Nandishwar Mahadeo Mandir Vs State Of Chhattisgarh And Ors.

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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RAVI SHANKAR MANDAVI

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Digitally signed byRAVI SHANKAR MANDAVI Date: 2025.02.13 19:27:57 +0530

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WPC No. 538 of 2014

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Order Reserved on 12.11.2024 Order Delivered on 07.02.2025

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1 - Nandishwar Mahadeo Mandir Through Its Purist Dinesh Kumar Sharma S/o Pitamber Prasad Sharma, /ro Village Nandini Khundani, Tahsil Dhamdha,p.S. Nandini Mines Civil And Revenue Distt. Durg.C G, Chhattisgarh

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--- Petitioner

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versus

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1 - State Of Chhattisgarh And Ors. S/o Through Tts Senior Vice President, V.K. Mitra, 9 Royal Greens, Junwani Road, Bhilai Civil And Revenue Distt. Durg. C.G., Chhattisgarh

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2 - The Collector, Durg, Civil And Revenue Distt. Durg. C.G.

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3 - The Sub Divisiionla Officer Revenue Durg, Civil And Revenue Distt. Durg. C.G.

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4 - J.K. Laxmi Cement Through Tts Senior Vice President, V.K. Mitra, 9 Royal Greens, Junwani Road, Bhilai Civil And Revenue Distt. Durg. C.G.

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--- Respondent(s)

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WPC No. 506 of 2014

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1 - Ajay Kumar Chandrakar (Died & Deleted) As Per Honble Court Order Dated 06/03/2024.

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2 - A. Sunil Chandrakar (Deleted) S/o Late Shri Ajay Chandrakar Aged About 39 Years

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3 - Suryakant (Deleted)

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4 - Omprakash S/o Shri Thakur Ram Aged About 40 Years R/o Village Nandanikhundani, Post Haiwara, Tah And Ps Dhamdha, Distt Durg, CG, District : Durg, Chhattisgarh

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--- Petitioner(s)

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Versus

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1 - State Of Chhattisgarh And Ors. S/o Durg, Distt Durg, CG

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2 - The Collector Durg, Distt Durg, CG

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3 - The Sub Divisional Officer Revenue Durg,. Distt Durg, CG

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4 - The Mining Officer, Durg, Distt Durg, CG

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5 - M/s J.K.Laxmi Cement Ltd, Throuth The Managing Director, M/s J.K.Laxmi Cement Ltd, B-9, Royal Greens Junwani Road, Bhilai, Distt Durg, CG

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--- Respondent(s)

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(Cause-title taken from Case Information System)

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For Petitioner(s)	: Mr. Prateek Shrama and Mr. Vinod Kumar Sharma, Advocates
For State/Respondent(s)	: Mr. S. S. Baghel, Dy. GA
For Respondent No.5	: Mr. N. Naha Roy, Advocate

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Hon'ble Shri Justice Amitendra Kishore Prasad, J

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C A V Order

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Heard Mr. Prateek Shrama and Mr. Vinod Kumar Sharma, learned counsel for the respective petitioners. Also heard Mr. S.

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S. Baghel, Dy. GA for the State/respondent/s and Mr. N. Naha

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Roy, learned counsel for the respondent No.5.

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Both these petitions are decided by this common order as both are arising out of the order dated 16.06.2011 passed by the SDO (Revenue), District Durg (C.G.) as well as order dated 08.09.2011 passed by Collector, District Durg (C.G.).

