Allowed

Udho Singh and Ors. v. the State of M.P. and Ors.

Chhattisgarh HC9 Mar 2010WP/3209/1992

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, setting aside the Board of Revenue's order. It held that the tank should be recorded in the name of the respondent proprietor who purchased it, villagers retain their Nistari rights, and fresh revenue proceedings by a third party were not maintainable as earlier proceedings had attained finality.

What did the court decide?

Impugned order of the Board of Revenue set aside; subject tank recorded in the name of respondent No.5 Madho Singh; villagers to exercise Nistari rights.

Udho Singh and Ors. Vs the State of M.P. and Ors. — Land Acquisition | Chhattisgarh HC (2010)

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(a?)

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Single Bench : H on’ble Shri Justice Praéhaht Kumar Mishra

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Writ ~——__Petition No.3209 of 1992

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Udho Singh and others

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VGrSUS

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State of MP. (now Chhattisgarh) and others

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ORDER

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Postfor 9-3-2010 i i)! Sdl‘ P rashant^KumarMishra Judge

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HIGH COURT^{O‘FCHHATTISGARHATBILASPUR}

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Sin_qle Bench: Hon’ble Shri Justice^{PrashantKumarMishra}

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Writ Petition No.3209 of 1992

Petitioners

Udho Singh^andothers

versus

Respondents State of M.P. (now^{Chhattisgarh)} and others

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Present: Shri Anil Kumar^{Pandey,counselforthe} petitioners. Shri Sushii Dubey, Government^Advocate for the State/respondents No.1, 3 and^4.

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No one appears^{forrespondentNo.5.}

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Writ Petition^{underArticle226/227oftheConstitutionofIndia}

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ORDER

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(Passed^{onMfrMarch,2010)}

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In this petition^{underArticles226and227oftheConstitutionof} lndia, the petitioners^havecalled in question^the legality, validity and P—7) passed^bythe propriety^{oftheorderdated2-5—1992(Annexure} Board of Revenue^{andtheCollector’sorderdated23—3-1987} (part^of Annexure P—4) and the order releasing the tank in favour of ExMalgujar.

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Case of^the petitioners^{isthatthesubjecttankonKhasraNo.100} at Village Boriya, Tahsil Saja, District Durg belonged to the Ex— Malgujar^and the said tank was not saved in his favour under the relevant provisions of the Madhya Pradesh Abolition of Proprietary ‘the Rights (Estates, Mahals,^Alienated Lands) Act, 1950 (henceforth Act, 1950’). The Ex-Malgujar Chamru did not file any appeal or \ evision against the^{saidorderandthat} Nisfari rights^{ofthevillagers} V

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were recorded in the revenue records. The tank bears an area admeasuring 2.34 acres. The Ex-Malgujar filed an application under Section 57(2) of the Chhattisgarh Land Revenue Code, 1959 (henceforth ‘the Code, 1959’) for recording the tank in his name. The Sub-Divisional Officer on 15-5—1968 ordered that it will continue to vest in the State, however, the appellate Court of Additional Collector, Durg vide order dated 26-8—1968 ordered that the subject tank be recorded in the name of Chamru. Appeal before the Commissioner, Raipur was disposed on 13—6—1969 with an observation that the Nisz‘ari and customary rights of the villagers shall be protected. According to the petitioners, the Additional Collector, Durg could not have ordered for recording the name of Chamru on the subject tank. Proceedings regarding modification of the Nistar Patrak was initiated by the said Chamru, which ultimately went upto the^{BoardofRevenue.} The Board of Revenue, vide its order dated 251992 (Annexure P-7), which is under challenge in this writ petition, directed that the subject tank cannot be entered into Nistar Patrak because it has never been separated and entered in the Nistar Patrak. lt has been observed by the Board of Revenue^{thatthetank'isnotinexistenceand,therefore,} assessment of land^{revenueonthelandis} proper.

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Learned counsel for^the petitioners^{hasarguedthattheBoardof} Revenue should not have^{interferedwiththeorderdated} 14-12-1987 (Annexure^P—6) passed^{bytheAdditionalCommissioner,Raipur.}

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l l" 4. Learned Government^{AdvocatefortheState/respondentsNo.1,} l t l 3 and 4 has supported^theimpugned order passed by^theBoardof l l Revenue and has prayed^{fordismissalofthewrit} petition. l l l l l

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43,

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No one has appeared for respondent No.5 in spite of the fact that S.P.C. was issued to him on 22-6-2007.

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From the record‘ it appears that vide order dated 13-6-1969 (Annexure P-1), the Commissioner, Raipur Division, on an appeal preferred^{byChamru,hasdirectedthatthesaidChamrushallbethe} owner of the tank but the villagers will have their Nistari rights in the tank. Vide order Annexure P-2 passed by the Additional Commissioner, Raipur on 14-12-1987, it was directed that in the year 1968-69 itself the tank has been recorded in the name of Chamru but the villagers shall continue to enjoy Nistari rights and upon^Chamru’s interference with the rights of the villagers, he was fined with^Rs.500/— under Section 253 of the Code, 1959. The said imposition of fine is valid and since respondent No.5 Madho Singh has purchased^thetank from Chamru by registered sale-deed dated 10-4—1967,^he is now the x owner of the tank and the order passed by the^{subordinaterevenue} authorities forfeiting the crops standing^ontheland is not correct and. therefore, the orders passed by the^{Collector,Durgon12-3-1986and} 14-3-1986 cannot be interfered^with.

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lt appears that respondent No.5 Madho Singh thereafter an application before the Collector, Durg for deleting the preferred entries from the revenue^{records,whereinthesubjectlandisrecorded} as tank. This application was moved on the ground that he is cultivating the^{landforlast15} years,^{therefore,theNistarPatrakand} l revenue records deserve to be corrected. Upon completion of proceedings, which included issuing proclamation and inviting

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objections, the Collector, Durg, vide its order dated 23-3-1987 (part of Annexure P—4) directed that the land be declared as Kabil^Kastand land revenue be fixed. This order was subjected to challenge before the Additional Commissioner, Raipur, who vide his order dated 14—121987 (Annexure P-6), directed that the entry of the^{nameofChamruin} the revenue records does not appear to be proper and^the provisions of law have not been properly^adhered to. The order passed by the Collector, Durg on 23-3-1987 was set aside. The Additional Commissioner directed that^the villagers shall continue to enjoy their Nistari rights. lt is this order of the Additional Commissioner passed^on 14-12—1987, which was challenged^{byrespondentNo.5MadhoSingh} before the Board of Revenue. The Board of Revenue has partly allowed the appeal and^observedin paragraph^{13oftheorderthatthe} Collector could not have^{declaredthelandasKabilKastandthesaid} part^{oftheCollector’sorderis} illegal, however, the^{BoardofRevenue} affirmed the order passed^{bytheCollectorassessingthelandrevenue.} 8. Annexure P-3 is the application^{filedbyrespondentNo.5Madho} Singh before the Collector, Durg under Section 238 and 32 of the Code, 1959. It is by this application^{filedon18-2—1986,afreshround} of revenue proceedings^{wereinitiatedbyMadhoSinghformodification} of the revenue entries. lt appears that when Madho Singh was against under Section 253 read with Section 59 of the proceeded Code, 1959 for violation of the villagers’ rights of Nistari^andhewas " subjected to make payment of fine of Rs.500/— and forfeiture of standing crops, Madho Singh moved application (Annexure P-3) for J modification of^{therevenueentriesandthe} Nisz‘ar Patrak. As per his

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6L7

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own case, the land belonged to Chamru, which he has purchased by registered sale~deed. Thus, the land was a Bhumiswami land, which was entered as tank in the revenue records and villagers were entitled to exercise their Nistari rights. The application has been presented under Section 238 and 32 ofthe Code, 1959.

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Section 238 of the Code, 1959 makes provision regarding rights in waste land of another village whereas Section 32 of the Code, 1959 is about inherent powers of revenue Court. Apparently, neither Section 238 nor Section 32 of the Code, 1959 gives power to the Collector to change revenue entries. When the proceedings with regard to the ownership of Chamru and the Nistari rights of the villagers have already attained finality vide order dated 13-6—1969 (Annexure P-1), as referred in the Additional Commissioner’s order dated 14-12-1987 (AnnexureP—6), fresh proceeding at the instance of Madho Singh for change of revenue entries was not at all maintainable. Under the 'made Code, 1959, provisions have been to maintain record of unoccupied land under Section 233, whereas Section 234 is about preparation^{ofNistarPatrak.} Under this provision, Nistar Patrak is to be prepared embodying a scheme of management of all unoccupied land in a village, more particularly, matters specified in Section 235 of the Code, 1959. The said section, i.e., Section 235 specifies the matters to be provided for in Nistar Patrak. Section 236 of the Code, 1959 again empowers the Collector to make provision in Nistar Patrak lfor certain matters. Under Section 237 of the Code, 1959, the l lCollector has been empowered to set apart land for exercise of Nistari ‘ rights. All these provisions are applicable on the unoccupied land of

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the vage,m whereas in the case in hand, i t was Madho Singh’s own deserves to be set aside. 1.0 The Hon’ble Supreme Court in lntellectuals Form,u Tirupathi vs. State ofA.P. and others, (2006) 3 SCC 549, has held that water bodies should be sa ved and protected. Again in Susetha vs. State of T.N. and others, (2006) 6 SCC 543, the Hon’bie Supreme Court has demonstrated concern about the conservation of shortag e and ecology is preservd.e

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keeping in view the statutory scheme under the Code, 1959, this Court finds that the order passed by the Board of Revenue deserves to be interfered in exercise of powers under Articles 226/227 of the Constitution of lndia.

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l 12. ln the result, it is directed that the subject tank shall continue to be recorded in the name of res p/ pondent No.5 Madho Singh, who had rchased it from Chamru, lp”l in whose favour the order dated 13-6-1969 i l l l l l l l iv

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1‘},

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(Annexure P—1) was passed by the Commissioner; Raipur Division, which has attained finaiity. it is also ordered that the villagers shall exercise their Nistari rights over the tank and the change of revenue entries by the Collector, Durg on 23-3-1987 has rightly been set aside by the Additional Commissioner, Raipur in appeal case No.221/A74/86-87 (Annexure P—G). The order regarding assessment of land revenue by the Collector has also been rightly set aside by Annexure P-6. The present writ petition is, thus, allowed. The impugned order passed^bythe Board of Revenue is set aside tn view of the directions given^above. No order as to costs.

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SdiPrashant^KumarMishra Judge

Udho Singh and Ors. v. the State of M.P. and Ors.

Case brief

What is this about?

What did the court decide?

Udho Singh and Ors. v. the State of M.P. and Ors.

Case brief

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