Bemetara, Chhattisgarh v. 1- State of Chhattisgarh Through Secretary, Revenue Department, Mantralaya, Chhattisgarh. Mahanadi Naya Raipur, Bhawan
Case Details
-1- Digitally signed by NADIM MOHLE 2025:CGHC:3638 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 533 of 2019 1 - Naresh Nirmalkar S/o Ramlal Nirmalkar Aged About 54 Years R/o Village Ninava, Thana Chhattisgarh. District Bemetara, Tahsil and 2 - Baran Singh S/o Suklal Verma Aged About 50 Years R/o Village Ninava, Thana Tahsil and District Bemetara, Chhattisgarh., District : Bemetara, Chhattisgarh ... Petitioner(s) versus 1- State of Chhattisgarh Through Secretary, Revenue Department, Mantralaya, Chhattisgarh. Mahanadi Naya Raipur, Bhawan, District Raipur, 2- The Collector Bemetara, District Bemetara, Chhattisgarh., District : Bemetara, Chhattisgarh. 3- The Sub Divisional Officer (R) Bemetara, District Bemetara, Chhattisgarh. 4- Dinesh Verma Sarpanch Gram Panchayat Ninava, R/o Village Ninava, Tahsil and District Bemetara, Chahttisgarh. 5- Kunju Verma Secretary Gram Panchayat Ninava, R/o Village Ninava, Tahsil and ... Respondent(s) District Bemetara, Chahttisgarh.
Legal Reasoning
For Petitioners For State For Respondent No. 4 & 5 : Mr. Vivek Bhakta, Advocate : Mr. Bharat Rajput, Advocate : Mr. Shubham Bajpai, Panel Lawyer -2- Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 21.01.2025 1) The petitioners have filed this petition seeking the following relief(s):- “10.1. That this Hon'ble Court may kindly be pleased to set-aside the impugned order dated 31.1.2019 passed by the respondent no. 2. 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.” 2) Mr. Bharat Rajput, learned counsel appearing for the petitioners would submit that the petitioners are the possession holders of the Abadi land. He would further submit that the petitioners started constructing a house on the subject land in the year 2018. He further contends that a show cause notice was issued by the Gram Panchayat on 27.03.2018 (Annexure P/1), directing the petitioners to vacate the land within seven days. Thereafter, the petitioners filed a reply, wherein they stated that they has been in possession of the subject land for a long time. He further argues that a resolution was passed by the Gram Panchayat on 06.07.2018 (Annexure P/3), and a decision was taken to remove the petitioners’ possession by 21.07.2018. He contends that the Sarpanch acted with an ulterior motive to remove the petitioners from the subject land. He also submits that according to the provisions of Section 248(1-A) of the Chhattisgarh Land Revenue Code, 1959 (for short, CG LRC), once a resolution was passed by the -3- Gram Panchayat, the same should have been forwarded to the Tehsildar for initiating proceedings under Section 248 of the CG LRC. He argues that the Gram Panchayat has no legal authority to order the removal of encroachments from government land. 3) On the other hand, learned counsels appearing for the respondents would oppose the submissions made by learned counsel for the petitioners. They submit that according to the provisions of Section 56 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993, the Gram Panchayat is empowered to remove encroachments/obstructions on open sites, public streets, etc. They argue that the Gram Panchayat afforded a proper opportunity of hearing to the petitioners before making such a decision. Therefore, they contend that the petition deserves to be dismissed. 4) Heard learned counsel for the parties and perused the documents.