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The petitioners have preferred these petitions against order of stay by which a lease (patta) of lime stone in total land admeasuring 267.695 hectors situated in Village – Semaria, Ghikudia and Nandani Khundani of Tehsil Dhamdha, District Durg (C.G.) was granted in favour of M/s. J. K. Laxmi Cement Limited/Respondent No.5 in WPC. No.506/2014 and Respondent No.4 in WPC. No.538/2014 respectively. The Collector, District Durg has granted entrance right in total 4246.083 hectors of said land for starting mining works under Section 247(5) of Chhattisgarh Land Revenue Code, 1959, stating that these lands are either belonging to the company (24204.983 hectors) or to respondent State (41.10 hector). As such, the respondent No.5 has filed an application for grant of surface right over the remaining land which were not in their possession. The SDO, (Revenue), Durg registered a case for the same. On 20.04.2011, after recording statements of the representative respondent companies directed the Tahsildar – Dhamdha to submit a detail report after publication of the same in 2 daily newspapers and by affixing copies of the same on some

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conspicuous place. After coming to know about the said notices the petitioners and the other villagers have raised objection as per Section 247-A of Chhattisgarh Land Revenue Code, 1959. While raising their objection that the SDO (Revenue) is not the competent authority for issuing notices. It is the Collector, District Durg who can issue notices. The concerned SDO heard the objections of the parties and after considering the same sent the matter to the Collector, District Durg. The Collector, District Durg directed the Mining Officer to submit his point wise opinion in light of directions issued by the State Government. The concerned Mining Officer has submitted report on 08.09.2011 and on the report, the Collector, District Durg has endorsed that “as mentioned, do the needful”. It is pertinent that vide report dated 16.06.2011, the SDO (Revenue) has decided the case in respect of 15 land owners regarding grant of compensation and has directed the respondent companies, vide order dated 18.11.2011 to deposit the amount of compensation, however nothing was done and ultimately vide order dated 06.02.2014, the SDO (Revenue) directed the petitioners to collect the compensation amount by 22.02.2014 and if the amount of compensation would not be collected it shall be deposited before the Gramin Treasury. When the petitioners enquired about the matter, they came to know that no decision has been taken in their application filed under Section 243(3) of Chhattisgarh Land Revenue Code, 1959.

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It has been submitted by the petitioners that since their objections were not been heard and decided as such, the award passed by the SDO (R), District Durg is nonest in the eyes of law, and same is liable to be dismissed.

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The petitioner in WPC No. 506 of 2014 has prayed for following reliefs :

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“10.1. That this Hon’ble Court may kindly be pleased to set-aside the impugned orders dated 16.06.2011, 08.09.2011 and 06.02.2014 (Annexure P/1) with all consequential proceedings and actions taken in pursuance to the impugned orders.

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10.2. That any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the cost of the petition may be given.”

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The petitioner in WPC No. 538 of 2014 has prayed for following reliefs :

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“10.1 That, the impugned award passed on 1606-2011 and 08-09-2011 by the Respondent No.2 and 3 be quashed/set-aside.

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10.2 That, there are non-application of mind at all levels to serious issue of acquisition of land of private landowners, hence impugned award be quashed in toto.

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10.3 Whenever the land acquisition officer has failed to examine substantive grounds on which land owners had objected to land acquisition resulted in miscarriage of justice, hence the instant land acquisition be quashed.

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10.4 Any appropriate writ, direction or order may also kindly be passed in favour of the petitioner, which this Hon'ble Court deems fit in the

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circumstances of the case.”

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It has been submitted by the petitioners that in order to grant surface right to the petitioners, the procedures have to be followed, when they have filed their objections, their objections were required to be heard and decided, however, no such procedures was followed. The SDO (Revenue) has no authority. Their objection was to the effect that if the surface right would be given to the respondent company the entire adjoining land would be affected and their land will become useless and the petitioners will further lose their right of property as shown under article 300A of the Constitution of India. It was awarded by the respondent SDO (Revenue), behind the back of the petitioners is inadequate, improper, arbitrary and unreasonable. The compensation was not calculated with the Model Rehabilitation Rules, 2007 and the provisions of Land Acquisition Act. The SDO (Revenue) was having no authority to grant surface right and as such the entire procedure followed by the authorities are illegal, accordingly the impugned orders are liable to be set-aside.

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On the other hand, learned State counsel as well as respondent No.5/No.4 has submitted that due procedures were followed while granting lease to the respondent No.5/No.4, most of the land are belonging to respondent No.5/No.4, whereas, some portions are stayed, for which applications were filed for grant of surface right in which report was called from the Revenue

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Officers and after following due procedure, the respondent No.5/No.4 was granted surface right.

