INTHE HIGH COURT OF CHHATTESGARH BILASPUR WRFT PETITION (C) N0. 3o^^ OF 2009 PETrrCONER : •••^ Harish Chandra Sin9hania, S/0 Banshidhar Sin9hania, aged about 63 years. R/0 Mission Road, Korba, Drstrict- Korba. (C.6.) VERSUS RESPONbENTS : ,.^&// ^y (1) State of Chhattisgarh, through Collector, Nazuf, Korba, District- Korba. (C.^.) (2) Tahsildar, Nazul, Korba. bistrict- Korba. (C.G.) (3^ Naib Tahsildar, Korba, bistnct- Korba, (C.&.) ^^~^/<^67^ 'i^s^ ^ ^ (4) Municipal Corporation, Korba -^ through Chief Municipat Officer, Korba, District- Korba, (C.6.) WRTT PETmON U/A 226 OF THE CONSmTUTZQN OF INDIA %\ HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HON»BLESHR1MANINDRAMOHAN SHRIVASTAVA, J. PETITIONER Writ Petition t0 No.3044 of 2009 Harish Chandra Singhania RESPONDENTS Versus State of Chhattisgarh & Ors. Petition u/Article 226 of the Constitution of India Appearance: Shri Sunil Sahu, counsel for the petitioner. Shri Suryakant Mishra, Panel Lawyer for the State/respondents No. 1 to 3. Shri Sourabh Sharma, counsel for respondent No.S/Municipal Corporation. ORAL- ORDER (Passedon 15.3.2011) Heard. 2. This petition has been filed by the petitioner aggrieved by the action of respondents/State authorities, whereby a part of the building constructed by the petitioner has been demolished on 18.6.2009. 3. The case of the petitioner is that he is the recorded owner of land admeasuring 15 decimal situated in khasra No.823/20 & khasra No. 824/2, which he purchased way back in the year 1975 by :;"w^ "^^^•"^"^ ^- •~^.<:,.^^;^' -2- ^ way of registered sale deed dated 12.5.1975 by one Smfr. Budhwara Bai. Earlier, on the basis of some complaint, the Tahsildar initiated proceedings against the petitioner under Section 248 of the Land Revenue Code (hereinafter referred to as Kthe Code") in Revenue Case No.57/A/08/90-9-l. However, in the final order passed on 4.6.1991, after holding enquiry, recording evidence and obtaining report, the Tahslidar concluded that encroachment by the petitioner has not been established. 4. In the year 2006, the petitioner applied for grant of building permission and vide order dated 20th June, 2006, the petitioner was granted building permission. Further case of the petitioner is that thereafter the petitioner constructed rooms in accordance with the permission granted to him. 5. Again a new show-cause notice was issued to the petitioner alleging encroachment on Govt. land situated in khasra No.824/1, the petitioner submitted his reply on 12.6.2009, stating that he has not encroached upon the Govt. land and the construction has been raised by him within the four-corners of the land belonging to him. The case was directed to be listed for recording statement of the petitioner on 22.6.2009, but in the meantime, on 18.6.2009, a team of administration arrived at the spot and demolished a part of construction raised by the petitioner. -3- V7 6. Learned counsel for the petitioner argued that the action of respondent -State authority in demolishing a part of construction raised by him is not only illegal, but an act of high-handedness. He submits that no such action of demolition could have taken place in the absence of there being ai^ order of removal passed by the Tahsildar in exercise of powers conferred under Section 248 of the Code. He further submits that the show-cause notice was issued, to which the petitioner submitted his reply and his statement was to be recorded on 22.6.2009, which clearly shows that the proceedings were not even completed, much less any conclusion or an order by the Tahsildar that the petitioner has encroached upon the Govt. land. It is argued that knowing fully well that the proceedings are pending, the action of respondent - authority in proceeding to demolish a part of the structure clearly reflects upon the malafide action of the State-authority. Learned counsel for the petitioner therefore submits that the respondents be restrained from taking any action against the petitioner on any allegation of encroachment and further that the petitioner be suitably compensated for the damage which has been caused to his building. 7. On the other hand, learned counsel for respondents No. 1 to 3/State submitted that the demolition of a part of the structure raised by the petitioner was based on a spot inspection report dated 26.5.2009 submitted by the Revenue Inspect (Nazul) before the Tahsildar, wherein, it was stated that the petitioner had -4- ^ encroached upon a part of the Govt. land and construction was raised. He also submits that the said report was based on spot inspection which was carried out by the Nazaul Inspector in the presence of inhabitants of the area, as is evident from the panchnama placed on record. He further argues that as the petitioner was found to be an encroacher, the action of demolition of a part of building to the extent it encroached upon the Govt. land, is neither illegal nor malafide. He further submits that in so far as prayer for grant of compensation is concerned, as, a part of building has already been demolished, the petitioner may take recourse to appropriate remedy to claim damages because in writ proceedings extent of damages cannot be quantified. 8. Learned counsel of the respondent -IVtunicipal Corporation submits that the action has been initiated by the State- authorities and not by the Municipal Corporation. He submits that the show-cause notice was issued to the petitioner by Tahsildar in exercise of powers under Section 248 of the Code and the Corporation has not initiated any action towards demolition of the structure under any of the provision of the Municipal Corporation Act. 9. The petitioner has categorically averred and also placed on record the documents to the effect that he had purchased a land admeasuring 15 decimal situated in khasra No.823/20 & 824/2 by way of sale deed dated 12.5.1975. The name of the petitioner -5- has also been mutated in the revenue records in respect of the land purchased by him. The petitioner has also placed on record building permission granted to him on 20.6.2006 (Annexure P-3), by which the petitioner was permitted to raise construction. 10. It is also not disputed that in the past, the proceedings under Section 248 of the Code were initiated against the petitioner and in those proceedings, after making an enquiry, it was recorded by the Tahsildar that encroachment by the petitioner has not been established and the proceedings were therefore finally closed vide order dated 4.6.1991 (Annexure P-2). 