Nafr High Court
Case Details
1 Digitally signed by RAGHVENDRA JAT NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 2263 of 2022 Order Reserved on: 01.05.2025 Order Delivered on: 08.07.2025 1 - Rajendra Kumar Dewangan S/o Babulal Dewangan Aged About 35 Years R/o Sukul Para (Kharod), Tahsil-Pamgarh, District - Janjgir- Champa Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Revenue Department, Mahanadi Bhawan, New Raipur, Tahsil And District Raipur Chhattisgarh. 2 - Collector District Janjgir Champa Chhattisgarh. 3 - Tahsildar, Tahsil Pamgarh District-Janjgir Champa Chhattisgarh. 4 - Madhu Devi D/o Ram Avatrat, Aged About 60 Years R/o Sukul Para Kharod Tahsil-Pamgarh District - Janjgir Champa Chhattisgarh. ... Respondent(s) 2 For Petitioner(s)
Legal Reasoning
by this Court in the matter of Asgar Ali vs. Amna Bai reported in 2011 (3) MPHT (Chh) 98. 5. On the other hand, learned counsel for the State submits that the proceedings initiated by the concerned Tahsildar is in accordance with law and rightly passed the order while directing the petitioner to vacate the land in question. The concerned Tahsildar after calling the report from the concerned Patwari has passed the order which cannot be said to be faulted with. The petitioner is an encroacher and as such he is not entitled for any leniency. 6. I have heard learned counsel for the parties and perused the material available on record. 7. From the perusal of the record, it seems that upon complaint made by respondent No. 4, a proceedings has been initiated by the concerned Tahsildar under Section 250 of Chhattisgarh Land Revenue Code, 1959 while directing for removal of construction raised by the petitioner on the disputed land. The said construction is permanent in nature and as such the concerned Tahsildar is not having jurisdiction to pass order for removal of permanent construction. 8. Section 250 of Chhattisgarh Land Revenue Code, 1959 is only for removal of encroachment in respect of open land of any Bhumiswami. From the bare reading of this provision, it is quite 5 vivid that this provision can be taken into consideration only for dispossession from any land and not for dispossession from any super structure constructed by the party. 9. The Madhya Pradesh High Court in the matter of Krishnakumardas (supra) has held as under:- “Now, the purpose of the Code is to provide a speedy and summary remedy to a Bhumiswami dispossessed of his land. No doubt, the land is fictionally meant to include even buildings on land; but it is clearly not the intent of the Code to provide a spoedy and summary remedy ander the Code to a Bhumiswami dispossessed of his immovable property. The use of the word Bhu-miswami" in connection with the land of which he is dispossessed and of which he may claim restoration of possession in section 250 of the Code clearly shows that the speedy and summary remedy provided by the Code is to be resorted to when a person, who is a Bhumiswami, is dispossessed of land which he hoids in Bhumiswami rights and when the restoration of possession of such, land is the dominant purpose. But, when the land is an appurtenance to the building and the dominant purpose of the plaintiff is to get restoration of possession of his building of which he alleges forcible dispossession, 6 section 6 of the Specific Relief Act would be his appropriate remedy which provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. I may also add that buildings standing on land are fictionally made to mean land in the Code (see section 2(k) of the Code), provided there is nothing in the subject or the context, and that consequentiy, when the dominant purpose of a person who also happens to a Bhumiswami is to recover possession of his house of which he has been illegally dispossessed, his house cannot come within the fictional definition of the word 'land' as defined in the Code to give jurisdiction to a Tahsildar to restore him to its possession under section 250 of the Code.” 10. This Court has also dealt with similar matter in Asgar Ali (supra) and has confirmed the order passed by Madhya Pradesh High Court in the matter of Krishnakumardas (supra) while stating that the Revenue Courts are not having authority like the Tahsildar to act upon Section 250 in the case of removal of super structure is the matter of Jurisdictional Civil Court and not by the 7 Revenue Courts. Since, in the order dated 04.04.2022 itself it has been clearly mention that there lies a pakka house constructed upon the said land as such for removal of super structure recourse of Section 250 of the Chhattisgarh Land Revenue Code, 1959 cannot be taken into consideration. The parties should have relegated their grievance before the concerned Civil Courts and not before the Tahsildar. Since, the concerned Tahsildar has exceeded its jurisdiction while passing the order as such the existence of alternative remedy would not come into the way and as such direct petition is filed by the petitioner is maintainable. Since, the impugned order has been passed in violation of Section 250 of the Chhattisgarh Land Revenue Code, 1959. 11. Accordingly, the impugned order dated 04.04.2022 passed by the Tahsildar, District-Janjgir-Champa is here by set-aside.
Arguments
: Mr. H.V. Sharma, Advocate. For Respondent(s) /State : Mr. Shreyansh Mehta, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad 1. By way of this petition, the petitioner has prayed for following C A V Order reliefs:- “10.1 It is therefore prayed that this Hon'ble court may kindly be pleased to issue writ of CERTIORARI quashing the order dated 04.04.2022 passed by the Tahsildar. 10.2 That, this Hon'ble court may kindly be pleased to issue any writ or direction or order as deem fit in the interest of justice.” 2. By way of this petition, the petitioner has challenged the order dated 04.04.2022 passed by the Tahsilar, Pamgarh, District- Janjgir-Champa, Chhattisgarh in a complaint case by which on the basis of complaint made by respondent No. 4 i.e. Madhu Devi. The petitioner has been directed to remove the alleged encroachment made by him whereas according to the petitioner, the petitioner has never encroached upon any land and as such the proceeding initiated under Section 250 of Chhattisgarh Land Revenue Code, 1959 is without any basis. The petitioner has approached before this Court directly as according to the 3 petitioner, the Tahsildar has wrongly exercised its jurisdiction vested upon him as per Section 250 of Chhattisgarh Land Revenue Code, 1959. In the land in question, it is neither an agricultural land nor an vacant land. A house has already been constructed as such the Tahsildar is not having any jurisdiction under Section 250 of Chhattisgarh Land Revenue Code, 1959 initiated any proceedings and to pass any order. 3. The case as projected by the petitioner is like that respondent No. 4 i.e. Madhu Devi has made complaint before the Collector, Janjgir-Champa stating that the petitioner and one Atis Kumar have made encroachment on her Bhumiswami Land Part of Kharsa No. 507, situated at Village-Bhadariapara. 4. Learned counsel for the petitioner submits that so far as Section 250 of Chhattisgarh Land Revenue Code, 1959 is concerned, the Tahsildar can not pass any order in respect of the land in which building has already been constructed. The vacant possession of a land in which building has already been constructed cannot be given by the concerned Tahsildar as such the get back possession of the building under Section 250 of Chhattisgarh Land Revenue Code, 1959 is not maintainable. He has placed reliance upon the judgment passed by the High Court of Madhya Pradesh in the matter of Krishnakumardas & Another Vs. Balramdas & Ors reported in 1971 JLJ 827 and order passed 4
Decision
12. Accordingly, the writ petition is allowed. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat