For Petitioners : Mr. Harsh Mandar Rastogi, Advocate holding brief
on behalf of Ms. Supriya Upasane, Advocate
For State : Mr. Ujjawal Choubey, Panel Lawyer
Hon'ble Mr. Justice Amitendra Kishore Prasad
1. The petitioners have filed this writ petition seeking following
b. This Hon'ble Court may be pleased
to pass an order quashing the memo
dated 5.7.2021 issued by the
respondent Tahsildar, Simga being
perverse and not sustainable in law.
c. This Hon'ble Court may be pleased
to pass an order directing the
respondent authority concerned to
issue lease in favour of the petitioners
in respect of the land in question in their
possession in the facts and
circumstances of the case.
d. Cost of the proceedings.
e. Any other writs and directions that
may be deemed fit and just in the facts
& circumstances of case."
2. Facts of the case, as emerging from the writ petition, are that the
petitioners belong to the traditional potter (kumhaar) community
and are engaged in their occupation as potters for earning their
livelihood. The State Government, with a view to promote and
sustain the traditional cottage industry of the potter community,
issued a memo dated 26.09.2006 directing all Collectors in the
State to ensure reservation of 5 acres of land in every Gram
Panchayat for members of the potter community. In furtherance of
the said policy decision, action was taken under Section 237 of
the Chhattisgarh Land Revenue Code, 1959, and directions were
issued to reserve suitable land for the said purpose. Pursuant
thereto, respondent No.4, in its meeting dated 01.06.2007,
earmarked and reserved five acres of land for the potter
community. Prior to such reservation, the petitioners had already
submitted an application seeking allotment of land admeasuring
approximately 2 hectares bearing Khasra No. 286 situated at
Patwari Halka No. 19. Upon receipt of the application, due
process was initiated, including issuance of a proclamation
inviting objections from the public. Despite completion of the
preliminary process and reservation of land for the potter
community, no formal lease/allotment was granted in favour of the
petitioners for a considerable period. The petitioners, being in
possession of the said land and carrying out their traditional
occupation thereon, made several representations to the
concerned authorities, including the Member of Legislative
Assembly and revenue authorities, seeking grant of lease rights.
While the matter of allotment was still pending consideration and
objections had already been invited, the respondent Tahsildar
abruptly issued a memo dated 05.07.2021 under Section 248 of
the Chhattisgarh Land Revenue Code, treating the petitioners as
encroachers and directing removal of their possession from the
land in question. It is further evident from the panchnama dated
08.07.2021 that the land admeasuring five acres reserved for the
potter community was acknowledged, and encroachments on
other portions of land were removed, thereby indicating the
distinct identification of land meant for the petitioners' community.
Aggrieved by the sudden initiation of eviction proceedings despite
the subsisting policy decision and pending application for
allotment, the petitioners have approached this Court.
3. Learned counsel for the petitioners submits that the petitioners are
members of the potter community and are traditionally engaged in
their occupation for sustaining their livelihood. It is contended that
the State Government, vide memo dated 26.09.2006, has taken a
conscious policy decision to allot 5 acres of land in every Gram
Panchayat to the potter community so as to promote their
traditional occupation. It is further submitted that, in pursuance of
the said decision and in exercise of powers under Section 237 of
the Chhattisgarh Land Revenue Code, the concerned Collectors
were directed to reserve suitable land for the potter community.
Accordingly, the land in question has already been earmarked and
reserved for the petitioners' community by the competent
authority. Learned counsel submits that the petitioners are in
settled and peaceful possession of the said land and have been
carrying out their occupational activities therefrom for a long
period. In light of the reservation of land and their possession, the
petitioners have also applied for formal allotment/lease of the said
land, which is still pending consideration before the competent
authority. It is emphasized that even objections were invited in
respect of such allotment, thereby indicating that due process is
underway. It is vehemently argued that, during the pendency of
the petitioners' application for allotment, the respondent Tahsildar
has illegally issued a notice under Section 248 of the Code for
removal of alleged encroachment, which is arbitrary, unjustified,
and contrary to the State Government's own policy decision.
Learned counsel contends that the petitioners cannot be treated
as encroachers when the land has already been reserved for their
community pursuant to a valid governmental decision and when
their applications for allotment are pending consideration. The
impugned action, therefore, is perverse and liable to be set aside.
It is lastly submitted that if the petitioners are dispossessed from
the land in question, they will be deprived of their sole source of
livelihood and would be rendered destitute, causing irreparable
hardship, especially in the prevailing socio-economic conditions.
Hence, interference by this Court under its writ jurisdiction is
warranted.
4. Learned State counsel opposes the submissions of the petitioners
and contends that mere reservation of land pursuant to
Government memo dated 26.09.2006 does not confer any legal
right, title or interest in favour of the petitioners unless a formal
allotment/lease is granted in accordance with law. It is submitted
that the petitioners are unauthorized occupants over Government
land and are rightly proceeded against under Section 248 of the
Chhattisgarh Land Revenue Code. The action of the Tahsildar is
in accordance with law and no interference is warranted by this
Court.
5. I have heard learned counsel for the parties at length and have
perused the material available on record.
6. It is not in dispute that the State Government, vide memo dated
26.09.2006, has taken a policy decision for reservation of 5 acres
of land in every Gram Panchayat for the benefit of the potter
community so as to promote their traditional occupation. It is also
apparent that pursuant to such policy decision, the land in
question has been earmarked for the said purpose and the
petitioners, who belong to the potter community, are stated to be
in possession and have already applied for allotment, which is still
pending consideration.
7. Considering the aforesaid factual matrix and without entering into
the merits of the rival claims, this Court is of the opinion that ends
of justice would be met if the competent authorities are directed to
take a decision in light of the aforesaid Government policy.
Accordingly, the concerned authorities are directed to consider the
case of the petitioners in terms of memo dated 05.09.2006 and
take an appropriate decision with regard to allotment of land in
question, strictly in accordance with law.
8. It is made clear that such exercise shall be undertaken after
affording due opportunity of hearing to all concerned parties of the
village and after inviting and considering objections, if any. It is
further directed that till finalization of the aforesaid exercise, the
petitioners shall not be dispossessed from the land in question.
The entire exercise shall be completed within a period of 60 days
from the date of production of a certified copy of this order.
9. The petitioners are directed to produce a copy of this order along
with all relevant documents before the competent authority within
a period of 15 days from today.
10. With the aforesaid observations and directions, the writ petition
stands disposed of.
No order as to costs.
Sd/-
(Amitendra Kishore Prasad)
Shayna Judge
