Dev Prasad Mishra v. State Of Chhattisgarh And ORS.
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
m @ CHHATTISGARH WRIT PETITON (C) N0. W H [2014 MI'XIAW V Dev Prasadf S/o Shri Bhikam PETITION ER Prasad Mishra, aged about years, R/o Sirgitti, Tahsil & District Bilaspur (C.G.)
Versus
RESPONDENTS l.
State of Chhattisgarh, Through:
Secretary, Department Revenue, Mantralaya, Mahanadi Bhawan, Naya Raipur (C.G.) 2.
Collector, District Bilaspur (C.G.) 3.
Sub Divisional Officer (Revenue) Bilaspur, District Bilaspur (C.G.) 4.
Tahsildar, Biiaspur, District Bilaspur (C.G.) Wi WRIT PETITION UNDER ARTICLE 226 227 OF THE CONSTITUTION OF INDIA
WWm' mwmmmrmmmmwmwmmwnw W HIGH COURT OF CHHATTISGARH : BILASPUR (y WRIT PETITION (Ct NO.1911 OF 2014 PETITIONER Dev Prasad Mishra
Versus
RESPONDENTS State of Chhattisgarh and others Post for pronouncement of orders on the (Mday of February, 2015 Prashant Kumar Mishra Judge
HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (C) NO.1911 OF 2014 PETITIONER Dev Prasad
Versus
RESPONDENTS State of Chhattisgarh and athers Single Bench : Hon'ble Shri Justice Prashant Kumar Mishra Present :- Ms. Renu Kochar, Advocate for the petitioner. Shri S. Rathore, Dy. Government Advocate for the State.
ORDER
(Passed on this iO'II'day of February, 2015) Heard learned counsel for the parties.
1.
seeking quashment impugned warrant arrest issued by the Sub Divisionai Officer (Revenue), Biiaspur [for short 'the SDO (R)'] on 07.08.2014 in execution of the order passed against the petitioner under Section 248 of the Chhattisgarh Land Revenue Code, (for short 'the Code') respect encroachment, 2.
Ms.
Kochar, learned counsel appearing petitioner, would submit that an application under Section 57 (2) of the Code ciaiming title over land pending consideration before Tehsildar, .Bilaspur, therefore, the SDO (R) should not have issued warrant of arrest against the petitioner.
3.
It appears the petitioner is an encroacher of government grass iand admeasuring 6930 sq. ft. bearing Khasra No.511/1 Er? at village Sirgitti, Biiaspur.
Though not filed copy directing removal of encroachment, however, the documents annexed
with the writ petition would indicate that an order under Section 248 of the Code has been passed against the petitioner and execution thereof the order Annexure-P-1 has been passed for sending him to civil jaii.
Petitioner has referred two writ petitions preferred by him. first writ petition is WP No.2654 of 2005 and the second writ petition is WP of 2006.
This Court summoned records both petitions while dictating this order.
first petition i'e'
WF?
No.2654 of 2005 was, in fact, decided on merits by a detailed order dated 11.7.2005.
Since not placed detailed facts before this Court in this writ petition, it would be apt to refer the entire order passed by this Court while deciding WP No.2654 :
"11 07.2005 Smt. Renu Kochar, counsel for the petitioner. Shri Parag Kotecha, Panel Lawyer Respondents/State.
Heard on admission.
preferred this petition under Article 226/227 Constitution India questioning Tehsildar, Bilaspur dated 03.12.2001, of Sub Divisional Officer, Bilaspur dated 20.05.2003 also dated 21.01.2004 passed by the Board of Revenue, Chhattisgarh. The case of the petitioner is that on 02.10.1948 elder brother petitioner's father namely Ayodhya Prasad purchased a land area 0.07 acre situated Khasra No.511/01, Mouja Sirgitti, Patwari Halka No.23, R.l.
Circle, Bilaspur from then Malgujar namely Ramlal on a sale consideration of Rs.85/- and the sale deed was executed on a stamp of Rs.1/-.
However, the said land has been shown in the revenue record as grass land in the name of Devi Prasad, who was the then Malgujar.
According to Khasra No.P-1 total area Khasra No.511/01 was 2.18 acres then Malgujar Ramlal during his life time sold 54 dismil land various other persons including Ayodhya
fl t?
Prasad as we" as Sahasram who purchased 9 dismil land. The land could nct be mutated in the name said Ayodhya Prasad and he died the year 1976.
Even after the death of Ayodhya Prasad his legal heirs also could not be mutated in their names.
Thereafter herein purchased said land year 1984 from the legal heirs of said Ayodhya Prasad in consideration of Rs.1,000/-, and he also could not be mutated in his name.
Respondent No.5 made a complaint Tehsildar against the petitioner that he has encroached upon government grass land constructed a house, upon which a Case No.2/A13/2000-2001 was registered between Onkar Prasad Vs.
Dev Prasad.
However, the said case has been dismissed for want prosecution, therefore, elder brother respondent No.5 again made a complaint before the Tehsildar that complaint case Tehsildar passed the order of dispossession of the petitioner and imposed fine Rs.400/-.
view Tehsildar deposited fine amount on 03.12.2001.
petitioner challenged the impugned before Sub Divisional Officer, Bilaspur by way preferring an appeal, but same was dismissed.
Being aggrieved by Sub Divisional Officer the petitioner filed an appeal before the Board of Revenue and Board of Revenue without appreciating thematerial facts available dismissed the appeaL l have perused Sub Divisional Officer, Bilaspur dated 20.05.2003.
