Trilochan Rathore vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This writ appeal preferred by the appellants/writ petitioners under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 is directed against the impugned order dated 05.01.2022, by which the learned Single Judge has declined to entertain the writ petition challenging the notice dated 17.12.2021 issued by the respondent No.03-Municipal Council Kharsia asking the appellants/writ petitioners to evict their unauthorized encroachment over the government land bearing Khasra No.560/1/ka/1 admeasuring 575 sq.mt., finding no merit.

(2) In this writ appeal, return has been filed by the respondents No.01, 02, 04 & 05 stating that the land in dispute is a government land (abadi land) and Section 187(a) as well as Section 223 of the Chhattisgarh Municipalities Act, 1961 (for short “the Act of 1961”) confers power to the Chief Municipal Officer to protect the land of State Government and to evict the encroachers from the government land. Copy of khasra pansala of Khasra No.560/1/ka/1 has been filed as Annexure-R/1 by the respondents-State alongwith their return, in which the said land has been described as government land. As such, the writ appeal deserves to be dismissed.

(3) The respondent No.03 has also filed its return to the writ appeal, inter-alia, stating that action has been taken against the appellants in accordance with Section 187 read with Section 223 of the Act of 1961. As such, the writ appeal deserves to be dismissed by affirming the order dated 05.01.2022, passed by the learned Single Judge.

(4) Mr. Jeet Patel, learned counsel appearing for the appellants would submit that the learned Single Judge is absolutely unjustified in dismissing the writ petition holding that the Municipal Council, Kharsia has authority and jurisdiction to issue notice dated 17.12.2021 by recording a finding which is perverse to the record. It is also submitted by the learned counsel for the appellants that admittedly, the land in dispute is government land, in which, the appellants are said to have encroached and, therefore, in view of the provisions contained in Section 248 of the Chhattisgarh Land Revenue Code, 1959 (for short “the Code of 1959”), the revenue officer will have the power and jurisdiction to evict the appellants, if any, and by no stretch of imagination, the Municipal Council, Kharsia has power and jurisdiction to direct for removal of the appellants and further, the provision contained in Sections 187 & 223 of the Act of 1961 would have no application in the present case. As such, the impugned order dated 05.01.2022 passed by the learned Single Judge deserves to be set aside.

(5) Per-contra, Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the respondents-State and Mr. Shahil Singh, learned counsel appearing for the respondent No.03-Municipal Council, Kharsia jointly submit that in view of the express provisions contained in Sections 187 and 223 of the Act of 1961 the present writ appeal deserves to be dismissed as the action of the Municipal Council, Kharsia is strictly in accordance with law. Furthermore, learned counsel for the respondent No.03 submits that since the subject encroachment and the land in dispute falls within the municipal area of Municipal Council, Kharsia, therefore, the respondent No.03 is empowered under Section 187 read with Section 223 of the Act of 1961 to take steps and action for removing the illegal construction and illegal encroachment. As such, the writ appeal deserves to be dismissed.

(6) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

(7) A conjoint reading of the notice dated 17.12.2021 (filed as Annexure-P/01 alongwith the writ petition) and the document filed by the respondents-State alongwith their return to the writ appeal i.e. Annexure-R/01 would show that the land bearing Khasra No.560/1/ka/1 admeasuring 0.586 hectares is a government land and in Column-10 of the document Annexure-R/01 the said land has been described as ‘abadi’ land, on which, the two appellants herein are said to have encroached upon 575 sq.mt. by fencing it through barbed wires, which is sought to be removed by the notice dated 17.12.2021, which the appellants had challenged by way of filing writ petition and which was dismissed by order dated 05.01.2022 passed by the learned Single Judge by relying upon the provisions contained in Sections 187 and 223 of the Act of 1961.

(8) At this stage, it would be appropriate to notice Section 248 of the Code of 1959, which reads thus:

“248. Penalty for unauthorisedly taking possession of land. - (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 fine which may extend to [twenty five thousand rupees] and to a further fine which may extend to [two hundred rupees] for 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.”

