality of the
foregoing power, such regulations may(a) prohibit or restrict the transfer of land by or among
members of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the
Scheduled Tribes in such area;
(c) regulate the carrying on of business as money-lender by
persons who lend money to members of the Scheduled
Tribes in such area.
(3) In making any such regulation as is referred to in subparagraph (2) of this paragraph, the Governor may repeal
or amend any Act of Parliament or of the Legislature of the
State or any existing law which is for the time being
applicable to the area in question.
(4) All regulations made under this paragraph shall be
submitted forthwith to the President and, until assented to
by him, shall have no effect.
(5) No regulation shall be made under this paragraph
unless the Governor making the regulation has, in the case
where there is a Tribes WP No.387/06 Advisory Council for
the State, consulted such Council."

-5(emphasis supplied) On a conjoint reading of the above

provision, it is obvious that the Governor is authorised to
repeal or amend any Act of Parliament or of the Legislature
of the State or any existing law which is for the time being
applicable to the Scheduled Area so as to make it
inapplicable to Scheduled Area with specified exceptions
and modifications, by issuing public notification in that
regard. Clause (1) of paragraph 5 has very wide import.
The power invested in the Governor is to make any law
inapplicable to the Scheduled Area. It is not limited to law
regarding land owned or possessed by the Scheduled
Tribes in the Scheduled Area. The Governor was thus
competent to issue the subject notification and more so, in
respect of any transaction or transfer of land in the
Scheduled Area - be it between Tribals and Non- tribals or
Non-tribals and Non-tribals. Further, the sweep of Subclause (a) read with sub-clause (b) of Clause (2) of
paragraph 5 of the Fifth Schedule, leaves no manner of
doubt that restriction for transfer of land situated in
Scheduled Area between Tribal and Non-tribal and also
between Non-tribal and Non-tribal can legitimately be
imposed. Notably, sub-clause (b) envisages providing of
mechanism to regulate the allotment of land to members of
the Scheduled Tribes in Scheduled Areas. The avowed
object of these provisions is furtherance of interests of
Scheduled Tribes, and to usher in peace and good
governance in such area. In that view of the matter, the
challenge to the competence of the Governor to enact
provision such as Sub- section (6-a) of Section 165 of the
Code of 1959 cannot be countenanced.

In light of the aforesaid, no case for interference is made

out in the matter.
The admission is declined.
No order as to costs.
Certified copy as per rules.

(S. C. SHARMA)
JUDGE
RP