WP/2182/2003 of SARKAR SINGH Vs THE STATE OF C.G.and ORS. on 16 December 2003

1. State of Chhattisgarh,Throigh - The Secretary,Revenue Department,D.K.S. Bhawan, Raipur (C.6.).

RESPON&ENTS;

President, Bocrd of Revenue,Chhattisgarh (€.©.).

Sub Divisional Officer,&ur9 (c.e.).

Tehsildar,Dhomdha, &istrict: [>ur9.

POSTFOR ORDERON 16th bECEMBER. 2003

Sd/-L.C.Bhadoojudge

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HI6H COUKT WJU&ICATURE. CHHAmS6ARH AT BILASPURWrit Petition No. 2182 of 2003

PETETIONER:

Sarkw Singh, S/o Badri PrasadAged about 50 yecrs, R/oVillage[-]Jatagharra,,Tehsil Dhamdha, bistrict Qurg.

Versus

1. State of Chhattisgorh,Throigh - The Secretary,Revenue Department,b.K.5. Bhawan, Raipur (C.Q.).

RESPONDENTS!

President, Boo'dof Revenue,Chhattisgarh (€.©.).

Sub Oivisional Officer,C>urg (C.©.).

Tehsildar,Dhamdho, District; Dur^.

Shri Ajay Shrivsstwa, Advocate for the petitioner.

Shri Ranbir Singh,$ovt. Advocate for the State/respondents 1, 3 and 4.

Before; Hon'ble Mr. Justice L.C. Bhadoo. J.

ORDER(Possed on/^,t>ecember, 2003)

By this writ petition filed under Articles 226/227 of theConstitution of India, the petitioner has challenged the orderdated 9-7-2033 passed by the Board of Revenue in Appeat caseNo. 1062/A-68/2002-2003. order dated 9-5-2003 passed by theSub Divisional Officer, burg in case No. 4-A/68/2002-20)3 andorder dated 29-10-2002 passed by Tehsildar, bhamdha in caseNo. 5-A/68/2(X)2-2003.

1. The petitioner''s case is that all the three orders passed byBocrd of Revenue, Sub. bivisional Offlcer and the Tehsildar ®

agoinst the prineiple of nart-ural justice and ignoring the earlierdecisions possed in respect of the disputed land.The properopportunity wos not given to the petitioner to defend his cose.6/en the full particulars of the land including map and date ofencroachment and the date of the report was not mentioned inthe show cause notice.The order was passed hurriedly withoutgiving proper opporl'unity to the petitioner. Tha statements wererecorded by the Tehsildar in a printed form ond no opportunityfor ct'oss-examinotion was given.The Board of Revenue passedtheimpu9ned order without callin9 for the records.The petitioner being an iltiterofe viltagsr wcs not oble to maintainthe record.The respondents ought to have remanded bcek thematter fo Tehsildar to see whether ony encroochment case wcspreviously instituted in respect of the land in question and thedecision of the Civii Suit No. 33-A/86 passed by the 4111 CivilJudge,Class-2,t>urgon23-12-1987wasnotconsidered,fherefore, orders be set-aside.

I hove heard the leorned counsel for the parties.

.4 perusat of the Annexwes shows that PatwiB'i Halka made areportAnnexure-P/5toTehsildor.abouttheillegalencroachment by the petitioner on ©overnment land bearingUissra No. 607/1, Rakba 2.(X) h. by corwerting it into a field. Onthis, show-cause notice, Annexure-P/6 issued by Tehsitdar andthereafter Tehsildar recorded the stotement of Patwari and ofthepetitionerAnnexure-P/7ondpassedthe orderdated29-10-2002.

A perusal of the order dated 9-5-2003 pa^ed by the learnedSub Oivisional Officer reveals thttt the points were raised onbehalf of the petitioher that eot'lier fllso r-^Qrding the same landencroachment proceedings were initiated which was diallengedbefore the Civi! Cour-t and the Civil Court declared thelorder of- r:

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Revenue Authority as illegol.The learned S.t>.0. has mentionedthat the certifiedeopy of the order was not filed and any otherrelevant Revenue record was also not filed to show that the landjn question was declin'ed as Bhumiswami land. It has further beenmentioned that the petitioner hcs said that the lanc! in.questionwas in possession of his maternal grand father*.But in thisconnection no document has been filed that the land in questionwasinpossessjon of the family of the petitionercmd hispossession is not since last 6 years, whereas the petitioner's caseis that the petitioner and his aneestors were in possession of theland in question even before the enactment of the ChhattisgarhLand Revenue Code, 1959 and the leamed Revenue Board afterrelying on the record of Tehsildar dismissed the appeal, A certified copy of the judgment of -the Civil Court dated23&eeemberl987hasbeen produced as Annexure-P/9 inwhichSuryapraktsh's right rqarding land bearing Khasra Nos. 171,174,176, 192/2. 19Z/3. 192/4 and 192/5. total area 30.57 acre wasdeclared, and it wos deciared that this land was in possession ofSurprakash. The petitioner's cloim is that before the abolition ofMalguja-! acivil suit wasfiled by Chainsirgh, Shiv Singh, Bolir-dmond Umed Singh. Choinsingh was the brother of the petitioner'sfather.Suryaprakash also filed the civil Suit No. 33-A/6 whichwas decided on 13-12-87.

The main argument of the learned counsel for the petitioner isthat the documentsof the petitioner were nat considered by theTehsildar, Sub Divisional Officer and Board of Revenue and noproper opportunity wcss given to the petitioner to produce thedocuments.Since the petitioner is claiming that the Judgmentpassed by the Civil Court Annexure-P/9 relates to the Ismd inquestion, in the circumstonces', I am of the opinion that it isproper to remand the case to the Tehsildar for conducting anenquiry about the claim of the petitioner whether his ancestocswere in possession of the land in question since long ond whethar l^

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10. II.

12. the land in question is the same land whjch was declwed asBhumiswami land of Surya Prakash in the Civil 5uit No. 33-A/86by +he 4* Civil Judge, Closs-II,burg by its order dated23-12-1987.

Th& Teshildar is directed to decide the matter after givirg ful!opportunity to tiie petitioner to prove his ccse and to furnish hisdocumentary evidence showing his right or* title about the land inquestion. Even though the Section 248 of the Chhcttisgarh Land"ftevenueCode1959envisagesthatifanypersonwhounauthorisedly takes or remains in possession of any unoccupiedland, obadi, service Idnd w upon any land which is the property ofthe Sovernment may be summarily ejected by order of theTehsildar."As per the provisions of this Section Tehsildar isrequired to conduct the summary enquiry.But when thepetitioner is claiming that the land in question is in possession ofthe petitioner since his ancestors and for that purpose he wantsto produce the judgment of the Ciyil Court', the Tehsildar oightto have given proper opportunity to the petitioner to prove hiscase by adducing the documentary or otiier evidenee.

Conclusion

In the rssult, for the foregoing reasons, the orders passed bythe learned Tehsildar, Sub &ivisional Offieer andBoord ofRevenue are set aside and quashed. The case is t'emanded back tothe Tehsildar, Dhamdha to dedde the matter after giving fullopportunity to the petitioner to adduce documentary or othere'/idence to prove his title or ri9ht on the Idnd in question.

The certified copy of the judgment dated 23-12-1987 passed bythe 4Civil Judge, Class-2, Durg, may be retumed to thepetitioner on filinga Photostat copy of the sameby thepetitioner for production of'the same before the Tehsildar.With these observations and directions, the writ petition isdisposed of..; ;Sd/-LC.BhadooJudge