Allowed

Chandrika Giri v. State of Chhattisgarh

Chhattisgarh HC1 Apr 2024WPC/1858/2024

Case brief

AI extract

What is this about?

Permitting petitioners against an ejection notice issued under Section 248 of the Chhattisgarh Land Revenue Code, 1959, the High Court held that the notice was unsustainable as it did not allow sufficient time for filing an appeal. The quashment preserves the right to appeal before the Sub-Divisional Officer.

What did the court decide?

Ejection notice dated 14.02.2024 quashed; petitioners granted time to file appeal; no coercive action allowed for 60 days.

Chandrika Giri Vs State of Chhattisgarh — Property and Title | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPC No. 1858 of 2024

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1. Chandrika Giri S/o Sadhuram Giri Aged About 52 Years Caste Goswami, R/o Village Goedri, Tahsil Pathariya, District : Mungeli, Chhattisgarh

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2. Anil Giri S/o Sadhuram Giri Aged About 41 Years Caste Goswami, R/o Village Goedri, Tahsil Pathariya, District : Mungeli, Chhattisgarh

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---- Petitioners

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Versus

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1. State Of Chhattisgarh Through Secretary, Department Of Revenue, Mahanadi Bhawan, Atal Nagar, Naya Mantralalya, Raipur, District : Raipur, Chhattisgarh

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2. Collector Mungeli, District : Mungeli, Chhattisgarh

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3. Sub Divisional Officer (Rev) Pathariya, District : Mungeli, Chhattisgarh

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4. Naib Tahsildar Tahsil Pathariya, District : Mungeli, Chhattisgarh

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5. Yogesh Tamrakar S/o Ramgopal Caste Tamer, R/o Village Goedri, Tahsil Pathariya, District : Mungeli, Chhattisgarh

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---- Respondent

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(Cause Title is taken from Case Information System)

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For Petitioners : Mr. B.M. Roy, Advocate For State : Mr. Shreyansh Mehta, P.L.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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0 2.04.2024

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The petitioners have filed this petition against the ejection notice dated 14.02.2024 issued by the Naib Tahsildar, Pathariya, District Mungeli, whereby notice of ejection has been issued against the petitioners from the Government Land bearing survey No. 167 admeasuring 0.587 hectares situated at Village Goedri, Block Pathariya, Tahsil – Pathariya, District – Mungeli (C.G.)

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Learned counsel for the petitioners would submit that the petitioners are residents of Village Goedri, and they have been in possession of Government Land for 40 – 50 years over survey No. 388/1 admeasuring 540 sq. feet situated at Village Goedri, Tahsil – Pathariya, District – Mungeli. The Mukhyamantri Abadi Patta and Bhuswami Adhikar certificates were issued in favour of the petitioners on 15.09.2017. On 14.02.2024, an ejection notice was issued by respondent No. 4/Naib Tahsildar, Pathariya. He would also submit that respondent No. 5 filed an application under Section 250 of the Chhattisgarh Land Revenue Code, 1959 (for

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short, the Code, 1959) before respondent No. 4/Naib Tahsildar, Pathariya seeking demarcation of his land bearing survey No. 167 admeasuring 0.587 hectares. He would further submit that on 14.02.2024, respondent No. 4 passed the order upon preparation of the demarcation of the said land bearing survey No. 167 admeasuring 0.587 hectares of respondent No. 5 and on the same date, the eviction notice against the petitioners was issued. It is also contended that a proceeding under Section 248 of the Code, 1959 for removal of the encroachment was initiated against the petitioners and the order was passed on 14.02.2024. On 14.02.2024 itself, Naib Talsildar, Pathariya issued a notice for ejection against the petitioners and granted time till 29.02.2024; thus, this petition has been filed against the ejection notice dated 14.02.2024.

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On the other hand, learned State counsel would submit that a proceeding under Section 248 of the Code, 1959 was initiated by the Naib Tahsildar, Pathariya and after affording due opportunity of hearing, an order was passed on 14.02.2024. He would further submit that the order for ejection has already been passed by the Naib Tahsildar, and in pursuance of that order, the ejection notice has been issued; thus, the instant petition deserves to be dismissed.

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I have heard learned counsel appearing for the parties and perused the documents placed on the record.

