IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR Writ Petkion. N0:4-77y. Petitioner Versus p ^- ^ ^° Respondents •!'^-^"1 <y''K^!i"\ ..•^^•^ ^^L-^ 2. Ai>' .....A-" Bodhan Singh Thakur S/o Tate Shri ^m Singh Thakur, aged about 72 years R/o Seepat Chowk, Near Indrasethu, Bilaspur -(C.G.) State of Chhattisgarh through the Secrptary, Department of Local Self Government Mantralaya DKS Bhawan, Raipur-(C.G.) Municipal Corporation Bilaspur through jts Commissioner, Municipal Corporation, fiilaspur - ^p?®^ WRIT PETITION UNDERARTICLE 226/227 OF THE CONSTITUTION OF IND1A BII!M ;•»"»» °Y HIGHCOURTOF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI IWANINDRA MOHAN SHRIVASTAVA.J. Writ PetitionNO.1771 of 2002 Petitioner Bodhan Singh Thakur Versus ResDondents State of Chhattisgarh and another X.. FOR PRONOUNCEMENT OF ORDER ON & IVIAY, 2011 Sd/- . Manindra Mohan Sfarivastaya Judge y -I illtrfll ^ s' Mtli !»i IBH! .»- S Bl! ^. (^ HIGH COURT OFCHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Writ PetitionNO.1771 of2002 Petitioner Respondents Bodhan Singh Thakur Versus Stateof Chhattisgarh andanother (Writ Petition under Article 226/227 of the Constitution of India) Preseni:- / Shri Anand Dadariya, counsel forthe petitioner. Shri Suryakant Mishra, Panel Lawyerforthe State/respondent No.1. Shri A. S. Kachhawaha, counsel for respondent No.2/Municipal Corporation. ORDER (Pronounced on k -05-2011) By this petition under Article 226 and 227 of the Constitution of India, the pefitioner has prayed for following reliefs: 7. Relief Sought: In view of the facts and circumstances mentioned above, the petitioner respectfully prays for the following reliefs: 7.1 That the respondents be directed not to demolish the petitipner's house any more. 7.2 The respondent be directed to immediately stop the construction ofthe road on the petitioner'.s land. 7.3 The respondents be directed to pay compensation of Rs.15 lacs to the petitioner for-demolishing the part of his house and for weakening the entire house ofthe petitioner. 7.4 The respondents be directed not to remove the wall of the Indrasethu near the house of the petitioner because once the said wallwould be removed then there is every possibility that the vehicles may enter in the petitioner's house. 7.5 The respontfent be directed not to make any construction or put anything uponthe petitioner's land. Any other relief may also begranted to the petitiori6i which this Hon'ble court feels fit in the facts & circumstances of the case. . 9 -si 9 IIEs •^ i ss 13 » ll St sKI VK • :^ ^; Sa' M a.a '\. :iWi K6S*' WSwK'"" l!BSS;: Bil' B§B; li \ .\ ^ 2. The facts necessary for adjudication of controversy involved and as averred ahd asserted in the writ petition are that the petitioner is theowner of the house, situated at Seepat Chowk, near Indirasethu, Bilaspur. The petitionerpurchased a parcel ofland admeasuring 4500square feet in Khasra Number 1114 through registered sale deed dated 23-03-1966 (Annexure A-3). The petitioner then construeted house in the year 1967- 1968, after obtaining permission. The firstfloor of the house was then ^ •''•'. constructed in the year 1980, after obtaining sanction vide order dated 25- 03-1980 fromtheofficeoftheDeputy Director, Town and Country Planning, Bilaspur. In the sanctioned map, width of the road towards Ratanpur has been shown to be 80 feetwide. 3. It is the case of the petitioner that on 11-06-2002, the officers of the respondent arrived at the spot and demolished a part of the house of the petitioner without giving any notice, stating that encroachment is being removed in order to pave wave for widening of the road. Even though, the petitioner attempted to satisfy the respondent authority by showing sanctioned map of the house along with letter dated 25-03-1980, the documents were not accepted and the respondents demolished front side of the construction up to the stretch of 11 feet and the total area of the construction which has been demolished, comes about 253 square feet. In support thereof, the petitioner has placed on record certain photographs (Annexure A-2). 4. Submission of learned counsel for the petitioner is that theaction of the officers of the respondents is high handed and ifl utter violation ofthe provisions of the law. Learned counsel for the petitioner submitted tKat the 'ass? .:» »!i Bls »i .^:; -%• :» a,i :BfI1 IS'^ '^^:'. s. -:^.' aa ^-'•"'i^te^ :,:(i''.i>"a%:^, .I'uC' '-1t-. "%. ^' :^;?