.ft RB K:K' HIGH COURT OF JUDICATURE. CHHATnSGARH AT BILASPXTR PETCTIONER; Writ Petition No. 2182 of 2003 Sorkar Singh, S/o Badri Prasad Agedi about 50 yeers, R/o Village - Jataghcrra, Tehsil bhamdha, District &UT9. ^.; RESPON&ENTS; Versus 1. State of Chhattisgarh, Throigh - The Secretary, Revenue Department, D.K.S. Bhawan, Raipur (C.6.). President, Bocrd of Revenue, Chhattisgarh (€.©.). Sub Divisional Officer, &ur9 (c.e.). Tehsildar, Dhomdha, &istrict: [>ur9. POSTFOR ORDERON 16th bECEMBER. 2003 Sd/- L.C.Bhadoo judge ^ 1l!'i"li!)!!"'"lilWn:' ,li!i'<,l ?^:E^^^^^^ S1 ® u HI6H COUKT WJU&ICATURE. CHHAmS6ARH AT BILASPUR Writ Petition No. 2182 of 2003 PETETIONER: Sarkw Singh, S/o Badri Prasad Aged about 50 yecrs, R/o Village - Jatagharra, , Tehsil Dhamdha, bistrict Qurg. RESPONDENTS! Versus 1. State of Chhattisgorh, Throigh - The Secretary, Revenue Department, b.K.5. Bhawan, Raipur (C.Q.). President, Boo'dof Revenue, Chhattisgarh (€.©.). Sub Oivisional Officer, C>urg (C.©.). Tehsildar, Dhamdho, District; Dur^. Shri Ajay Shrivsstwa, Advocate for the petitioner. Shri Ranbir Singh,$ovt. Advocate for the State/respondents 1, 3 and 4. Before; Hon'ble Mr. Justice L.C. Bhadoo. J. ORDER (Possed on/^,t>ecember, 2003) 1. By this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has challenged the order dated 9-7-2033 passed by the Board of Revenue in Appeat case No. 1062/A-68/2002-2003. order dated 9-5-2003 passed by the Sub Divisional Officer, burg in case No. 4-A/68/2002-20)3 and order dated 29-10-2002 passed by Tehsildar, bhamdha in case No. 5-A/68/2(X)2-2003. The petitioner''s case is that all the three orders passed by Bocrd of Revenue, Sub. bivisional Offlcer and the Tehsildar I-1 agoinst the prineiple of nart-ural justice and ignoring the earlier decisions possed in respect of the disputed land. The proper opportunity wos not given to the petitioner to defend his cose. 6/en the full particulars of the land including map and date of encroachment and the date of the report was not mentioned in the show cause notice. The order was passed hurriedly without giving proper opporl'unity to the petitioner. Tha statements were recorded by the Tehsildar in a printed form ond no opportunity for ct'oss-examinotion was given. The Board of Revenue passed theimpu9ned order without callin9 for the records. The petitioner being an iltiterofe viltagsr wcs not oble to maintain the record. The respondents ought to have remanded bcek the matter fo Tehsildar to see whether ony encroochment case wcs previously instituted in respect of the land in question and the decision of the Civii Suit No. 33-A/86 passed by the 4111 Civil Judge, Class-2, t>urg on 23-12-1987 was not considered, fherefore, orders be set-aside. I hove heard the leorned counsel for the parties. .4 perusat of the Annexwes shows that PatwiB'i Halka made a report Annexure-P/5 to Tehsildor. about the illegal encroachment by the petitioner on ©overnment land bearing Uissra No. 607/1, Rakba 2.(X) h. by corwerting it into a field. On this, show-cause notice, Annexure-P/6 issued by Tehsitdar and thereafter Tehsildar recorded the stotement of Patwari and of the petitioner Annexure-P/7 ond passed the order dated 29-10-2002. A perusal of the order dated 9-5-2003 pa^ed by the learned Sub Oivisional Officer reveals thttt the points were raised on behalf of the petitioher that eot'lier fllso r-^Qrding the same land encroachment proceedings were initiated which was diallenged before the Civi! Cour-t and the Civil Court declared thelorder of- r: 7. Revenue Authority as illegol. The learned S.t>.0. has mentioned that the certifiedeopy of the order was not filed and any other relevant Revenue record was also not filed to show that the land jn question was declin'ed as Bhumiswami land. It has further been mentioned that the petitioner hcs said that the lanc! in.question was in possession of his maternal grand father*. But in this connection no document has been filed that the land in question was in possessjon of the family of the petitioner cmd his possession is not since last 6 years, whereas the petitioner's case is that the petitioner and his aneestors were in possession of the land in question even before the enactment of the Chhattisgarh Land Revenue Code, 1959 and the leamed Revenue Board after relying on the record of Tehsildar dismissed the appeal, A certified copy of the judgment of -the Civil Court dated 23 &eeemberl987hasbeen produced as Annexure-P/9 inwhich Suryapraktsh's right rqarding land bearing Khasra Nos. 171,174, 176, 192/2. 19Z/3. 192/4 and 192/5. total area 30.57 acre was declared, and it wos deciared that this land was in possession of Surprakash. The petitioner's cloim is that before the abolition of Malguja-! acivil suit wasfiled by Chainsirgh, Shiv Singh, Bolir-dm ond Umed Singh. Choinsingh was the brother of the petitioner's father. Suryaprakash also filed the civil Suit No. 33-A/6 which was decided on 13-12-87. ^ The main argument of the learned counsel for the petitioner is that the documentsof the petitioner were nat considered by the Tehsildar, Sub Divisional Officer and Board of Revenue and no proper opportunity wcss given to the petitioner to produce the documents. Since the petitioner is claiming that the Judgment passed by the Civil Court Annexure-P/9 relates to the Ismd in question, in the circumstonces', I am of the opinion that it is proper to remand the case to the Tehsildar for conducting an enquiry about the claim of the petitioner whether his ancestocs were in possession of the land in question since long ond whethar l^ HlB I^ A the land in question is the same land whjch was declwed as Bhumiswami land of Surya Prakash in the Civil 5uit No. 33-A/86 by +he 4* Civil Judge, Closs-II, burg by its order dated 23-12-1987. 9. Th& Teshildar is directed to decide the matter after givirg ful! opportunity to tiie petitioner to prove his ccse and to furnish his documentary evidence showing his right or* title about the land in question. Even though the Section 248 of the Chhcttisgarh Land ftevenue Code 1959 envisages that " if any person who unauthorisedly takes or remains in possession of any unoccupied land, obadi, service Idnd w upon any land which is the property of the Sovernment may be summarily ejected by order of the Tehsildar." As per the provisions of this Section Tehsildar is required to conduct the summary enquiry. But when the petitioner is claiming that the land in question is in possession of the petitioner since his ancestors and for that purpose he wants to produce the judgment of the Ciyil Court', the Tehsildar oight to have given proper opportunity to the petitioner to prove his case by adducing the documentary or otiier evidenee. 10. In the rssult, for the foregoing reasons, the orders passed by the learned Tehsildar, Sub &ivisional Offieer and Boord of Revenue are set aside and quashed. The case is t'emanded back to the Tehsildar, Dhamdha to dedde the matter after giving full opportunity to the petitioner to adduce documentary or other e'/idence to prove his title or ri9ht on the Idnd in question. II. The certified copy of the judgment dated 23-12-1987 passed by the 4 Civil Judge, Class-2, Durg, may be retumed to the petitioner on filing a Photostat copy of the same by the petitioner for production of'the same before the Tehsildar. 12. With these observations and directions, the writ petition is disposed of. . ; Sd/- LC.Bhadoo Judge