Shrimati Rizwana Siddiqui Vs State of Chhattisgarh

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2025:CGHC:8145

NAFR

RAHUL JHA

Digitally signed by RAHUL JHA Date: 2025.02.17 17:48:25 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPC No. 140 of 2022

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1 - Shrimati Rizwana Siddiqui W/o Abdul Aziz Aged About 75 Years R/o House No. Hig- 09, Jainam Vihar Colony, Lalpur , Raipur , District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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Petitioner(s)

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versus

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1 - State Of Chhattisgarh Through The Secretary, Department Of Urban Administration And Development Mahanadi Bhawan, Atal Nagar , District Raipur Chhattisgarh.

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2 - Committee For Settlement Of Free Hold And Encroachment Raipur , District Raipur Chhattisgarh.

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3 - Collector Raipur District Raipur Chhattisgarh.

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4 - Nazul Officer Raipur , District Raipur Chhattisgarh.

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5 - Tehsildar Raipur District Raipur Chhattisgarh.

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6 - Jhilmaliya Bagh S/o Nandu Bagh R/o Makan No. 7/343, 7/348, Madarsa Road, Baijnath Para , Ward No. 41, Maulana Rauf Ward , Raipur District Raipur Chhattisgarh.

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Respondent(s)

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For Petitioner(s) : Mr. Shobhit Koshta, Advocate For Resp No. 1 to 5 : Mr. Santosh Bharat, PL For Resp. No. 6 : Ms. Pragya Mishra, Adv. on behalf of Mr. Mateen Siddique,

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Adv.

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(HON’BLE SHRI JUSTICE BIBHU DATTA GURU)

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Order on Board

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17/02/2025

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The petitioner has filed the instant petition against the order passed by the Committee/respondent No. 2 dated 23/11/2021, whereby order of

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regularization of encroachment have been passed in favour of private respondent for land bearing survey No.675 admeasuring 163 sq.ft. each where huts/houses were constructed and are still in existence.

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The facts of the present case are that the petitioner is the owner of land having survey No. 675/1 total area admeasuring 2629 sq. ft. situated at Baijnathpara, Ward No. 41, Tehsil and District Raipur. The Municipal Numbers of the plots are 7/343 NS 7/348. The aforestated plot was purchased by the petitioner through a registered sale deed dated 01.03.1982 from the legal heirs of Mustafa Khan. There were 12 huts/houses and they were given on rent to private respondent in the year 1965. Admittedly, respondent No. 6 was tenant of the petitioner. Mustafa Khan was paying municipal tax regularly. He died on 19.04.1963. A legal notice was issued to the tenants/private respondent for payment of rent on 20.07.2017 and thereafter application for eviction was filed by the petitioner on 27.12.2017. Earlier, Civil Suit No. 193-A/2002 was filed by the petitioner against one of the tenant namely, Banshi Jagat for eviction from rented accommodation and the same was decreed vide judgment and decree dated 25.02.2004. Thereafter, applications were moved by the petitioner for eviction before the Rent Control Authority on 27.12.2017 against the remaining tenants including Banshi Jagat and the matter is still pending before the authority. On 19.03.2018, private respondent moved applications before the Nazul Officer for the grant of the lease. The petitioner raised an objection before the Nazul Officer on the ground that the land in question belongs to the petitioner as it was purchased through a registered sale deed. Thereafter, the petitioner filed a civil suit for declaration of title and permanent injunction along with an application under Order 39 Rules 1 and 2 of CPC against private respondents. The reply was filed to the interim application and vide order dated 06.03.2021, the application moved by the petitioner for temporary injunction was allowed and the defendant(s) of that case were restrained

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from alienating the property or creating third party interest. The matter for grant of lease which was pending before the Nazul Officer, Raipur was referred to a Committee of Five Members under the freehold scheme. Private respondents also claimed regularization of encroachment over government land along with the lease. The petitioner raised an objection in those proceedings and produced a copy of the order of temporary injunction granted in her favour dated 06.03.2021. The Committee/respondent No. 2 vide order dated 23.11.2021 allowed the applications moved by private respondent herein along with others and passed an order for the grant of Bhumiswami rights on payment of stamp duty as per Policy dated 11.09.2019. The petitioner has challenged the orders passed by the Committee/respondent No. 2 in these petitions.

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Mr. Shobhit Koshta, learned counsel appearing for the petitioner would submit that the petitioner is the owner of survey No. 675/1 as the same was purchased through a registered sale deed dated 01.03.1982. He would further submit that private respondent herein along with others were tenants of the petitioner and earlier an eviction suit was filed against one Banshi Jagat and the same was decreed vide judgment and decree dated 25.02.2004. He would also submit that findings were recorded by the learned Civil Court that the petitioner is the owner of the property and she has the right over the property. He would argue that thereafter the petitioner preferred an application before the Rent Control Authority for eviction against all the tenants/private respondents and the same is pending. He would further argue that private respondent herein along with others were well aware of the status of the petitioner even though they moved applications for the grant of lease and regularization of encroachment according to the Policy dated 11.09.2019. He would further argue that a civil suit for declaration of title and permanent injunction was filed and vide order dated 06.03.2021 temporary injunction was granted in favour of the petitioner. He would also argue that in

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the proceeding pending before the Committee/respondent No. 2, the petitioner raised an objection and also produced a copy of the order of temporary injunction passed in the civil suit, but the same was discarded by the Committee only on the ground that in that civil suit State is not a party. He would contend that it is also observed by the Committee that Mustafa Khan had no right over the property and the land in question is Abadi land. He would further contend that there is a specific finding recorded by the learned Civil Court that there is no document to presume that the land in question is Abadi land. He would also contend that even in the present petition, the respondents have not adduced any document to establish that survey No. 675/1 is government land or abadi land. He would pray to set aside the order passed by the Committee/respondent No. 2 in favour of private respondents.

