1 2025:CGHC:13427 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 1366 of 2012 1 - Anjuman Islamia Committee Dhamtari, Through Its President Sayeed Asfaq Ali Hashmi, Age About 50 Years, S/o Late Sayeed Ustab Ali, R/o Amapara, Dhamtari District Dhamtari Chhattisgarh. ... Petitioner(s) Versus 1 - State of Chhattisgarh Through The Secretary, Revenue Department, D.K.S. Bhawan, Raipur Chhattisgarh. 2 - Commissioner Raipur Division, At Raipur Chhattisgarh. 3 - Collector Dhamtari, District Dhamtari Chhattisgarh. 4- Sub Divisional Officer (Revenue) Dhamtari District Dhamtari, Chhattisgarh. 5 - Tehsildar Dhamtari, District Dhamtari, Chhattisgarh. 6 - Chhuni Lal Keshwani, ( Dead ) Through LRS- (A) Injana Keshrwani Wd/o Late Chunni Lal Kesharwani (B) Sunil Kumar Keshrwani S/o Chunni Lal Kesharwani, (C) Kailash Kumar Kesharwani S/o Chunni Lal Kesharwani All are R/o Ratnabandha Chowk, Beside of Gayyur Material Supplier, Dhamtari, District Dhamtari Chhattisgarh. ... Respondent(s) For Petitioner : Shri Manoj Paranjpe, Advocate. For State : Shri Ajit Singh, Govt. Advocate. For Respondent No.6 : Shri H.B. Agrawal, Sr. Advocate along with (A) to 6(C) Shri Rakshit Tiwari, Advocates. For Intervenor : Shri Ali Asgar, Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order reserved on 04.10.2024 Order delivered on 20.03.2025 1. The present petition has been filed by the petitioner challenging the order dated 24.04.2012 passed by the Additional Commissioner, Raipur Division, Raipur in case No.280/A-20(3)/2011-12 “Chunni Lal Digitally signed by INDRAJEET SAHU Date: 2025.03.21 16:56:05 +0530 2 Keshwani Vs. Anjuman Islamiya, Dhamtari” whereby the appeal filed by the original respondent No.6 Chunni Lal Keshwani was allowed and the order dated 05.02.2009 passed by the Additional Collector, Dhamtari was set aside and it was directed to remove encroachment from the subject land. 2. Brief facts of the case are that, the petitioner is a registered society registered under the provisions of Waqf Act, 1995. A lease was granted on 01.10.1911 in favour of Anjuman Islamiya Committee, as the the then was, for Idgah with respect to land admeasuring 2.60 Acres of Khasra No.209 situated at village Dhamtari. Although, at that time, the Halka Patwari was directed to mutate the name of petitioner in the revenue record, but for one or other reasons, their name could not be recorded till 1970. An application was filed by the petitioner on 21.06.1971 before the Tehsildar, Dhamtari for correction of revenue records as the land of Khasra No.209 area 2.60 Acre was still recorded as grass land. It is also mentioned in the order sheet dated 21.06.1971 that in case No.40-A/59/65-66 the Naib Tehsildar Dhamtari had submitted his report on 16.11.1964 before the Additional Collector, Raipur, for correction of revenue records and then on 17.05.1966 the Additional Collector, Raipur had passed an order and diverted the land of Khasra No.209 area 2.60 Acres as provided under Section 237 of MP Land Revenue Code. Accordingly, the Nistar Patrak was also directed to be corrected. It is also observed that in revenue appeal No. 354-A/37-62-63, order dated 04.07.1964, the Commissioner Raipur has also considered the petitioner as the owner of the said land, but the relevant revenue records could not been corrected and still 3 showing as grass land and in view of the orders passed by the revenue courts, the case was referred to Sub Divisional Officer, Dhamtari (in short, the SDO) for further instructions and confirmation of the earlier orders. On 04.10.1972 the SDO Dhamtari has observed that the orders have already been passed by the competent court and there is no need for any further confirmation, the title of the petitioner has been accepted by the authorities and in view thereof, necessary correction be made in the revenue records and the matter was remitted back to the Tehsildar, Dhamtari. Ultimately, on 31.03.1973 the Tehsildar Dhamtari has passed its order that the concerned Patwari has submitted his report dated 31.03.1973 that by the order dated 04.07.1964 passed by the Commissioner, Raipur, in Revenue Case No.348/A-6/1962-63 and the order dated 20.05.1966 passed by the Additional Collector, Raipur, the name of the petitioner has been mutated in the revenue records and therefore the proceedings of Revenue Case No.20/A-6/1969-70 was closed vide order dated 31.03.1973. 3. Since the lease granted to the petitioner was expired, he moved an application for renewal of the lease before the Collector, Dhamtari which was forwarded to Tehsildar for its report. On 26.10.2007 the Tehsildar Dhamtari referred the earlier report dated 30.01.2006 and forwarded the matter to the SDO Dhamtari for renewal of lease in accordance with law. In turn, the SDO referred the matter to Collector, Dhamtari, for further orders. 