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On the one hand the petitioners are raising objections regarding procedure followed by the Collector and SDO and on the other hand, they are also stating that the compensation awarded is not adequate.

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Both the pleadings are contradictory and destructive. The land was belonging to the State and the State authorities after following due procedure of law have granted lease in respect of surface right for mining activities. The petitioners were failed to demonstrate and illustrate any prejudice caused to them while granting lease of the said land to the respondent No.5/No.4.

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Upon receipt of the objections, notices were issued and directed to serve upon petitioners, however, the said notices were returned with an endorsement that they are out of station. Report was called by the concerned mining officer who has reported that it can be granted to respondent No.5/No.4. The petitioners have failed to raise any material to show that lease cannot be granted.

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I have heard learned counsel for the parties and also peruse the record with utmost care and circumspection. From the perusal of the pleadings of the parties, it seems that when the respondent No.5/No.4 has applied for surface lease of the subject land belonging to the State, due procedure as envisaged under Section 347 of the Land Revenue Code was followed, The SDO

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(R) and The Collector has considered each and every aspect in respect of grant of mining lease to the respondent No.5/No.4. Report was called from the concerned Revenue officers and thereafter notices were also issued, however the petitioners were not available in their respective houses, as such notices were returned. Most of the concerned persons who have raised objections, their objections have been redressed. The persons whose land were acquired, they have been given adequate compensation, even though if they are not satisfied with the compensation awarded to them, they are having remedy seeking proper compensation by filing appropriate application before the Collector.

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On one hand, the petitioners have challenged the competency of the SDO (R) and on the other hand they are also saying that the compensation is not adequate.

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Since, mining lease has already been granted and except the petitioners, all the other persons are satisfied. In such condition only on the basis of objections raised by some persons, the mining lease cannot be cancelled, qua to the land belonging to petitioners. The mining lease was granted way back in the year 2011 and as such by the efflux of time, it cannot be cancelled for small portion of land belonging to the petitioners and the same cannot be returned.

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Relying in the matter of Hemanand Patel & Another v. State of

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Chhattisgarh & Others, Writ Appeal bearing WA No.34/2020 , this Court observed the following :

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Question involved in these appeals is whether in absence of personal notice under Section 247 (3) of the Code of 1959 the entire proceedings for grant of surface right will be vitiated?

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A bare perusal of sub-sections (1) & (2) of Section 247 of the Code of 1959 would reveal that the State Government is having all the powers for proper enjoyment of rights to all minerals, mines and quarries and the right to mines and quarries includes right to access to the land for the purpose of mining. Section 247 (3) of the Code of 1959 envisages the power of delegation of right over the mines and minerals of the State Government to other's subject to conditions and reservations and assigned the rights. Under the proviso to sub-section (3) it is mentioned that before delegation of rights, notice to be duly served on all persons having right in the land affected. Sub-section (4) of Section 247 of the Code of 1959 envisages for granting compensation to the persons whose rights have been infringed in exercising the right referred in sub-sections (1), (2) & (3) of Section 247 of the Code of 1959. It is not in dispute that the proceedings were drawn by respondent SDO on 2.5.2011 for grant of surface right and fixation of compensation. Respondent SDO in its order has specifically mentioned for issuance of proclamation for the purpose of fixation of compensation and the order was passed fixing amount of compensation of land, trees standing thereon etc. at Rs.34,38,15,300/on 19.4.2012 and after deposit of the said amount, the surface right has been granted to respondent Jayaswal Neco Industries, who also started its activities.