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From a perusal of the impugned ejection notice dated 14.02.2024 (Annexure P/1), it is quite vivid that a proceeding under Section 248 of the Code, 1959 was initiated against the petitioners pertaining to survey No. 167 area of 0.587 hectares. The final order in that proceeding was passed on 14.02.2024 against the petitioners and on the same date, the Naib Tahsildar, Pathariya issued the ejection notice granting them 15 days’ time to remove the construction.

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Sections 44 and 47 of the Code, 1959, deal with appeal and limitation, and the same is reproduced hereinbelow for ready reference:-

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“44. Appeal and appellate authorities. - (1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made thereunder-

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(a) if such order is passed by any Revenue Officer subordinate to

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the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector-to the SubDivisional Officer;

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(b) if such order is passed by the Sub-Divisional Officer, whether or not invested with the powers of the Collector-to the Collector;

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(d) if such order is passed by any Revenue Officer in respect of whom a direction has been issued under sub-section (3) of Section 12 or sub-section (2) of Section 21-to such Revenue Officer as the State Government may direct;

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(e) if such order is passed by a Collector whether exercising the powers of Collector or Settlement Officer, during the currency of the term of settlement-to the [Board of Revenue];

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(f) if such order is passed by a Settlement Officer, whether exercising the powers of Settlement Officer or the powers of a Collector in connection with any settlement operation unless otherwise expressly provided-to the Settlement Commissioner;

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(g) if such order is passed by the [Commissioner or the] Settlement Commissioner-to the Board.

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[(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder-

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(i) by the Sub-Divisional Officer or the Collector to the Commissioner;

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(ii) by the Settlement Officer to the Settlement Commissioner; (iii) by the Commissioner to the Board -

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(a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or

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(b) on any of the following grounds and no other, namely, -

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(i) that the order is contrary to law or usage having the force of law; or

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(ii) that the order has failed to determine some material issue of law or usage having force of law; or

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(iii) that there has been a substantial error or defect in the procedure as prescribed by this Code, which may have produced error or defect in the decision of the case upon merits.]

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47. Limitation of appeals. - No appeal shall lie-

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(a) to the Sub-Divisional Officer or Collector or Settlement Officer or Settlement Commissioner, after the expiration of sixty days from the date of the order to which objection is made; or

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[(b) to the Commissioner after the expiration of sixty days from such date; or.]

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According to the provisions of Section 47(a) of the Code, 1959, the appeal would

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not lie before the SDO(R), after the expiry of 60 days from the date of order.

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From a bare reading of the provisions of Sections 44 and 47 of the Code, 1959, it is apparent that the order passed by the Naib Tahsildar/Tahsildar is appealable before the SDO(R) and this provision also applies to the orders passed under Section 248 of the Code, 1959. A person who is aggrieved with the order passed by the Naib Tahsildar/ Tahsildar under Section 248 of the Code, 1959, may prefer an appeal before the SDO(R), within a period of 60 days. The legislature in its wisdom has granted 45 days to an aggrieved person to prefer an appeal, if such person desires to avoid the order passed against him meaning thereby the opposite party or the State should not and cannot execute the order of dispossession before the expiry of 60 days, otherwise, the provisions of Section 44 (a) of the Code, 1959 would become redundant.

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It is not the first case where this Court has seen such practice by the revenue authorities. The authority concerned has issued the notice for ejection without providing sufficient time as provided under the Code, 1959 which frustrates the legal right of the petitioners to prefer an appeal.

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10. Taking into consideration the above-stated facts and the provisions of Sections 44 and 47 of the Code, 1959, the ejection notice issued by the Naib Tahsildar, Pathariya, dated 14.02.2024 is unsustainable under the law and is hereby quashed.

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11. The petitioners would be at liberty to challenge the order passed by the Naib Tahsildar, Pathariya dated 14.02.2024 by filing an appeal before the SDO(R) according to the provisions of Section 44(a) of the Code, 1959 and for a period of 60 days from the date of order, no coercive steps shall be taken against the petitioners.

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12. In view of the aforesaid discussion, the instant petition is hereby allowed .

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Sd/- (Rakesh Mohan Pandey)

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Judge

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$iddhant

Chandrika Giri v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Chandrika Giri v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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