4. On 05.02.2009 the Additional Collector Dhamtari passed an order in Revenue Case No.2/A-20(3)/2008-09 observing that the land of Khasra 4 No.209 is recorded in the name of petitioner society Anjuman Islamiya Committee Dhamtari and concurring with the report submitted by the SDO Dhamtari, he recommended for renewal of lease granted in favour of the petitioner for a further period of 30 years, except 10000 sq. ft. of land out of Khasra No.209 plot No.6/3, as dispute with respect to that part of land was pending before the State Govt. and and the matter was again remitted to the SDO Dhamtari. On 10.02.2009 the matter was again sent to Tehsildar Dhamtari for further proceeding. 5. On 24.07.2009 the Tehsildar Dhamtari again assessed the land revenue and yearly rent of the land and got it deposited by the petitioner through bank Challan and again referred the matter back to Collector, Dhamtari. The matter was again remitted to Tehsildar for further preparation of lease deed and spot map in accordance with law vide its order dated 22.08.2009 passed by the Additional Collector, Dhamtari. On 30.09.2009 after fulfilling the requisite instructions, the Tehsildar Dhamtari again sent the case to Additional Collector through SDO and vide order dated 14.10.2009 lease deed was approved and it was issued in favour of the petitioner and proceedings of case was closed. 6. The original respondent No.6/Chunni Lal Keshwani (since deceased) filed an appeal before the Additional Commissioner Raipur Division, Raipur, against the order dated 05.02.2009 passed by the Additional Collector, Dhamtari in Revenue Case No.2A-20(3)/2008-09 under Section 44(2) of the MP/CG Land Revenue Code, 1959 read with Clause 4(1) of Revenue Book Circular. In the appeal, the original respondent No.6 Chunni Lal Keshwani claimed that he is in possession 5 of 11000 sq.ft. of the land of Khasra No.209 total area 2.60 Acres (1.052 Hect.) which is of sheet No.6, Plot No.6/1 situated at Risaipara, Dhamtari, PH No.16, Tehsil & District Dhamtari since 1972. In the said Plot No.6/1, his uncle late Mela Ram was residing after constructing a house and during his lifetime he left his house of Dhamtari and started residing at Raipur and since then the original respondent No.6 Chunni Lal Keshwani is in possession of the said house and after renovation of the house he is residing there and operating his business thereon. In the year, 1996 when he was fixing shutter in his shop, the present petitioner raised objection and then dispute arose between them. He also moved an application for renewal of lease which was registered as Case No.4/20(3)/2005-06 before the Collector, Dhamtari. In the application filed by the present petitioner for renewal of lease, on the report submitted by the SDO, Dhamtari, it was again sent by the Collector, Dhamtari to SDO on 19.09.2002 and 03.06.2005. The SDO has not taken any action and then the Additional Collector, Dhamtari has passed an order on 05.02.2009 and in pursuance thereof lease of petitioner was renewed on 31.08.2009 without providing any opportunity of hearing to respondent No.6/Chunni Lal Keshwani and land of Khasra No.209 area 2.60 Acres includes the plot No.6/1 also which is hold by him. 7. After hearing the parties, the Additional Commissioner, Raipur Division, Raipur, has passed its order on 24.04.2012 and held that without there being any proper pleadings with respect to issuance of lease the order has been passed by the Additional Collector, Dhamtari. The land of Khasra No.209 area 2.60 Acres is recorded as grass land in Khasra 6 Panchshala of the year, 2009-10. The original lease deed has not been filed by the parties and it has not been mentioned as to when lease was granted in their favour and without document of original lease deed the order of renewal of lease has been passed which is not in accordance with law and the order dated 05.02.2009 passed by the Additional Collector, Dhamtari in Case No.2/A-20(3) year 2008-09 was set aside and directed the subordinate court to initiate the proceeding for removal of encroachment from there which is under challenge in the present petition. 