^^B:'t.. • M 'SSSiia S ^ ,s? •'t*>,- ^wsl'/ y^^^.sf y-siiwsv:~ . N!!l;K;\.i B!i«:Eb*i: ^ petitioner never encroached upon any part of the public road or any government land or municipal land. He further submits that no proceedings were drawn either by the Tahsildar under Section 248 of the C. G. Land Revenue Code, 1959 for removal of any encroachment on any government land nor the corporation ever initiated any proceeding fpr removal of any encroachment either on public street or municipal land under any of the provisions contained in the C.G.Municipal Corporation Act, 1956. He further submits that if at all, there was any allegation of encroachment upon government land or municipal land, due proceedings ought to have been drawn and without there being^any fact finding report by a competent authority as required under Land Revenue Code or Municipal Corporation Act, demolition of a part of the petitioner's house is highly illegal. Learned .counsel submits thateven if assuming that the respondents intended to widen the road, widening required the private lands to be acquired including that of the petitioner, the only course permissible under the law was to draw acquisition proceedings and pay compensation to the petitioner, which has not been done. Learned counsel further submitted fhat at the time of filing petition, the petitioner seriously apprehended that the respondents are proceeding to install electric poll on petitioner's landto carry high voltage electric wire and further that the action of the respondents was itself illegal as the same was done without acquiring the land of the petitioner. 5. Referring to the documents placed on record along with the application for filing additional documents, learned counsel for the petitioner further contended that on 03-07-2002, the petitioner had submitted an application to the Tahsildar for demarcation of his land,. whereafter Revenue Inspector carried out the measurement and prepared demarcation \ ^t; •^SsS tgi •^iifc Ssi•I 'es .:^s^.: 'ss • ii« M SB5 a '^ s• •ft^: ;2iH IS 9 ». s |!^ 9 SSs 'sai \a». 3. 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In fact, no proceedings, whatsoever till the date the construction was demolished, have been placed by either 6f the respondents, which either related to removal of encroachment or anyother kind of action on any allegation of coftstruction inviolation ofbuildingpermission. 9. It is therefore crystal clear that on 11-06-2002, when a part of the structure was demolished, neither any kind of notice was ever given to the petitioner nor any proceeding was drawn for removal of encroachment either by the responderit No.1 or by the respondent No.2. 10. Where it is alleged that any part of the government land has been encroached, the State authorities are required to draw appropriate summary proceedings as contemplated under Section 248 of the C. G. Land Revenue Code, 1959. Unless such proceedings are drawn, it is impermissible under the law to take any action for removal of construction or possession from any area occupied by a person against whom, it is alleged that he has encroached upon the government land. In the present case, no such proceedings have been drawn; 11. It isnot the case ofthe respondent No.2 that any part of the building constructed by the petitioner projected beyond the regular line either ilUiill :t.i^:s^..A ^ r 11^' '*s-^:..ly :,!>',,,<»ffii< -l;i) •ft ®i5SflS&:B K. !-<' J>' \ existing or determined for the future or beyond the immediately adjoining building. In fact,.no such notice has been given.by the respondent No.2 to the petitioner noranysuch material has been placed by the respondent No.2 before this Court, because the respondent No.2 has not filed any return whatsoever. It is not at all the case of the respondent No.2 that the petitioner had encroached upon any municipal land. It is the case ofthe respondent No.1 that the petitioner encroached upon certain municipal land. It isalso not the caseofthe respondent No.2 that the petitioner raised the eonstruction in violation of the building permission or that construction was raised by the petitioner without due and proper building permission or sanction of map. In any case, the respondent No.2 has not placed any material on record to show that on any such allegations, any notice as required under Section 307of the Municipal Corporation Actwas issued to the petitioner. The respondent-corporation have also not come out with any case relating to obstruction of streets nor has claimed that proceedings were taken against the petitioner under Section 322, 323 or 325 of the Municipal Corporation Act, 1956. 12. In viewof the above consideration, I have n& hesitation to hold that on the date i.e. 11-06-2002, when a. part of the building of the pefitioner was demolished, there were no proceedings drawn or notice given by either of the respondents to the petitioner alleging encroachment and further that there was no material colleeted in any fact finding enquiry by the authorities of the respondents to show that the petitioner had encroached upon municipal land. In the absence of proper proceedings drawn by giving notice and opportunity ofhearing to the petitioner, the respOnclents have no authority to either demolish a part of the construction raised by the f^ ^.^^'••^ trggS®, • . ^ petitioner or to dispossess the petitioner from his occupation, land and building in his possession. 