(a?) T OF CHHATTISGARH AT BILASPUR : on’ble Shri Justice Praéhaht Kumar Mishra Writ ~——\__ Petition No.3209 of 1992 Udho Singh and others VGrSUS State of MP. (now Chhattisgarh) and others ORDER Postfor 9-3-2010 )! Sdl- ‘ rashant Kumar Mishra Judge HIGH COUR Single Bench H i i P HIGH COURT O‘F CHHATTISGARH AT BILASPUR Sin_qle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition No.3209 of 1992 Shri Anil Kumar Pandey, counsel for the petitioners. Shri Sushii Dubey, Government Advocate for the State/respondents No.1, 3 and 4. No one appears for respondent No.5. Writ Petition under Article 226/227 of the Constitution of India ORDER (Passed on Mfr March, 2010) In this petition under Articles 226 and 227 of the Constitution of lndia, the petitioners have called in question the legality, validity and propriety of the order dated 2-5—1992 (Annexure P—7) passed by the Board of Revenue and the Collector’s order dated 23—3-1987 (part of Annexure P—4) and the order releasing the tank in favour of Ex- Malgujar. 2. Case of the petitioners is that the subject tank on Khasra No.100 at Village Boriya, Tahsil Saja, District Durg belonged to the Ex— Malgujar and the said tank was not saved in his favour under the relevant provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (henceforth ‘the Act, 1950’). The Ex-Malgujar Chamru did not file any appeal or evision against the said order and that Nisfari rights of the villagers \ V Petitioners Udho Singh and others versus Respondents State of M.P. (now Chhattisgarh) and others Present: were recorded in the revenue records. The tank bears an area admeasuring 2.34 acres. The Ex-Malgujar filed an application under Section 57(2) of the Chhattisgarh Land Revenue Code, 1959 (henceforth ‘the Code, 1959’) for recording the tank in his name. The Sub-Divisional Officer on 15-5—1968 ordered that it will continue to vest in the State, however, the appellate Court of Additional Collector, Durg vide order dated 26-8—1968 ordered that the subject tank be recorded in the name of Chamru. Appeal before the Commissioner, Raipur was l disposed on 13—6—1969 with an observation that the Nisz‘ari and customary rights of the villagers shall be protected. According to the petitioners, the Additional Collector, Durg could not have ordered for recording the name of Chamru on the subject tank. Proceedings regarding modification of the Nistar Patrak was initiated by the said Chamru, which ultimately went upto the Board of Revenue. The Board of Revenue, vide its order dated 2~5~1992 (Annexure P-7), which is under challenge in this writ petition, directed that the subject tank cannot be entered into Nistar Patrak because it has never been separated and entered in the Nistar Patrak. lt has been observed by the Board of Revenue that the tank'is not in existence and, therefore, assessment of land revenue on the land is proper. 3. Learned counsel for the petitioners has argued that the Board of Revenue should not have interfered with the order dated 14-12-1987 (Annexure P—6) passed by the Additional Commissioner, Raipur. " 4. Learned Government Advocate for the State/respondents No.1, 3 and 4 has supported the impugned order passed by the Board of l l l t l l l Revenue and has prayed for dismissal of the writ petition. l l l l l {g 43, 5. No one has appeared for respondent No.5 in spite of the fact that S.P.C. was issued to him on 22-6-2007. 6. From the record‘ it appears that vide order dated 13-6-1969 (Annexure P-1), the Commissioner, Raipur Division, on an appeal preferred by Chamru, has directed that the said Chamru shall be the owner of the tank but the villagers will have their Nistari rights in the tank. Vide order Annexure P-2 passed by the Additional Commissioner, Raipur on 14-12-1987, it was directed that in the year 1968-69 itself the tank has been recorded in the name of Chamru but the villagers shall continue to enjoy Nistari rights and upon Chamru’s interference with the rights of the villagers, he was fined with Rs.500/— under Section 253 of the Code, 1959. The said imposition of fine is valid and since respondent No.5 Madho Singh has purchased the tank from Chamru by registered sale-deed dated 10-4—1967, he is now the x owner of the tank and the order passed by the subordinate revenue authorities forfeiting the crops standing on the land is not correct and. therefore, the orders passed by the Collector, Durg on 12-3-1986 and 14-3-1986 cannot be interfered with. 7. lt appears that respondent No.5 Madho Singh thereafter preferred an application before the Collector, Durg for deleting the entries from the revenue records, wherein the subject land is recorded as tank. This application was moved on the ground that he is cultivating the land for last 15 years, therefore, the Nistar Patrak and l revenue records deserve to be corrected. Upon completion of proceedings, which included issuing proclamation and inviting objections, the Collector, Durg, vide its order dated 23-3-1987 (part of Annexure P—4) directed