8. The respondents No.1 to 5/State filed its reply and submitted that in absence of original records pertaining to original lease produced by the petitioner, his claim for holding a valid lease cannot be accepted and the land of Khasra No.209 area 2.60 Acres is recorded as grass land in Khasra Panchshala of the year, 2009-10. The Additional Commissioner, Raipur, has rightly considered that the original lease deed has not been produced and it is recorded as grass land. Therefore, the appeal filed by Chunni Lal Keshwani was allowed and set aside the order dated 05.02.2009 passed by the Additional Collector, Raipur in Case No.2/A-20(3)/2008-09. 9. During pendency of petition, the original respondent No.6 died and his legal representatives were substituted vide order dated 01.03.2019. 10. The respondent No.6 also filed its reply and submitted that there is no document filed by the petitioner with respect to lease deed. He is in possession over the land bearing Plot No.6/1 situated at Dhamtari PH No.16, Tehsil & District Dhamtari since the lifetime of his predecessors. In the year, 1996 when he tried to install shutter in his shop, the dispute 7 arose between him and the petitioner. The answering respondent had also moved his application for renewal of lease with respect to land of his possession of Khasra No.209 area 2.60 Acres and the petitioner has also moved an application for renewal of lease. Vide order dated 05.02.2009 the Collector, Dhamtari, has ordered for renewal of lease including the land of answering respondent i.e. Plot No.6/1. Challenging the order dated 05.02.2009 he filed an appeal before the Additional Commissioner, Raipur which was allowed on 24.04.2012 and the order dated 05.02.2009 passed by Additional Collector, Raipur is set aside holding that subject land is recorded as grass land in the revenue records of the year, 2009-10 and the petitioner has not filed any lease deed in his favour. Therefore, the petitioner is not entitled for any relief. 11. Learned counsel for the petitioner would submit that in the Missal Bandobast of the year, 1926-27, the land of Khasra No.209 area 2.12 Acre though was recorded as grass land in the name of Malik Makbuja (Mus. Sudami Bai) but in its remark column “Idgah” is mentioned which proves the fact that prior to 1926-27 there was an Idgah over the said Khasra number. In the records of rights of the year, 1954, the land of Khasra No.209 area 2.60 Acre is recorded as diverted land but the name of its possession holder has not been mentioned. Though original lease deed or order could not be filed by the petitioner as it was quite old record and the parties could not be able to get the same from the concerned revenue department, but from the report dated 16.11.1964 submitted by the Naib Tehsildar Dhamtari in Revenue Case No.40A-59/65-66 it is clearly mentioned that the land of Khasra No.209 8 area 2.60 Acres was given by one Sheikh Aman under Waqf to Anjuman Islamiya and it is being used as Idgah since then and Anjuman Islamiya has requested for correction of Patwari records on the basis of order passed in Revenue Case No.1/12-1 of 1910 by the then Deputy Commissioner Raipur and recommended for correction of Nistar Patrak and revenue records. From various orders passed by the revenue authorities it is quite clear that the petitioner is entitled for renewal of his lease. Merely non filing of original lease deed does not dis-entitle the petitioner from valid possession of his land which is continued since more than 100 years and various orders have been passed considering possession as well as entitlement of the petitioner over the land in question. 12. He would also submit that the petitioner was claiming correction of records and mutation of their names in the revenue record of Khasra No.209 since long, but due to inaction on the part of the revenue authorities, the same could not be corrected. Vide order dated 31.03.1973 passed by Tehsildar, Dhamtari, the order for correction of record was passed. Despite that, in the year 2009-10, the relevant entries in the Khasra Panchshala reflects that the same is recorded as grass land and only on the basis of which the Additional Commissioner, Raipur, has passed the order ignoring the earlier orders passed by the revenue authorities in favour of the petitioner to either mutate their names in the revenue records or renewal of their lease. Further, it was the case of respondent No.6 also before the Additional Commissioner Raipur that the lease granted in favour of the petitioner is renewed in which his land of Plot No.6/1 is also included. The petitioner is in 9 possession of land since more than 100 years and he is not an encroacher over there. The document shows that he legally possessed the land and there cannot be any removal of encroachment as ordered by the Additional Commissioner, Raipur. Therefore, the impugned order may be set aside and the petition may be allowed. 13. On the other hand, learned counsel for the State as well as respondent No.6 opposes the submissions made by the counsel for the petitioner and supported the impugned order passed by the Additional Commissioner, Raipur. 14. I have heard the counsel appearing for the parties and perused the material produced in the writ petition. 15. The claim of the petitioner in the present writ petition is that a lease was granted in his favour on 01.10.1911 by the then Deputy Commissioner, Raipur in case No.1/12-1 of 1910, but no any order granting lease in favour of petitioner in the said case was filed nor any lease deed submitted by the petitioner. From perusal of report submitted by the Naib Tehsildar, Dhamtari dated 16.11.1964 in Revenue Case No.40A-59/65-66 it reflects in paragraph 1 of report that the subject land of Khasra No.209 area 2.60 Acre was given by one Sheikh Aman under the Waqf to Anjuman Islamiya and it is being used as Idgah. The said report dated 16.11.1964 is relevant in the present case which is reproduced hereinunder: “1. Anjuman Islamiya through its president Shri Md. Abdul Shakoor of Dhamtari has requested for correction of Patwari records on the basis of orders passed in Revenue case No.1/12-1 of 1910 assessed by the then Dy. Commissioner Raipur. The land in question is S. No. 209, area 2.60 acres. It is stated that this S.No, was given by one Sheikh 10 Aman under Waqf to Anjuman Ishmiya and it is being used as Idgah since time. 2. Copy of the odors passed in Revenue case No.1/12-1 of 1910-11 of village Dhamtari has been filed. Copy of the order dated 9.10.11 by the D.C. on the report of the S.D.O, Dhamtari, dated 28.9.11 may be perused in the relevant case quoted above. In the said plot No. 218 area 7.90 acres has been ordered to be corrected, in the name of Anjuman Islamiya …..Later on the then Tahsildar made a recommendation for correction may only 2.12 Acres as Idgah since rest of the portion as reported to have been occupied by Mission School and Bungalow, but what happened to this reference was not known, it is not clear from the records filed now. 3. The ……. on record shows that the corresponding survey No.212/3 is now 209…...the same shall be referred as 209 now. The Khasra reveals that S.No. 209 area 2.60 acres is recorded in grass and now under Idgah and some portion is …. petrol pump and under encroachment of one Jumman Khan……. 4. The President of Anjuman Islamiya filed copy of the appellate orders passed by the learned Commissioner, Raipur wherein it has been held that the area shown as for the Petrol Pump in Khasra belongs to the Anjuman Islamiya. 5. In the present record S. No.206 is having an area of 2.60 acres and it is under the Management of Anjuman Islamiya. Keeping in view the latest order of the Commissioner it is proposed that Khasra No.209, area 2.60 acres may be ordered to be recorded as Idgah under Anjuman Islamiya Dhamtari which was already ordered by the then D.C. in Revenue case referred above in para 1 of this report. Nistar Patrak may also be ordered be corrected under Section 237 (5) of the MPLR Code 59. Submitted to the Collector Raipur through the Sub Divisional Officer, Dhamtari. Sd/- Naib Tehsildar Dhamtari The…….of the Anjuman Islamiya wants to be heard before the full order is passed. Sd/- Naib Tehsildar I agree. Sd/- 11 R.K. Tiwari SDO. Order Report Seen. In view of the reasons recorded therein, permission to divert Kh. No.209 area 2.60 Acres is granted u/s 237(2) of MPLR Code. 2. The Nistar Patrak and other records be corrected accordingly. Sd/- Addl. Collector” 16. On the basis of the report submitted by the Naib Tehsildar dated 16.11.1964, the Additional Collector, Raipur, passed its order on 23.05.1966 and found that the various judgments establishes the ownership of Anjuman Islamiya over the land of Khasra No. 209 which has been admitted by the other persons also including Shri Pujari Brothers and Smt. Paraniya Bai. It was also found by the Additional Collector that Anjuman Islamiya was agreed to pay the assessment of Khasra No.209 area 2.70 Acres whose details have been given in the report and held that the petitioner Anjuman Islamiya is liable for assessment of land revenue under Section 60 of the MP Land Revenue Code. 17. The said order dated 23.05.1966 was challenged by the petitioner before the Commissioner, Raipur Division, Raipur by filing an appeal No.302-A-2/1965-66 which was decided on 16.05.1967 and the appeal filed by the petitioner was dismissed directing Additional Collector to recover the arrears of assessment from the petitioner. 