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On the other hand, Ms. Pragya Mishra, learned counsel appearing for respondent No. 6 and Mr. Santosh Bharat, learned Panel lawyer appearing for the State/respondents No. 1 to 5 would oppose the submissions made by Mr. Shobhit Koshta. They would submit that the civil suit filed by the petitioner seeking the declaration of title and permanent injunction is pending consideration before the competent Civil Court and the fact was within the knowledge of the petitioner that the applications have been moved by private respondent herein along with others for grant of the lease. It is argued that for the same cause of action, two parallel proceedings are not permissible. It is further argued that the petitioner has established that Mustafa Khan had no valid right over the property and in the absence of any right; he could not have made a valid transfer in favour of the petitioner. It is also argued that the forefathers of private respondent herein along with others were residing in the huts/houses, therefore, lease deeds have been granted in their favour. It is contended that no document showing relation of landlord and tenants has been filed in the present petition and in the absence of such document, it cannot be presumed that private respondent herein along with others are

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tenants of the petitioner. It is further contended that mere payment of property tax would not confer any right in favour of the petitioner. It is also contended that in the pending civil suit, an application under Order 1 Rule 10 of CPC was moved by the private respondents, but the same was seriously objected to by the petitioner and the said application was rejected. It is stated that the application under Order 1 Rule 10 of CPC was moved prior to 06.03.2021, the date on which the order of temporary injunction was passed. It is also stated that the order impugned was passed according to the provisions of the Revenue Book Circular and the same is appealable before the Divisional Commissioner. It is also submitted that when an efficacious alternative remedy is available in favour of the petitioner, these petitions are not maintainable.

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Learned counsel for respondent No.6 would vehemently argue that the title of the petitioner is in the cloud and the same has not been decided by the Civil Court, therefore, the petitioner has no right over the property in question. He would further submit that the Committee after following the due process of law granted lease and regularized the encroachment of private respondents and pursuant to the orders passed by the Committee, private respondents have deposited a huge amount according to the Policy dated 11.09.2019.

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

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Admittedly, the petitioner purchased the land in question through a registered sale deed dated 01.03.1982 from the legal heirs of Mustafa Khan. She has shown the private respondents her tenants in these petitions. A suit for eviction was filed by the petitioner i.e. Civil Suit No. 193-A/2002 against one of the tenants namely, Banshi Jagat seeking a decree of eviction and the same was decreed vide judgment and decree dated 25.02.2004. The petitioner also moved an application for eviction before the Rent Control Authority against private respondent herein along with others and the same is

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pending before the Rent Control Authority. On 19.03.2018, the private respondent herein along with others moved applications for the grant of the lease on the ground that they are in possession of some part of survey No. 675/1 where huts/houses are situated. On 11.09.2019, a policy was floated by the State Government for the regularization of encroachment and thereafter, the private respondent herein along with others approached the authority for regularization of encroachment showing the subject land as Nazul land. When the petitioner came to know about the subsequent development, she filed a civil suit for declaration of title and permanent injunction before the competent Civil Court along with the application for temporary injunction. The private respondent herein along with others are defendants in that civil suit. Though the application was moved by the private respondent herein along with others under Order 1 Rule 10 of CPC to implead the State as the party-defendant, but same was seriously objected to by the petitioner and the said application was rejected. Thereafter, the learned Civil Court vide order dated 06.03.2021 allowed the application moved by the petitioner under Order 39 Rules 1 and 2 of CPC and restrained the defendants from alienating the property and creating third-party interest. The cases of the private respondent herein along with others for grant of lease and regularization of encroachment were referred to a Committee i.e. respondent No. 2. The petitioner approached the Committee along with a copy of the order dated 06.03.2021 passed by the learned Civil Court whereby her application for temporary injunction was allowed. The Committee vide order dated 23.11.2021 allowed the applications moved by the private respondent herein along with others for regularization of encroachment and also directed them to deposit requisite stamp duty according to guideline. The Committee/respondent No. 2 discarded the documents submitted by the petitioner on the ground that the State was not a party in the pending civil suit.

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In the order dated 06.03.2021 whereby application moved by the petitioner under Order 39 Rules 1 and 2 of CPC was allowed, a specific finding was recorded by the learned Civil Court that the petitioner has right over the property in question and the opposite party could not adduce any document to demonstrate that the land in question is government land. It is not in dispute that the Committee has already passed the orders regularizing the illegal encroachment of the private respondent herein along with others and at the same time, a civil suit instituted by the petitioner for declaration of title and permanent injunction is pending before the Civil Court. The private respondent herein along with others could not adduce any document to establish that the land in question is the government land. Their stand is that survey No. 675/1 is Nazul land and the petitioner could not produce any document to show that prior to 1959 it remained in possession of Mustafa Khan or it was ever recorded in the name of Mustafa Khan.

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Taking into consideration the above-discussed facts, particularly that the civil suit is pending before the competent Court, the present petition is hereby disposed of.

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10.The fate of the order passed by the Committee/respondent No. 2 for regularizing the illegal encroachment in favour of the private respondent herein along with others shall be subject to the outcome of the civil suit. The private respondents are poor persons and as per averments, they are residing in small huts/houses since long, therefore, the parties are directed to maintain status quo as it exists today, till the final disposal of the civil suit pending before the competent civil Court. The private respondents are directed to obey the order of temporary injunction passed by the Civil Court.

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11.In the pending civil proceeding, the State is a necessary party as the State has to establish the nature of the subject land; therefore, the petitioner is directed to move an appropriate application to implead the State as a defendant in the pending civil suit.

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