Perusal shows that after hearing counsel herein Sub Divisional Officer perused the record of court below and on the basis special enquiry report reached conclusion that complainant i.e.
respondent No.5 both have encroached upon government land bearing Khasra No.511/1A further observed that the court below passed the order against after giving him sufficient opportunity of hearing as well as also to lead evidence. Against that order the petitioner approached the Board of Revenue, who has also affirmed the said order. During the course of arguments learned counsel submitted that already filed a civil suit court of learned Civil Judge for grant of permanent injunction in which State Government is also a party.
In first instance, already approached civil court secondly, there
Q/\D \ concurrent finding of the SDO (Revenue) & Board Revenue that the petitioner has encroached upon the government land, whereas claiming the said iand to be of his own.
In view of the fact that disputed facts are involved in this case, which cannot be enquired into jurisdiction, therefore, directed avail appropriate remedy available to him under the law.
In view above, petition stands dismissed.
Consequently, M.
(W.) P.
No.2184/O5 & LA.
No.5283/05 also stand disposed o The second writ petition i.e. WP No.472 of 2006 was also dismissed as infructuous after briefly referring facts of the case and challenge made thereunder.
The said order dated 18.11.2010 is also reproduced hereunder :
"Shri Sunil Sahu, counsel for the petitioner. Shri R.R.
Sinha, Panle Lawyer State/ respondents.
ORAL ORDER (18.11 .2010) The petitioner claims to be in possession of 6930 sq.
ft. of Government land bearing Khasra No.511/1 at village Sirgitti, District Bilaspur.
An order of removal of encroachment was passed against him by Tahsildar, Bilaspur on 03.12.2001, which was affirmed by the Sub Divisional Officer, Bilaspur on 20.05.2003 by Board Revenue on 21.01.2004.
Petitioner's petition bearing W.P.
No.2654/05 questioning validity of the orders passed by Revenue Authorities was dismissed by this Court on 11.07.2005 (Annexure P/3), however liberty was reserved in favour of the petitioner to raise the matter in Civil Suit.
(2) petitioner thereafter preferred Civil Suit the Court of lll Civil Judge Class-ll, Bilaspur.
Copy of the plaint is annexed with the writ petition as Annexure P/9.
One of the reliefs claimed in the writ petition is for issuance of a decree to cancel the warrant of arrest against him issuedlby Sub Divisional Officer execution of the order of dispossession issued against him.
"f "
(3) It is informed at the bar that the suit has been dismissed during pendency of the petition a Second Appeal is pending in this Court.
in view of the above, this Court is of the opinion that the instant writ petition become infructuOus because passed by the Civil Court in exercise of powers under Order 39 Rule 1 & 2 of the C.P.C. has merged in the final passed Civil Suit directing for sending petitioner to civil prison was also under challenge suit which too been dismissed.
(4) Consequently, instant petition dismissed as infructuous.
petitioner, if he so desires, may seek appropriate interim pending Second Appeal."
Second Appeal No.239 of 2009, which was withdrawn on 11.12.2013 with liberty to move before the Revenue Authority, was preferred by the petitioner to call in question the judgment and decree passed by the Courts below dismissing his suit claiming declaration of title on plea adverse possession.
After withdrawing second appeal, the petitioner has preferred an application under Section 57
(2) of the Code claiming title over the land. Section 57 of the Code applies where a person claims title over the land, which otherwise recorded as Government land, however, petitioner's civil suit having already been dismissed against which the petitioner having withdrew the second appeal, the decree of dismissal of his suit has become final and binding on him. A liberty to agitate the issue before the Revenue Authority would not nullify or evaporate the findings recorded by the Civil Court, ln the opinion of this Court, the petitioner has successfully deferred his eviction from the subject land initiating litigation one after another
é};
even though he has no right, title in the subject land.
The petitioner appears be a seasoned cantankerous iitigant.
Except referring one or the other proceeding, neither any pieading been made nor any ground has been urged to assaii the iegaiity and validity of the order issuing warrant of arrest against him. There absolutely no whisper petition as to when original under Section Code was passed whether the said order was Chalienged by the petitioner before the superior Revenue authorities.
As long as the original order under Section of the Code stands, the SDO (R) to execute no can be issued restraining him discharge his statutory function unless an illegality pointed out issuance such warrant. Mere pendency of one or the other proceeding would not denude the Revenue authority of its power to execute an order passed by it at an earlier point of time.
petitioner has concealed material facts before this Court.
It settled by the Supreme Court that the jurisdiction under Article 226 of the Constitution of India being discretionary and equitable jurisdiction, it should not be exercised in favour of a person who has withheld or failed to disclose material facts before this Court. The Supreme Court K.D.
Sharma v.
Steel Authority India Limited and 0thers1, held thus :
34.
jurisdiction Supreme Court under Article 32 and of the High Court underArticle 226 of the Constitution extraordinary, equitable discretionary.
Prerogative writs mentioned therein are 1(2008) 12 scc 481
issued for doing substantial justice.
lt is, therefore, utmost necessity that approaching writ court must come with clean hands, put forward all facts before court without concealing or suppressing anything and seek an appropriate relief.
lf there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.
38. The above principles have been accepted our legal system also. As per settled law, party who invokes extraordinary jurisdiction this Court under Article 32 or of a High Court under Article 226 of Constitution is supposed to be truthful, frank and open.
He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose"
facts he likes disclose to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true complete (correct) facts.
If material facts are suppressed or distorted, very functioning courts exercise would become impossible.
petitioner must disclose all the facts having a bearing on relief sought without any qualification.
This because "the court know law but not facts".
s 10.
As a sequel, the writ petition, sans merit, is liable to be and is hereby dismissed.
No order as to costs.
Sd/- Prashant Kumar Mishra Judge Gowri waxwt