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Perusal of Section 247 of the Code of 1959 would show that at first it clarifies that the Government is title holder of all minerals and it vests all powers for its enjoyment including right to access the land for the purpose of mining. The Government can assign its right to any person and delegate such powers subject to condition. If the right of owner of land surface is infringed, he is entitled for compensation under Section 247 (4). The purpose of Section 247 (3) is to be understood with conjoint reading of the provisions under sub-section (4) of Section 247 of the Code of 1959. Once the government assigned its right to any person and delegates such power, then the owner of land cannot object assignment of its right to that person but for claiming proper compensation. Under Section 247 (5) of the Code of 1959 pre-conditions of entering or occupying the surface of land are provided protecting interest of the persons having rights on such land. For entering and occupying the surface of the land assigned to any person, it is obligatory upon the government to determine the compensation and tender to such person. Meaning thereby, after determining the compensation the assignee of the rights by the government has to deposit the same for its disbursement. The provisions of the Statute are to read as a whole and interpretation is to be purposive so that the object of very provision under the Statute is achieved. The Sub-Divisional Officer while drawing the proceedings for fixation of compensation had issued proclamation to the concerned villagers, Gram Sabha was convened, proceedings were recorded, villagers including one of appellants Chaitram was present, details of land were called from the Patwari (Revenue Officer) mentioning the purpose of computing compensation, as

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appearing from Annexure P-1. The submission of learned counsel for appellants appears to be correct that personal notice was not issued as is evident from the proceedings of the SDO. In the above facts of the case and the provisions, whether in absence of notice under Section 247 (3) of the Code of 1959 the entire proceedings can be declared to be vitiated, particularly when from the provision itself it is appearing that purpose of notice is to fix the compensation only.

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In case of May George vs. Special Tehsildar & Ors. reported in (2010) 13 SCC 98 , the Hon'ble Supreme Court while dealing with proceedings under the Land Acquisition Act has considered the provisions of Section 9 with regard to service of notice to persons affected for raising claim and objection and held as under:-

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“13. Section 9 (3) of the Act reads as under :- "The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to s reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate"

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Section 9 (3) of the Act provides for an opportunity to the "person interested" to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the Act. Therefore, scheme of the Act is such that it does not cause any prejudicial consequence in case the notice under Section 9 (3) is not served upon the person interested.

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While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.

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In Dattatraya Moreshwar Vs. State of Bombay, this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below: (AIR p. 185, para 7)-

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"7.....It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done."

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The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether noncompliance of the provision could render entire

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proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contingency of the non-compliance of the provisions and as to whether the noncompliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.

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In fact, the land vest in the State free from all encumbrances when possession is taken under section 16 of the Act. Once land is vested in the State, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 Notice had not been served upon the person- interested, he could still claim the compensation and ask for making the reference under section 18 of the Act. There is nothing in the Act to show that non-compliance thereof will be fatal or visit any penalty.”

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The ground raised in these appeals is somewhat identical to what has been considered by Hon'ble Supreme Court in case of May George (supra). In the case at hand also the ground is 'non-service of notice in person'. Under the Code of 1959 there is forum prescribed for raising the dispute challenging the quantum of compensation if dissatisfied. Even under the Act of 1957 and the Rules of 1960 the occupier or owner of surface of land is having the right for compensation from the person in whose favour license, lease or right is granted before they enter into the land allotted and start mining operations over it.

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In view of above, in the opinion of this Court the submission of learned counsel for petitioners/appellants that in absence of proper personal notice under Section 247 (3) of the Code of 1959, grant of surface rights is to be quashed is not sustainable and is hereby repelled.”

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Only for some objections raised by the persons for small piece of land, even though, the notices were not served to them, the lease granted or the acquisition done cannot be cancelled.

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In light of aforesaid aspects of the matter, I do not consider anything in favour of the petitioner and in my considered opinion the petitioners have failed to submit any reasonable ground in order to interfere with the order impugned passed by the SDO (R) and Collector, these petitions are liable to be dismissed.

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Accordingly, all these petitions fail and are dismissed .

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Sd/-

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(Amitendra Kishore Prasad) Judge

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Ravi Mandavi

Nandishwar Mahadeo Mandir v. State Of Chhattisgarh And Ors.

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Nandishwar Mahadeo Mandir v. State Of Chhattisgarh And Ors.

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