(9) A careful perusal of the above-quoted provision would show that Section 248 of the Code of 1959 is applicable against a person who unauthorisedly takes or remains in possession of any: (i) unoccupied land, (ii) abadi land, (iii) service land, (iv) any land which has been set apart from any special purpose under Section 237 and (v) upon any land which is property of the government and the Teshildar is the competent revenue authority to initiate proceedings for taking action against the person in possession of the aforesaid land. As such, the present land in dispute being ‘abadi’ land/government land, the Tehsildar is competent authority to initiate proceedings for eviction of the appellants by virtue of Section 248(1) of the Code of 1959 and by virtue of Section 257 (w-i) of the Code of 1959, the said revenue authority would have exclusive jurisdiction with regard to any decision regarding penalty under Section 248 of the Code of 1959, for unathorisedly taking possession of land.

(10) Now, the question would be whether Sections 187 and 223 of the Act of 1961 are applicable in the instant case or not? In order to answer the question, it would be relevant to quote Sections 187 and 223 of the Act of 1961, which read thus:

“187. Notice of new building.- (1) No person shall erect or re-erect or construct or build or commence to erect or construct or build any building without the sanction of the Concil.

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Section 223 - Prohibition of obstruction in streets.-(1) No person shall, except with the written permission of the Chief Municipal Officer granted in this behalf and in accordance with such conditions including the payment of rent or fee, as he may impose either generally or specially in this behalf:-

(a) erect or set up any wall fence, rail post, step, booth or other structure whether fixed or movable or whether of a permanent or temporary nature, or any fixture in or upon any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy any portion of such street channel, drain, well or tank.

(b) deposit upon any street or upon any open channel, drain or well in any street or upon any public place, any stall, chair, bench, box, ladder, bale or other things whatsoever, so as to form an obstruction thereto or encroachment thereon.

(2) Whoever contravenes any provision of sub-section (1) shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both and with further fine which may extend to one hundred rupees for every day on which such contravention continues after the date of first conviction for such offence.

(3) Without prejudice to the action under sub-section (2) the Chief Municipal Officer notwithstanding anything contained in this Act, may after giving such notice as may be prescribed, cause to be removed any obstruction or encroachment as described in clause (a) and (b) of sub-section (1).

(4) Any of the things caused to be removed by the Chief Municipal Officer under sub-section (3) shall, unless the owner thereof turns up to take back such things and pays to the Chief Municipal Officer the charges for the removal and storage of such things, be disposed of by the Chief Municipal Officer by public auction or in such other manner and within such time as the Chief Municipal Officer thinks fit.

(5) The Police Officer shall not investigate into the offence under this section except on a report made in writing in this behalf by the Chief Municipal Officer.”

(11) A careful perusal of Section 187(1) of the Act of 1961 would show that no person shall erect or re-erect or construct or build or commence to erect or re-erect or construct or build any building without the consent/sanction/permission of the Council. Similarly, Section 223 provides for prohibition of obstruction in streets. As such, no power has been conferred under Section 187(1) or under Section 223 of the Act of 1961 to the Municipal Council to initiate proceedings for removal of encroachment on the government land and further it is not the case of the Municipal Council that the land bearing Khasra No.560/1/ka/1 has been transferred to the Municipal Council for management of the said land and, therefore, the Municipal Council has no power and jurisdiction to initiate the aforesaid proceedings and by virtue of Section 248(1) of the Code of 1959 the land in dispute being a government land (abadi land), the competent authority for removal of the encroachment and to impose penalty would be the Tehsildar, having exclusive jurisdiction by virtue of Section 257 (w-i) of the Code of 1959. As such, Sections 187 and 223 of the Act of 1961 are not applicable under the facts and circumstances of the present case and the Municipal Council has acted totally without authority and jurisdiction in issuing the notice dated 17.12.2021 to the appellants for removal of encroachment which is in teeth of the provision contained in Section 248(1) of the Code of 1959.

(12) In that view of the matter, we deem it appropriate to allow this writ appeal. Accordingly, the impugned order dated 05.01.2022 (Annexure-P/01), passed by the learned Single Judge is set aside and consequently, the notice dated 17.12.2022 issued by the respondent No.03 to the appellants is also hereby quashed. However, this will not bar the competent authority/Teshildar to initiate proceedings for removal of the encroachment against the appellants in accordance with law.

(13) This writ appeal is allowed to the extent indicated herein-above.