18. The petitioner has also filed an application before the Tehsildar Dhamtari for mutation of his name as per the order dated 12.05.1966 passed in Case No.40-A59-65-66 by the Additional Collector, Dhamtari and ultimately vide order dated 31.03.1973 the Tehsildar, Dhamtari has passed an order that since the land of Khasra No.209 area 2.07 Acres 12 had already been recorded in the name of the petitioner by the order passed by the Deputy Commissioner Raipur and the same has been executed and therefore no further action is required in the case and the proceeding of revenue case No.20A-6/69-70 was closed. Although Kistan Kitab has been issued in faovur of the petitioner, but in the factual scenario where the claim of petitioner itself is that he is the lease holder of the land of Khasra No.209, issuance of Kisan Kitab, a document of their ownership, itself is doubtful. 19. Be that as it may, the fact remains that the petitioner is claiming the land of Khasra No.209 area 2.60 Acres based on the order dated 01.10.1911 by which grant of lease is claimed, but neither the order dated 01.10.1911 nor any lease deed has been filed by the petitioner. In the report dated 16.11.1964 submitted by the Naib Tehsildar in Revenue Case No. 40-A59/65-66 before the Collector, Raipur through SDO Dhamtari reflects that the said land of Khasra No.209 area 2.60 Acres of village Dhamtari was given by one Sheikh Aman under Waqf to Anjuman Islamiya and it is being used as Idgah since that time. The lease was also renewed from time to time and various applications for mutation of their names in the revenue records have been filed by the petitioner which has been ordered by the competent revenue authority and vide order dated 04.10.1972 the SDO Dhamtari has also observed in its order that various orders have been passed in favour of the petitioner by the revenue courts which is not required to reconsider and the ownership over the land in question of the petitioner has been accepted by the authorities and therefore he also recommended for mutation of the name of petitioner in the revenue records. The order 13 dated 12.05.1966 passed in Revenue Case No. 40-A59-65-66 by the Additional Collector, Raipur has not been produced by the parties which is the basis of claim of the petitioner. 20. Considering the various instances of the applications to various revenue courts and reports submitted by the revenue authorities and further considering the orders passed by the Naib Tehsildar, Additional Collector, Dhamtari and also the Commissioner, Raipur Division, Raipur, the impugned order dated 24.04.2012 passed by the Additional Commissioner, Raipur in Revenue Appeal Case No.280/A-20(3)/2011- 12, setting aside the order dated 05.02.2009 passed by the Additional Collector, Dhamtari, appears to be erroneous. The said order was passed only on the ground that petitioner failed to submit the original lease deed ignoring various orders of revenue authoirties. The Additional Commissioner, Raipur Division, Raipur, should have considered the various orders and reports submitted by the revenue authorities. By the order dated 05.02.2009 the Additional Collector, Dhamtari recommended for renewal of lease for a further period of 30 years in favour of petitioner, except 10000 sq.ft. of disputed land of Khasra No.209, Plot No.6/3 after considering the documents submitted in case No.2/A-20(3)/2008-09. 21. In view of the aforesaid disputed question of facts, the matter needs reconsideration by the Collector, Dhamtari in view of the earlier orders passed by the revenue authorities and reports submitted in revenue cases with respect to the rival claims of the respective parties. Consequently, the order dated 24.04.2012 passed by the Additional Commissioner, Raipur Division, Raipur in Revenue Appeal Case 14 No.280/A-20(3)/2011-12 (Annexure P/6) is hereby set aside. The matter is remitted back to Collector Dhamtari to reconsider the matter afresh keeping in view the revenue records available with the department with respect to claim of the parties and to pass a fresh order in accordance with law after affording proper opportunity of hearing to concerned parties. 22. With the aforesaid observations, the petition is allowed. 23. The interim order dated 27.07.2012 passed in present writ petition shall remain in operation for a further period of three months from today. Thereafter, the parties would be at liberty to make suitable application before the Collector, Dhamtari to grant/extend the interim order, if so advised. In the eventuality of filing such application, the Collector, Dhamtari shall decide the same in accordance with law. Sd/- (Ravindra Kumar Agrawal) Judge inder