Dismissed¶¶32

Someshwar Kosariya v. State of Chhattisgarh

Chhattisgarh HC21 Jan 2024WPC/274/2024

Case brief

AI extract

What is this about?

Keywords: WPC No. 274 of 2024; High Court of Chhattisgarh, Bilaspur; Rakesh Mohan Pandey, J.; Section 248 CG Land Revenue Code 1959; penalty for unauthorisedly taking possession of land; ejectment by Tahsildar; encroachment on government land; Section 244 disposal of Abadi sites; Gram Panchayat powers; complaint withdrawal; fine Rs. 1,000/-; compensation claim; Article 300 A; Vidya Devi v. State of Himachal Pradesh (2020) 2 SCC 569 distinguished; writ petition dismissed; no cost.

What did the court decide?

Section 244 of the Code deals only with the disposal of Abadi sites and contains no provision for removal of encroachment. ¶¶25

Someshwar Kosariya Vs State of Chhattisgarh — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶¶32

Issue for consideration

Whether the Tahsildar, rather than the Gram Panchayat under Section 244 of the Code, was competent to initiate proceedings under Section 248 of the CG Land Revenue Code, 1959 and order removal of the petitioner's construction on government land. +1 more

¶¶19

Court's answer

Section 244 of the Code deals only with the disposal of Abadi sites and contains no provision for removal of encroachment.

¶¶25

Ratio / Principle

Section 248 of the Code specifically penalises unauthorised taking of possession of land and empowers the Tahsildar to initiate proceedings suo motu or on a complaint where government land is encroached upon.

¶¶30

Key takeaways

Since the petitioner encroached on government land and it is not a case of disposal of Abadi sites, no action by the Gram Panchayat was required, and the Tahsildar was justified in taking cognizance and passing the impugned order.ratio¶¶31
The present case is not one of land acquisition; the petitioner encroached upon Government land, so the compensation principle invoked from Vidya Devi does not apply and no interference is called for.ratio¶¶32

Detailed headnote1 paragraphs

Writ petition dismissed. The petitioner, having raised construction on government land (survey no. 110, area 0.029 hectares, village Lakhagarh, Tahsil Pithoura, District Mahasamund), challenged the Tahsildar's order dated 06.12.2023 initiating a proceeding under Section 248 of the CG Land Revenue Code, 1959 for removal of the construction and imposing a fine of Rs. 1,000/-. He contended that power lay with the Gram Panchayat under Section 244 of the Code and claimed compensation relying on Vidya Devi v. State of Himachal Pradesh, 2020 (2) SCC 569. Held: (i) Section 244 deals only with disposal of Abadi sites and not with removal of encroachment; (ii) Section 248 empowers the Tahsildar to act suo motu or on complaint where government land is encroached upon, so the Tahsildar rightly took cognizance even though the Patwari reported that the complainant had withdrawn his complaint; (iii) as the petitioner encroached on Government land, the case is not one of land acquisition and the Vidya Devi compensation principle is inapplicable. Petition dismissed with no order as to costs. Bench: Hon'ble Mr. Justice Rakesh Mohan Pandey.

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

WPC No. 274 of 2024

¶5

Someshwar Kosariya S/o Mahadev Aged About 42 Years R/o Ward No. 3, Village Lakhagarh, Post And Tahsil Pithora, District Mahasamund (C.G.).

¶6

---- Petitioner

¶7

Versus

¶8

1. State Of Chhattisgarh Through Secretary, Revenue Department, Atal Nagar, Nava Raipur, Distt. Raipur (C.G.).

¶9

2. Collector Mahasamund District Mahasamund (C.G.).

¶10

3. The Tahsildar Pithora, District Mahasamund (C.G.).

¶11

4. Gram Panchayat Pithora Village Lakhagarh, Tahsil Pithora, District Mahasamund (C.G.).

¶12

---- Respondents

¶13

(Cause Title taken from Case Information System)

¶14

For Petitioner : Mr. Hanuman Prasad Agrawal, Advocate For Res./State : Mr. Dilman Rati Minj, Government Advocate

¶15

Hon’ble Mr. Justice Rakesh Mohan Pandey Order on Board

¶16

22.01.2024

¶17

1. By way of this petition, the petitioner has challenged the order dated 06.12.2023 passed by the Tahsildar, Pithoura, District Mahasamund (C.G.) whereby a proceeding under Section 248 of the CG Land Revenue Code, 1959 (henceforth “the Code”) has been initiated for removal of construction made by the petitioner and a fine of Rs. 1,000/- has also been imposed against the petitioner.