that the land be declared as Kabil Kast and land revenue be fixed. This order was subjected to challenge before the Additional Commissioner, Raipur, who vide his order dated 14—12- 1987 (Annexure P-6), directed that the entry of the name of Chamru in the revenue records does not appear to be proper and the provisions of law have not been properly adhered to. The order passed by the Collector, Durg on 23-3-1987 was set aside. The Additional Commissioner directed that the villagers shall continue to enjoy their Nistari rights. lt is this order of the Additional Commissioner passed on 14-12—1987, which was challenged by respondent No.5 Madho Singh before the Board of Revenue. The Board of Revenue has partly allowed the appeal and observed in paragraph 13 of the order that the Collector could not have declared the land as Kabil Kast and the said part of the Collector’s order is illegal, however, the Board of Revenue affirmed the order passed by the Collector assessing the land revenue. N/A. . 8. Annexure P-3 is the application filed by respondent No.5 Madho Singh before the Collector, Durg under Section 238 and 32 of the Code, 1959. It is by this application filed on 18-2—1986, a fresh round of revenue proceedings were initiated by Madho Singh for modification of the revenue entries. lt appears that when Madho Singh was proceeded against under Section 253 read with Section 59 of the Code, 1959 for violation of the villagers’ rights of Nistari and he was " subjected to make payment of fine of Rs.500/— and forfeiture of J standing crops, Madho Singh moved application (Annexure P-3) for modification of the revenue entries and the Nisz‘ar Patrak. As per his 6L7 own case, the land belonged to Chamru, which he has purchased by registered sale~deed. Thus, the land was a Bhumiswami land, which was entered as tank in the revenue records and villagers were entitled to exercise their Nistari rights. The application has been presented under Section 238 and 32 ofthe Code, 1959. 9. Section 238 of the Code, 1959 makes provision regarding rights in waste land of another village whereas Section 32 of the Code, 1959 is about inherent powers of revenue Court. Apparently, neither Section 238 nor Section 32 of the Code, 1959 gives power to the Collector to change revenue entries. When the proceedings with regard to the ownership of Chamru and the Nistari rights of the villagers have already attained finality vide order dated 13-6—1969 (Annexure P-1), as referred in the Additional Commissioner’s order dated 14-12-1987 (AnnexureP—6), fresh proceeding at the instance of Madho Singh for change of revenue entries was not at all maintainable. Under the Code, 1959, provisions have been 'made to maintain record of unoccupied land under Section 233, whereas Section 234 is about preparation of Nistar Patrak. Under this provision, Nistar Patrak is to be prepared embodying a scheme of management of all unoccupied land in a village, more particularly, matters specified in Section 235 of the Code, 1959. The said section, i.e., Section 235 specifies the matters to be provided for in Nistar Patrak. Section 236 of the Code, 1959 again empowers the Collector to make provision in Nistar Patrak l lfor certain matters. Under Section 237 of the Code, 1959, the lCollector has been empowered to set apart land for exercise of Nistari rights. All these provisions are applicable on the unoccupied land of ‘ the vage, whereas in the case in hand, t was Madho Singh’s own deserves to be set aside. 1. The Hon’ble Supreme Court in lntellectuals Form, Tirupathi vs. State ofA.P. and others, (2006) 3 SCC 549, has held that water bodies should be ved and protected. Again in Susetha vs. State of T.N. and others, (2006) 6 SCC 543, the Hon’bie Supreme Court has demonstrated concern about the conservation of shortag and ecology is preservd. e e 11. keeping in view the statutory scheme under the Code, 1959, this Court finds that the order passed by the Board of Revenue deserves to be interfered in exercise of powers under Articles 226/227 of the Constitution of lndia. l 12. ln the result, it is directed that the subject tank shall continue to be recorded in the name of res rchased it from Chamru, in whose favour the order dated 13-6-1969 p/ lp” l pondent No.5 Madho Singh, who had i l l l l l l l iv m i 0 u sa @ 1‘}, (Annexure P—1) was passed by the Commissioner; Raipur Division, which has attained finaiity. it is also ordered that the villagers shall exercise their Nistari rights over the tank and the change of revenue entries by the Collector, Durg on 23-3-1987 has rightly been set aside by the Additional Commissioner, Raipur in appeal case No.221/A- 74/86-87 (Annexure P—G). The order regarding assessment of land revenue by the Collector has also been rightly set aside by Annexure P-6. The present writ petition is, thus, allowed. The impugned order passed by the Board of Revenue is set aside tn view of the directions given above. No order as to costs. / Sdi- Prashant Kumar Mishra Judge