"5-Acre Rule" Applies Only To Coercive Attachment, Not Voluntary Sale Of Tribal Land U/S 165(6) Land Revenue Code: Chhattisgarh High Court

The Chhattisgarh High Court has held that the requirement of retaining five acres of irrigated land or ten acres of unirrigated land is applicable only to attachment or sale of land in execution of a decree or order under Section 165(7) of the Chhattisgarh Land Revenue Code, 1959, and cannot be imported into proceedings for grant of permission to voluntarily transfer tribal land under Section 165(6). The Court observed that the authorities erred in rejecting the petitioner's application by applying a condition not contemplated under Section 165(6).Justice Amitendra Kishore Prasad was hearing a writ petition challenging the orders rejecting the petitioner's application for permission under Section 165(6) of the Chhattisgarh Land Revenue Code, 1959, to sell a small portion of his land to a non-tribal purchaser. The petitioner required funds for repayment of loans and meeting domestic necessities, including marriage expenses. Pursuant to his application, the Tehsildar recommended granting permission. However, the Sub-Divisional Officer recommended rejection of the application on the ground that the petitioner would be left with less than five acres of land. Acting on this recommendation, the Collector rejected the application, which was affirmed by the Board of Revenue.The petitioner contended that Section 165(6) does not prescribe any mandatory requirement that a tribal landholder must retain a minimum of five acres of irrigated land or ten acres of unirrigated land after transfer. The Court noted that Sections 165(6) and 165(6-a) merely regulate voluntary transfers of tribal land by requiring prior permission of the Collector, whereas Section 165(7) operates in an altogether different field relating to attachment or sale of land in execution of a decree or order. It held that the embargo contained in Section 165(7) is confined to coercive attachment or auction sale and cannot be extended to voluntary transfers under Section 165(6). The Court found that the Collector and the Board of Revenue had misconstrued the statutory provisions by importing into Section 165(6) the requirement that the tribal bhumiswami must necessarily retain five acres of irrigated land or ten acres of unirrigated land after the proposed sale. “… Section 165(6) of the Code, 1959 nowhere prescribes any mandatory condition that a tribal bhumiswami must retain minimum 5 acres of irrigated land... The authorities appear to have misconstrued the provisions of Section 165(7) of the Code and mechanically applied the same while deciding the petitioner's application under Section 165(6),” the Court observed. The Court further noted that the petitioner sought permission to sell only a small portion of land owing to bona fide domestic and financial necessity and that the enquiry conducted by the Tehsildar disclosed no element of fraud, coercion or exploitation in the proposed transaction. It observed that the object of Section 165(6) is to protect members of the Scheduled Tribes from exploitation and distress alienation of land, but the provision cannot be interpreted in a manner that defeats the genuine livelihood and domestic necessities of a tribal landholder.Accordingly, the Court set aside the orders of the Collector and the Board of Revenue and remanded the matter to the competent authority for fresh consideration of the petitioner's application in accordance with law.Case Title: Vijay v. State of Chhattisgarh & Ors. [WPC No. 2351 of 2023].Click Here To Read/Download Order

"5-Acre Rule" Applies Only To Coercive Attachment, Not Voluntary Sale Of Tribal Land U/S 165(6) Land Revenue Code: Chhattisgarh High Court

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"5-Acre Rule" Applies Only To Coercive Attachment, Not Voluntary Sale Of Tribal Land U/S 165(6) Land Revenue Code: Chhattisgarh High Court

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