13. However, in view of the affidavits filed by the parties before this Court, allegations, counter allegations and averments made, there is a serious dispute with regard to the question as to whether the petitioner himself pulled down the structure as stated by the respondents or the respondents demolished a part ofth.e structure, as emphatically stated by the petitioner in this petition. What has been submitted by learned-counsel for the petitioner that it is a cock and bull story of the respondents that the petitioner himself demolished a part of the building structure, cannot be discarded at the threshold. The conduct ofthe petitioner in approaching this Court assailing the action of the respondents definitely shows that the petitioner was aggrieved by the action of the respondents. Even if the version of the respondents is to be accepted that the petitioner was informed regarding encroachment whereupon petitioner himself demolished a part of his building structure, is accepted, it is clear that it was upon the insistence of the respondents that the petitioner demolished the structure whereas till that date, there was no material available with either of the respondent authorities in the form of any report nor was there any notice issued to the petitioner for removal of encroachment, if at all, it was there. Subsequent to the action of the demolition, the petitioner got demarcation done on his application and a report (Annexure A-6) has been placed on record, which shows that the petitioner did not make any encroachment on any other land and he has constructed the house on his own land. The respondents have also placed on record the PanchnamWprepared on 07- 11-2002 to show that their exists municipal land admeasuring 0.50 acre, 1\ .^' •^ il'!!;llii< llliii". BBIiH Rffli'sn" SK^ 81EII: 111 *' f.:: Khasra No.1114/1 and 0.11 acre, KhasraNo.1115/2 of Patwari Halka No.20 at Village Sarkanda. However, both the documents filed by the petitioner as well as by the respondents aresubsequent to the date, on' which, part of the structure owned bythe petitioner was demolished. Therefore, one thing is very clear that on the date when demolition had taken place, therewas no material ayailable with the respondents to come to the conclusionthat the petitioner had ehcroached upon the municipal land. According to the version of the petitioner, a part of the building was demolished by the respondents whereas according to the version dfthe respondent No;1, the petitioner having been informed regardihg encroachment, he himself demolished a part of the building structure by employing his labour and in order to remove the beam, which could not be removed manually, on his request, exeavator was provided to remove the beam. The circumstances of the case do not rule out correctness of the averments made and the stand taken by the petitioner that the respondent / . • authorities have demolished the structure and that he himself has not removed the structure. However, atthe sametime, itcannot be ignored that the retum filed by the respondent No.1 is supported by an affidavit of a responsible officer of the rank of Sub Divisional Magistrate. At more than one place in the return, it has been categorically averred that upon being informedthat the petitioner had encroached, the petitioner himself demolished a partof his building structure manually by empldying labours and the respojident authorities did not demolish but they only provided excavator on the request of the petitioner to remove the beam. This further gives rise to the disputed qyestion offactas to whether demolition was carried oyt by the respondentsor by the petitioner himself. But the fact ^?;^- 10 lii '4 U. ';8 Jf 8t>.^._'1--i3 .. t' Tumane remains thatthere was no report ofanyeneroachment and no proceedings were drawn either under the Land Revenue Code or under the Municipal Corporation Act to the effect that the petitioner had either encroached upon- any government land orany municipal land. 14. In view of the aforesaid factual dispute, it would not be proper forthis Court to return any finding of fact without there being any fact finding enquiry in this regard. Therefore, the petitioner would be at liberty to file suit claiming appropriate Compensation by establishing that the officers and servants of the respondents demolished the construction raised by the petitioner. 15. Accordingly, this petition is partly allowed. The respondents are hereby restrained from demolishing the existing structure/building/house of the petitioner or to remove the petitioner from his existing possession without taking recourse to the appropriate proceedings and issuing notice to the petitioner required under the law. In respect of compensation, the petitioner would be at liberty to take recourse to remedy of filing civilsuit before the Civil Court of competent jurisdiction claiming compensation in respect oftheloss sustained by him on account of demolition. There shall be no orderas to costs. ___ , Sdl- : . ,••.,.... : , iaanindraMohanShrivastaya ^ lli:ii i::