HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra IVIohan Shriyastava, J. W.P.fC) N0,4616/2007 Petitioners RespQndente Dr. Pradeep Kumar Bajpai and Another Versus State of Chhattisgarh and others (Writ Petition under Article 226 of the Constitution of India) Present: - Shri Jitendra Pali, counsel for the petitioners. Shri Ajay Dwivedi, Deputy Government Advocate for the State./respondents No.1 , 2,4&5. Shri A. S. Kachhawaha, counsel for respondent No.3. ORALORDER (Passed on 23-02-2011) Heard. 2. Respondent No.3 has filed its reply. 3. Learned State counsel submits that though time was granted by this Court earlier, the reply could not be filed and he prays for further time to file reply. 4. Considering the nature of grievance raised before this Court, 1 deem it proper to dispose off the matter finally without granting further time to the respondents No.1,2, 4 & 5/State. 5. The grievance of the petitioners as set out in the petition is that the respondent-Sub Divisional Officer has issued a notice to the petitioners on 20-07- 2007 (Annexure P-1 & P-2) wherein it has been alleged that the petitioners have encroached upon Bemetara Balsamund Chandnu Road on Kilometer 1/i and the petitioners have been required to remove so-called encroachment within five days. It is the assertion of the petitioners that the petitioners have constructed the house on the land owned by them within the boundary of their own plot without ..-2- - ^ L- encroaching upon the road as alleged. It is also the case of the petitioners that the construction which has been made, is after obtaining due permission and sanction from Municipal Council, Bemetara and according to the petitioners, while raising such construction, he has not violated any of the conditions of building permission. 6. Submission of learned counsel for the petitioners is that without there being any order passed either by the Municipal Council in accordance with the provisions contained in Chhattisgarh Municipalities Act or by the Tehsildar under Section 248 of the Chhattisgarh Land Revenue Code, the Sub Divisional Officer could not have proceeded to issue such a notice that too, without hearing the petitioners or giving them any opportunity. He further submits that after receipt of the said notice, the petitioner submitted a reply to the Sub Divisional Officer stating that his construction is in accordance with law but the same has also not been considered. Therefore, the petitioners approached this Court. 7. Learned State counsel submitted that the contents of the notice (Annexure P-1) clearly show that the petitioners have encroached upon the public road, and therefore, the Sub Divisional Officer was fully entitled to issue such a notice. 8. Learned counsel for the respondent-Municipality has submitted that the demarcation was made on 19-08-2007 by the Officers of the Municipality and the State authorities in the presence of concerned Tehsildar, Halka Patwari and Revenue Inspector and the present petitioner. A Panchnama was prepared and annexed as Annexure R-3/1. A report was prepared and submitted by the concerned Revenue Inspector, Bemetara on 27-08-2008 wherein it has been stated that the petitioners have encroached the land bearing Khasra No.1205, which is a government land reserved for road and total 2079 Square Feet land has been encroached by the petitioners by way of constructing the commercial •<&«., R •V&;s- t, ~" !-!?»" :»fs' M ~'u. •3, c' ^ complex. He relies upon demarcation report (Annexure R-3/2) and copy of the Revenue Documents, which is annexed as Annexure R-3/3. He further submits that even the construction made by the petitioners is in excess of the permission granted and in fact the petitioners have made construction over the marginal open space which he was required to keep vacant. 9. From the submission made by learned counsel for the parties, pleadings and documents which are on record, it is revealed that there are certain allegations against the petitioners regarding encroachment upon the government land which is reserved for road, on account of which, the Sub Divisiona] Officer had issued the impugned notice dated 20-07-2010 (Annexure P-1 & P-2). However, before issuing such a notice, it ought to have held proper enquiry into the allegation of encroachment over the government land reserved for road as required under Section 248 of the Chhattisgarh Land Revenue Code. Moreover, if the Municipal Council is of the opinion that the petitioners have acted in violation of building laws and the provisions contained in the Municipalities Act in the matter of construction of his building, the Municipal Council has authority to issue proper notice under the provisions of law affording opportunity of hearing to the petitioner. In the absence of any proceedings drawn against the petitioner, the Sub Divisional Officer was not justified in issuing such a notice to the petitioner. It is also submitted that the petitioner submitted a representation to the Sub Divisional Officer. 10. Under these circumstances, it would be proper to reserve liberty to the respondent authorities to take appropriate.steps before proceeding to remove or demolish the construction raised by the petitioner. In respect of the allegation contained in the notice that the petitioner has encroached upon the government land reserved for road, it would be open for respondent No.S-Tahsildar to draw ^.;;:^-. :i%, R •<!%; N^. <\ !L appropriate proceedings against the petitioners and pass orders thereon. The notice dated 20-07-2010 (Annexure P-1 & P-2) therefore shall not be given effect to, unless there is a clear finding of encroachment and order passed by the Tehsildar in appropriate proceedings under Section 248 of the Chhattisgarh Land Revenue Code. 11. With the aforesaid observation, the petition is finally disposed off. 1» Sd/- Manindra Mohan Shrivastava Judge ^