Decision
5) From a perusal of the documents appended to the writ petition, it is evident that the petitioners are in possession of the Abadi land located in Village Ninava, Tehsil & District Bemetara. A show cause notice was issued on 27.03.2018 by the Gram Panchayat, and a resolution was passed on 06.07.2018. The petitioners remained in possession of the subject plot and constructed a house at the relevant time. 6) Section 56 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993, deals with Hindrances, obstructions and encroachment upon public streets and open sites. It reads as under:- -4- “56. Hindrances, obstructions and encroachment upon public streets and open sites. - (1) Whoever within the Gram Panchayat area causes any hindrance, obstruction or encroachment over any public street or open site or upon any drain in such street,- (a) by building or setting up any wall, fence, rail, post, stall, verandah, platform, plinth, step or any other structure; or (b) without written permission of the Gram Panchayat or contrary to the conditions mentioned in such permission by putting up any verandah, balcony, room or other structure so as to project over any public street or upon any drain in such street; or (c) by unauthorisedly removing earth, sand or other material from any site; or (d) by unauthorisedly cultivating any grazing or other land,may be punished with fine, which may extend to one thousand rupees and in case of continuing offense with further fine which may extend to twenty rupees for every day during which such encroachment, obstruction or projection continues after the date of first conviction for such offense. (2) Notwithstanding anything contained in sub-section (1), the Gram Panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing or any other land not being private property and shall have the like power to remove any unauthorised obstruction or encroachment or projection of the like nature in any open site not being private property, whether such site is vested in Gram Panchayat or not and the expenses of such removal shall be paid by the person who has caused the said encroachment and on failure to pay such expenses the same may be recovered from such person as an arrear of land revenue: ;Provided that notwithstanding anything contained in sub- section (1) and this sub-section if the Gram Panchayat resolves to remove any hindrances, obstruction or,encroachment on any land vested in the State Government it may refer to the Tehsildar to remove such hindrances, obstruction or encroachment from such land and the Tehsildar shall proceed to do so under the. provisions of the Chhattisgarh Land Revenue Code, 1959 (No. 20 of 1959). (3) Notwithstanding anything contained in this section the Gram Panchayat may allow any temporary occupation or erection in or putting projection over any public place for not exceeding ten days in such manner so as not to cause inconvenience to the -5- public or any individual, on occasions of festivals and ceremonies in accordance with the bye-laws made under this Act. (4) The Gram Panchayat shall not pass any order in the exercise of powers under this section until the person concerned has been given a reasonable opportunity of being heard.” 7) A bare reading of Section 56 Chhattisgarh Panchayat Raj Adhiniyam, 1993, would make it clear that with regard to encroachment over the government land, no action can be taken by the Gram Panchayat to remove the encroachment and the procedure is provided under Section (1-A) of Section 248 of the CG LRC. It reads thus:- “248(1-A). On a resolution duly passed by the Gram Panchayat in respect of any unauthorised possession, the Tahsildar shall start and complete the proceedings under this section within thirty days from the date of receipt of the information of such resolution and shall communicate the action taken by him to the Gram Panchayat.” 8) In the present case, a resolution was passed by the Gram Panchayat for removal of the encroachment against the petitioners on 06.07.2018, but instead of forwarding the resolution along with a copy of the application to the concerned Tehsildar, the Gram Panchayat itself took a decision to remove the encroachment, and this recourse was not permissible under the law. The Gram Panchayat ought to have forwarded the resolution to the concerned Tehsildar, and the Tehsildar has been vested with the power to remove the encroachment according to the provisions under Section 248 CG Land Revenue Code, 1959. 9) Taking into consideration the above-discussed facts and the provisions of Section (1-A) of the 248 of the CG LRC, the show cause notice issued by the Gram Panchayat Ninava, dated 27.03.2018 (Annexure P/1) is hereby quashed. -6- However, the Gram Panchayat would be at liberty to move an appropriate application along with the resolution passed by the Gram Panchayat before the concerned Tehsildar and if such an application along with the resolution is placed before the concerned Tehsildar, it is expected that the concerned Tehsildar shall take an appropriate action strictly in accordance with law according to the provisions 248 of CG LRC. The Gram Panchayat would also be at liberty to pass a fresh resolution if the occasion arises. 10) Interim relief, if any, granted earlier is hereby vacated. No order as to cost. Sd/- (Rakesh Mohan Pandey) Judge Nadim