Shakuntala vs State Of Chhattisgarh

1) By way of this petition, the petitioner has sought the following relief:-

“10.1 That, this Hon’ble Court may kindly be pleased to set-aside/quash the notice of eviction dated 07.03.2024 passed by respondent No.5/Tahsildar Malkharoda, District Sakti, Chhattisgarh.

10.2 That, this Hon’ble court may kindly be pleased to direct the respondent authorities not evict the petitioner from her land.

10.3 Any other relief may also be granted by this Hon’ble court in facts and circumstances of the case.”

2) The petitioner has filed this petition against ejection notice dated 07.03.2024, issued by the Tahsildar, Malkharoda, District Sakti, whereby notice of ejection has been issued against the petitioner from a Government Land, bearing survey No. 624/1 admeasuring 300 sq meter out of 4.654 hectare, situated at village Malkharoda, Patwari Circle No.7, District Sakti.

3) Facts of the present case, are that the petitioner is a resident of village Malkharoda, he is in unauthorized occupation of a Government Land admeasuring 300 sq meter, out of 4.654 hectare of survey No.624/1, situated at village Malkharoda, Patwari Circle No.7. Some other villagers have also encroached over the Government land bearing survey No.624/1, and lease deeds have been issued in their favour by the competent authorities. The petitioner also moved an application for grant of lease before the Tahsildar, Malkharoda and same was dismissed. The petitioner preferred an appeal before the Sub Divisional Officer (Revenue), Malkharoda [for short, the SDO(R)], and same was dismissed vide order dated 13.01.2024. The petitioner has preferred an appeal on 20.02.2024 before the Commissioner, Divison Bilaspur, against the order dated 13.01.2024 and the same is pending consideration before the Commissioner, Divison Bilaspur and next date of hearing before the Commissioner is 02.04.2024.

4) It appears that a proceeding under Section 248 of the Chhattisgarh Land Revenue Code, 1959 (for short, the Code, 1959) for removal of the encroachment was initiated against the petitioner and the order has been passed on 07.03.2024. On 07.03.2024 itself, the Talsildar, Malkharoda issued a notice for ejection against the petitioner and granted time till 10.03.2024; thus, this petition has been filed against the ejection notice dated 07.03.2024.

5) Learned counsel for the petitioner would submit that an application for grant of lease was moved before the competent authority/Tahsildar and the same was dismissed. First appeal preferred by the petitioner before the SDO(R) was also dismissed vide order dated 13.01.2024. He would further submit that against that order second appeal has been preferred and same is pending before the Commissioner, Division Bilaspur, and the next date of hearing is 02.04.2024. He would fairly submit that a proceeding under Section 248 of the Code, 1959 was initiated by the Tahsildar against the petitioner for unauthorised possession over Government Land and order has been passed on 07.03.2024 for removal of encroachment. He would also submit that without affording opportunity of hearing to prefer an appeal, on same date i.e. 07.03.2024, the notice for ejection has been issued and the petitioner has been granted only 3 days time to remove the encroachment. He would argue that the petitioner has already constructed a dwelling house over 300 sq meter of land of survey No. 624/1 which is only residential hosue of the petitioner and his family, and if same is demolished the petitioner and his family would be shelter less.

6) On the other hand, learned State counsel would submit that no lease has been granted in favour of the petitioner yet by the competent authority. A proceeding under Section 248 of the Code, 1959 was initiated by the Tahsildar & after affording due opportunity of hearing, an order was passed on 07.03.2024. He would also submit that the petitioner is in unauthorized possession of a government land and he has no vested right over it. He would further submit that order for ejection has already been passed by the Tahsildar, and in pursuance of that order, the ejection notice has been issued; thus, the instant petition deserves to be dismissed.

7) I have heard learned counsel for the parties and perused the documents.

8) From a perusal of the documents, it appears that on 23.08.2021 one Ramprasad, s/o Bahoran was granted lease deed of 0.01 acre from survey No. 624/1 vide order dated 23.08.2021. The application of the petitioner for grant of lease was rejected by the Tahsildar, Malkharoda and the first appeal which was preferred before the SDO(R), Malkharoda, was also dismissed. A Second appeal against the orders passed by the Tahsildar and SDO(R) are pending before the Commissioner, Division Bilaspur and according to the Annexure P/4, the same was preferred on 20.02.2024.

9) From the perusal of impugned notice dated 07.03.2024 (Annexure P/1), which is an ejection notice, it is quite vivid that a proceeding under Section 248 of the Code, 1959 was initiated against the petitioner pertaining to survey No. 624/1, area 300 sq meter where the house of the petitioner is situated. A final order in that proceeding has been passed on 07.03.2024 against the petitioner and on the same date, the Tahsildar Malkharoda issued ejection notice, granting him 3 days time to remove the super structure.

10) Sections 44 and 47 of the Code, 1959, deals with appeal and limitation, and the same are reproduced hereinbelow for ready reference:-

“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-

(a) if such order is passed by any Revenue Officer subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector-to the Sub-Divisional Officer;

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

(c) if such order is passed by any Revenue Officer subordinate to the Settlement Officer-to the Settlement Officer;

(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;

(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];

(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;

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

[(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-

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

(ii) by the Settlement Officer to the Settlement Commissioner;

(iii) by the Commissioner to the Board -

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

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

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

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

(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.]

Limitation of appeals. - No appeal shall lie-

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

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

(c) to the Board, after the expiration of ninety days from such date..”

11) According to the provisions of Section 47(a) of the Code, 1959, the appeal would not lie before the SDO(R), after expiry of 45 days from the date of order.

12) From bare reading of the provisions of Sections 44 and 47 of the Code, 1959, it is apparent that order passed by the 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 by the order passed by the Tahsildar under Section 248 of the Code, 1959, may prefer an appeal before the SDO(R), within a period of 45 days. The legislature in its discretion has granted 45 days time 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 45 days, otherwise, the provisions of Section 44 (a) of the Code, 1959 would become redundant.

13) It is not a 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 given under the legislature to prefer an appeal, which frustrates the legal right of the petitioner to prefer an appeal.

14) The Principal Secretary (Revenue), State of Chhattisgarh is directed to look into the matter and issue appropriate guidelines in this regard. Further, no order can be executed before expiry of limitation period provided by the legislature to prefer an appeal.

15) Taking into consideration the above stated facts and provisions of the Sections 44 and 47 of the Code, 1959, the ejection notice issued by the Tahsildar Malkharoda, dated 07.03.2024 is not sustainable under the law and is hereby quashed.

16) The petitioner would be at liberty to to challenge the order passed by the Tahsildar dated 07.03.2024 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 45 days from the date of order, no coercive steps shall be taken against the petitioner.

17) In view of the above discussion, the instant petition is hereby allowed. Pending IAs are also disposed of.

18) Copy of this order be communicated to the Principal Secretary (Revenue), State of Chhattisgarh, for intimation and proper action.