¶18

¶19

2. Learned counsel for the petitioner would submit that undisputedly the petitioner has raised construction over the government land and a private person namely, Ramesh Shrivastava made a complaint before the Tahsildar. He would further submit that based on the said complaint, cognizance has been taken by the Tahsildar and the impugned order has been passed. He would also submit that Patwari has given a report to the Tahsildar to the effect that the said Ramesh Shrivastava has withdrawn his complaint, even though the Tahsildar has passed the aforesaid impugned order. He would further contend that the power to take action against the petitioner is vested with the Gram Panchayat in view of the provisions contained in Section 244 of the Code, whereas, in the instant case, the Tahsildar has exercised such power under Section 244 of the Code, which is not permissible in law. He would also contend that the petitioner is also entitled to get compensation, as certain construction was raised by him over the government land. In support thereof, reliance is placed on the judgment rendered by the Supreme Court in the matter of Vidya Devi v. State of Himachal Pradesh reported in 2020 (2) SCC 569.

¶20

3. On the other hand, Mr. Minj, learned State counsel opposes and submits that the petitioner has efÏcacious alternative remedy to prefer an appeal against the order of Tahsildar before the Sub-Divisional OfÏcer (Revenue). He would further submit that according to provisions contained in Section 248 of the Code, the Tahsildar is empowered to initiate a proceeding and pass appropriate orders.

¶21

4. Heard learned counsel for the parties and perused the documents placed on record.

¶22

5. From a perusal of the documents it appears that the petitioner has raised construction over the government land bearing survey No. 110, area 0.029 hectares, out of a total of 0.600 hectares situated at village Lakhagarh, Patwari Circle No. 10, Tahsil Pithoura, District Mahasamund. A complaint was made by Ramesh Shrivastava before the Tahsildar and the Tahsildar in the exercise of

¶23

¶24

power given under Section 248 of the Code passed the order for removal of construction made by the petitioner on the government land and also imposed a fine of Rs.1,000/- against the petitioner.

¶25

6. Section 244 of the Code, as argued by the learned counsel for the petitioner deals with the disposal of Abadi sites. It says that subject to rules made in this behalf, the Gram Panchayat or where a Gram Panchayat has not been constituted, the Tahsildar shall dispose of the sites in the Abadi area. From a bare perusal of Section 244 of the Code, it is quite vivid that it deals with the disposal of Abadi sites only and there is no mention of the removal of encroachment.

¶26

7. Section 248 of the Code specifically deals with penalties for unauthorizedly taking possession of land. It reads thus:-

¶27

“ 248. Penalty for unauthorisedly taking possession of land.

¶28

(1) Any person who unauthorisedly takes or remains in possession of any unoccupied land, abadi, service land or any other which has been set apart for any special purpose under section 237 or upon any land which is the property of Government [,or any authority, body corporate, or institution constituted or established under any State enactment] may be summarily ejected by order of the Tahsildar and any crop which may be standing on the land and any building or other work which he may have constructed thereon, if not removed by him within such time as the Tahsildar may fix shall be liable to forfeiture. Any property so forfeited shall be disposed of as the Tahsildar may direct and the cost of removal of any crop, building or other work and of all works necessary, to restore the land to its original condition shall be recoverable as an arrear of land revenue from him. Such person shall also be liable at the discretion of the Tahsildar to pay the rent of the land for the period of unauthorised occupation at twice the rate admissible for such land in locality and to a find which may extend to [ twenty perceteum of the market valude of such encroached land]/ [twenty five thousand rupees] and to a further fine which may extend to [five hundred rupees in non urban area and two thousand rupees in urban area] [ two hundred rupees] or every day on which such unauthorised occupation or possession continues after the date of first ejectment. The Tahsildar may apply the whole or any part of the fine to compensate persons, who may in his opinion have suffered loss or injury from the encroachment;”……………..

¶29

¶30

8. From going through Section 248 of the Code, it is quite vivid that the Tahsildar may initiate proceedings suo motu or on a complaint if government land is encroached upon by any person.

¶31

9. In the present case, the petitioner has encroached over the government land and there was no requirement for the Gram Panchayat to take any action, as it is not a case of disposal of Abadi sites and the Tahsildar is absolutely justified in taking cognizance and passing the aforesaid order.

¶32

10. As far as the grant of compensation to the petitioner is concerned, in the matter of Vidya Devi (supra), it was observed by the Hon’ble Supreme Court that the State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution of India. Present is not a case of land acquisition rather the petitioner has encroached upon the Government land therefore, in the opinion of this Court; no case is made out calling for any interference. Accordingly, the instant petition fails and is hereby dismissed . No cost.

¶33

Sd/-

¶34

¶35

(Rakesh Mohan Pandey)

¶36

Judge

¶37

amita

Someshwar Kosariya v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Someshwar Kosariya v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Aman Agrawal Vs State of Chhattisgarh

Chintaram Sahu Vs State of Chhattisgarh

Kamlesh Sahu Vs State of Chhattisgarh

D.M. Sahu Vs State of Chhattisgarh

Legend Distilieries Pvt. Ltd. Vs State of Chhattisgarh

Gulapi Bai Vs State of Chhattisgarh