HIGH COURT OF CHHATTISGARH z BILASPUR Writ‘Petition No.652 of 2002 N ¥ Petition ulArticle 2261227 of the Constitution of India Advocat€ With Shn Shallandra Shanna, l ‘ Apgearance Shri P.K.C. Tiwari, Sr. counsel for the petitioner. Shri V.V.S. Murthy, Dy. Advocate General with Shri SK Mishra, Panel Lawyer for the State/respondents. I M ORAL- ORDER (Passed on 3.3.20 1 1) 1. Though this petition has remained pending since 2002, no reply Learned counsel for the has been flied by the respondents. respondents again prays for some time to flle reply. However, considering that the matter has remained pending since long and taking into consideration the nature of grievance raised by the petitioner before this Court, I am not inclined to gr time to file any reply. ~~W~ ~a2‘. The petitioner has approached this Court assailing correctnas ant further P- l), by which 4 and validity of the show-cause notice (Annexure upon to show cause as to why the petitioner has been called 248 (1) of the Land Revenue Code be proceedings under Section PETITIONER Shambhu Dayal Shanna Versus RESPONDENTS State of Chhattisgarh and another not initiated and penalty imposed, on the' allegation that the petitioner has constructed wan and encroached upon the Govt. land in khasra No. 48/1 admeasuring 7,200 sq. ft., which is ‘nazul land. 3. The case of the petitioner is that the father of the petitioner was in peaceful possession of land admeasuring 6400 sq.ft out of khasra (Plot No.) 48/ 1, now declared as nazul plot. On the basis of the possession over the land, a temporaly lease for an area 50 x 4O = 2000 sq.ft. out of plot No.48/ 1 was granted in the name of Moolchand Shanna (fatherof the petitioner) on 23.5. 1966 and it is the case of the petitioner that after the death of his father, in the year 1984, the possession continued on the said land. Further, a temporary lease for an area 90 x 40=3600 sq.ft and 40 x 20 = 800, total 4,400 sq.ft. out of the plot No.48] 1 was granted in the name of the petitioner on 29. 10. 1975. It is the case of the petitioner that boththe leases are continuing and the lease rent has been continuously paid by the petitioner up to 313‘ March 2003 as reilected from the statement of Annexure P 7 85 P 8 It 1s further case of the petitioner that permanent lease 1n respect of plot admeasuring 960 sq. ft. out of the same plot No.48/ 1 and a permanent lease of 990 sq.ft. out the same plot No.48/1 has been granted in favour of the petitioner’s sons namely Dayaram Sharma 8a Somprakash Sharma. According to the petitioner, the temporary lease was up to 31.3.2003 and the petitioner has also applied for grant of permanent lease which is pending since many years in respect of both the areas of temporary leases. It has also been stated that matter is still pending and the petitioner has not been intimated regarding rejection of the same. . Learned counsel for the petitioner submitted that the petitioner and his father had been granted temporary lease over their respective land from time to time. Even after the expiry of period of temporary lease, the petitioner cannot be said to be encroacher, particularly when an application for grant of permanent lease has already been made, which is pending consideration since long and when the petitioner has been submitting application for renewal of temporary lease as and when occasion arises, initiation of proceedings of eviction under the show—cause notice is neither proper nor justiiied. He submits that the respondents ought to have considered petitioner’s application for grant of temporary lease as also ought to have taken into consideration the effect and impact of the petitioner’s continuing on the strength of temporary lease, applying for renewal of temporary lease as and when occasion arises and at the time of paying the lease rent to the respondents, which according to the petitioner has been accepted by them. Learned counsel for the petitioner submitted that in such a situation the initiation of proceedings are not at all warranted and therefore the show cause notice deserves to be quashed. c y_m .é- rgg 5‘. Though no mply has been filed by the reépondents, learned counsel for the respondents submitted that the peitoner has ti only been gin a show—cause notice, as to why the proceedings be not imitated against him. He submit that whateve grounds which are now being raised by the petitioner before this Court ould well be raised before the concerned competent authority in repl to the show—case noice. ccording to , whether the y u t A him petitioner is an encroacer or not has to be deded by th h ci e coerned authority and if the petitioner hall submit a reply, the nc s concerned authority would consider the eiTeCt and impac of th t e fact that the petiioner was. ganted temporar lease, he ad been t r y h applying for rewal of temporary lease as and when occasion arises and his claim that he has been aying lease rent continuously, which is accepted. He further sbmits that the petitionefs case that application for perman ease has also ent l been made, which is still pending consideration, shall also form subect matter of consideration of the compent thority in case j et au the petitioner bmits reply to the showcase notic. su -u e . The contention of the petitioner is that he was the person who was grante a temporary lese. According to the petitner even d io after iry of temporary lease, he used to appl for renewal oi‘ exp y temporar lease and has been paying the lease rent from time to y time which has been accepted. owever, whether the petitioner H has actually been applying renewal after expiry of the eriod o for p f e ve s r c en p u ' -5- S7 temporary lse and has beé paying lease ent a matter which ea n r is calls for an enquir. y . If it is found that the petitioner has been paying lease rent which has been cepted by the authority, certainly, it cannot be said ac hat the petitioner is an encroacher. Hover, the matt requires t we er a factual enquiry into various claims made by the petitioner in this petition. The petitioner appears to have rushed to the Court probably because of the prealent situation at the ime when v t notice was issued to him, as the petitiOr apprehended that he is ne being subjected to some political victimization. . Ordinarily, this Court would not interfere at the stage of show cause notice. The circumstances in which the ierference could nt i, be made at the stage of show cause notice, are very limited. In case where it is found that issuance of show—cause notice is without jurisdiction or‘ is in violation of some provision of law or absolute malajide that the Court could exercise its discretion to interfere even at the stage of show cause notice. On petition filed by the petitioner before this Court, this Court had granted protection to the petitioner vide its order dated 7.5.2002, wherein it was directed that proceedings of the Revenue Court may go on, but final orders shall not be passed. 9. Learned counsel for the petitioner submits that in the proceedings which were initiated pursuant to the show cause notice, no further stapes have been taken. unm ,v U. A 10. Taking into consideration the totality of the circumstances, it would be appropriate now to allow the petitioner to submit his detailed reply to the show cause notice on the ground including the submission that he is not an encroacher, on the strength of the submission that even after expiry of period of temporary lease, he had been applying for renewal of temporary lease and paying lease rent which is being accepted. The reply to the show cause notice shall be filed by the petitioner within a period of 2 months h‘om today. If such a reply is filed before the Tahsildar, Kharsiya/respondent No.2 within time stipulated, the concerned authority shall take into consideration the grounds which are raised by the petitioner and shall also take into consideration the submission ‘of the petitioner that he is not an encroacher. In case any proceedings for grant of permanent lease in respect of the land in dispute, in respect of which show cause notice has been issued, is still pending, the same shall also be decided within a period not later than 6 months from the date of receipt of copy of this order, by the authority competent to decide the matter of permanent lease. The Tahsildar, Kharsiya shall not take nay coercive action against the petitioner until decision of his case for permanent lease if any, pending before the competent authority. Praveen Sd/- t Manindra Mohan Shrivastava Judge i 1 l. With the aforesaid observations, the petition is finally disposed of. ,