11. It is also not dlsputed by any of the parties that fresh proceedings under Section 248 of the Code were initiated by the Tahsildar by issuing show-cause notice dated 6.6.2009 (Annexure P-4). The aforesaid notice states that the petitioner has encroached upon 120 square meter of Govt. land situated in khasra No.824/1. The petitioner was called upon to file his reply. The order sheets of the revenue proceedings opened by issuance of the aforesaid show cause notice dated 6.6.2009, filed by respondent No. 1 to 3, reveal, that on 10.6.2009, the petitioner has sought time for filing of reply and he was granted two days9 time. On 12.6.2009, the Tahsildar initially recorded an order sheet that as the petitioner is not represented, ex-parte proceedings are drawn and the case was directed to be posted for issuance of appropriate order of removal, on 18.6.2009. The order sheet, however, further records that -6- '^'--~:- ..;^^ ••^^:^y''' thereafter the petitioner appeared before the authority and filed reply which was taken on record and then the case was fbced on 22nd June, 2009 for recording the statement of the petitioner. On 22nd June, 2009, the order sheet records that on 18.6.2009, the encroachment removal squad, on the command of the Collector, has removed the encroachment and therefore nothing survives, and the proceedings are closed. 12. From the aforesaid pleadings and records it is crystal clear that though proceedings under Section 248 of the Code were initiated against the petitioner and the petitioner had also submitted his reply, no final orders were passed by the Tahsildar. In fact, the petitioner having submitted his reply on 12th June, 2009, case was fixed for recording statement of the petitioner on 22nd June, 2009. This clearly shows that respondent No.2 was fylly aware of the proceedings pending against the petitioner as he himself had drawn the proceedings. Without there being any final order of removal of encroachrnent passed in the proceedings initiated upon issuance of show-cause notice dated 6.6,2009, the action of the officers and staff of respondents 1 to 3 to demolish a part of structure of the petitioner by branding it as encroachment, is not only illegal but, if I may say so, a high-handed action. The order sheet dated 22.6.2009 records that the demolition was done under the instructions of the Collector. It is not known whether the fact of pendency of proceedings were brought to the notice of the Collector or not, but, one thing is certain that till the date -'.,f -7- action of demolition was undertaken, no order in terms of Section 248 of the Code was passed by the Tahsildar. The present case is a classic exainple of high-handed action of the State-authority in demolishing structure without following the procedure prescribed under the law. The power conferred on the Tahsildar under Section 248 of the Code is drastic in nature. Even without there being any decision as to whether the petitioner had actually encroached upon the Govt. land, the action of respondent authority in rushing to the spot where the structure was standing and pulling it down, deserves to be deprecated.It is worthwhile to note that in the past also, proceedings under Section 248 of the Code were drawn against the petitioner and those proceedings culminated with the finding that no case of encroachment is made out. 13. The present is not a case where the Corporation had initiated any action against the petitioner in exercise of powers conferred on it under the Municipal Corporation Act. The only basis for action against the petitioner was that he has encroached upon the Govt. land. The submission of learned counsel for the respondents- State that action was based on the report of Revenue Inspector, deserves to be rejected at the threshold for the reasons that the law does not permit removal of so-called encroachment on the basis of such report, but only upon statutory order to that effect passed by the Tahsildar in exercise of powers under Section 248 of the Code. The action of respondent No.2 and demolition -•^ ''% ^. ( -i 7".:-:3A^.' -8- ^^^ ^sy ']^3a^ •^ proceedings appear to be deliberate. The order sheet recorded, undertakes that there were instructions of the Collector. If that be so, it adds gravity to the misdeed committed by the officers of respondents No. 1 to 3. This Court would not accept a submission, in the absence of pleading, that the Collector had issued such direction without verifying as to whether there existed a statutory order under Section 248 of the Code. The glaring facts, which are floating on the surface of the case, clearly show that the petitioner has been victim of not only an illegal action, but a high-handed and deliberate action. 14. Ordinarily, where a demolition has already taken place, this Court would have directed the petitioner to take recourse to ordinary civil remedy to claim damages. However, in the present case, it is found by the Court that the public power and authority has been grossly misused and abused by the officers of the State, which has adversely affected a citizen in enjoyment of his right to property. True it is that the extent of damage caused to the building of the petitioner by such an action of demolition and the damages to which the petitioner is entitled cannot be gone into without recording evidence, yet this Court is having ample jurisdiction to award compensation to the petitioner, not in lieu of the actual damages to which the petitioner would be entitled in terms of loss suffered by him, but to provide relief against action ofpublic authorities, on a palliative measure. l',. '^ "i-:; i, -9- Q ^/ ^ '^^ 15. In the result, the petition is allowed and following orders are passed. (i) The respondents are hereby restrained from taking any action of deniolition against Ahe petitioner, except in accordance with law. The possession of the petitioner would not be disturbed in any manner in respect of fhe building and the land possessed by him including part of the land over and above which the demolition has taken place. (ii) The petitioner shall be entitled to a compensation of Rs.50,000/- from respondents 1 to 3. The petitioner may approach the Civil Court to seek damages. In the even of grant of damages under decree, if any, the amount as ordered to be paid to the petitioner by this Court shall be adjusted. (iii) ^Respondent No.l shall hold an enquiry and fix responsibility on the officer who are responsible for the action of demolition and take suitable action, including disciplinary action against erring officers. Praveen 16. Certified copy as per rules. Sd/- Manindra Mohan Shrivastava Jude