An occupant challenged eviction from government land, claiming adverse possession and alternatively seeking rehabilitation as a manual scavenger. The Court rejected both claims and dismissed the petition, finding no ground to interfere with the eviction orders.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No.274 of 2016.
Judgment reserved on :19.06.2017. Date of decision: July 3rd ,2017.
Satpal Nahar .…Petitioner.
Versus
Union of India and others …..Respondents.
Coram
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes
| For the Petitioner : | Mr.Rajiv Rai, Advocate. |
|---|---|
| Petitioner in person. | |
| For the Respondents: | Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Ajay Chauhan, Advocate. |
Tarlok Singh Chauhan, Judge.
The petitioner has been found to have encroached upon 45.70 square metres of land belonging to the respondents in the proceeding initiated against him under the H.P. Public Premises Eviction and Rent Recovery Act, 1971 (for short the “Act”) and has filed the instant petition for grant of the following substantive reliefs:-
Whether the reporters of the local papers may be allowed to see the Judgment?
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14.05.2015 passed by the learned Estate Officer vide Annexure P/2 may kindly be quashed and set aside.
B. That in alternatively the respondent may kindly be directed to allot a residential plot and financial assistance for house construction, or a ready-built house, with financial assistance in accordance with the provisions of “ THE PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGERS AND THEIR REHABILITAITON ACT, 2013 .”
2. The undersigned has been conferred with the powers of Estate Officer under the Public Premises (Eviction of unauthorized occupants Act, 1971) by the Central Government for the removal of encroachments on the Central Government land. Therefore, the undersigned is competent to try this case under
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the provisions of the Public Premises (Eviction of unauthorized occupants Act, 1971).
3. That by perusing the Tatima, Jamabandi and Demarcation report, it has clearly been established and proved on record that the disputed land is owned and possessed by the Central Government which has also been affirmed by the State Government revenue authorities.
4. Though the respondent has filed reply to the notice but in support of his contention, the respondent failed to prove on record any valid documentary evidence before this court that the land in question belongs to him. The witnesses examined by him also failed to produce any valid document which shows that the land in question belongs to the respondent. So far as plea of respondent with regard to ownership by way of adverse possession is concerned, this is a case of unauthorized occupation and this authority has been conferred with the powers of Estate Officer under the Public Premises (Eviction of unauthorized occupants Act, 1971) by the Central Government for the removal of encroachments on the Central Government land. Therefore, the undersigned is competent to try this case under the provisions of the Public Premises (Eviction of unauthorized occupants Act, 1971). Further, during the pendency of the case with a view for proper adjudication of the case and to confirm about land dispute and encroachment, this court had also ordered to demarcate the premises in question from the competent State Revenue agency. Through the Demarcation report by the revenue agency, it has been confirmed that ownership and possession of the land in question belongs to the Central Government.”
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“6. The scope of interference in a writ jurisdiction under Article 226 of the Constitution of India, is now well settled. The principles on which the writ of certiorari is issued are also wellsettled.
7. The Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr., (1955) 1 SCR 250, held that certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice
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where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari.
8. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into reappreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
9. Now in the instant case, authorities below did have jurisdiction to pass order. There are no extraneous circumstances or factors present in the passing of the impugned orders. It is not a case of malice in law or fact or bias. Question of prejudice caused to the petitioner does not arise and public interest is in favour of the respondents. Entire material so placed on record stands fully considered and appreciated while passing the impugned orders.
10. The Constitution Bench in Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam &Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by:
"The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence
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in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226."
11. That an error apparent on face of record can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde and Ors. Vs. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890. It was held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari.
12. The Constitution Bench in The Custodian of Evacuee Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. (1961) 3 SCR 855 stated :-
" The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in a 7-Judge Bench decision of this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) and the following four propositions were laid down :-
"(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."’
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13. A Constitution Bench of Hon’ble Supreme Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr., (2002) 4 SCC 388, has held as under:-
"109. Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities."
14. Hon’ble Apex Court in Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., 2014(11)SCC 85, has held as under;
‘’….
"60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and often quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service, [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus:
Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.
By ‘illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute,
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by those persons, the judges, by whom the judicial power of the State is exercisable.
By ‘irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system... ...
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. It is equally settled that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. In the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Even
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non-use of the property by the owner for a long time won’t affect his title.
Hon’ble Supreme Court ruled that:
"Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
11 . In Karnataka Board of Wakf vs . Government of India and others (2004) 10 SCC 779 , the Hon’ble Supreme Court held that one who pleads adverse possession should be very clear about the origin of title over the property. He must specifically plead it.
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“6. That it will be worthwhile to mention here that I along with my family members, which include my brothers and sisters have become owners in possession of the land and the house upon the said land situated at Longwood by way of adverse possession. My grandfather came in possession of the land and the house upon the said land situated at Longwood by way of adverse possession. My grandfather came in possession of this land in Longwood in the year 1951 and he constructed a “Dhara-cum-house” in the year 1951-52. Since then he had been possessing the said land and staying in the said “Dharacum-house” peacefully, openly and without interruption from any one and hostile to the knowledge of the true owner. So, therefore, the replying respondent and the ancestors of the replying respondent were in the possession of aforesaid land before the commencement of the present Act under which the notice is served. The officials and the concerned department never objected to the construction of the “Dhara-cum-house” on the aforesaid land during the life time of my grandfather and my father. The replying respondent came in possession of the aforesaid “Dhara-cum-house” after the death of my father the land and “Dhara-cum-house” came in my possession as well in possession of my family members i.e. legal heirs of late Sh. Prakash Chand, who was my father. The possession upon the land and “Dhara-cum-house” is now of more than 50 years and the same has ripened into ownership by way of adverse possession. Therefore, the Executive Engineer, Shimla, Central Division, CPWD has no powers to decide the question of title to the said property under the garb of notice issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.”
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his possession actually became adverse and, therefore, such plea falls short of legal requirement as per law as expounded in Dr.Mahesh Chand Sharma vs. Raj Kumari Sharma (1996) 8 SCC 128 wherein it was held that a person who claims adverse possession has to show:
Officer vs. Goundla Venkaiah and another (2010) 2 SCC 461 :-
“47. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous
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elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers.
48. In State of Rajasthan v. Harphool Singh (Dead) through Lrs. 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below: -
“12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a thirdparty encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot
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commence until he obtains actual possession with the required animus."
49. A somewhat similar view was expressed in A.A. Gopalakrishnan v. Cochin Devaswom Board 2007 (7) SCC 482. While adverting to the need for protecting the properties of deities, temples and Devaswom Boards, the Court observed as under:-
"The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/ archakas/ shebaits/ employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land . This presumption available to the Government is not available to any person or individual. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit or any other proceeding against any individual.
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in regard to suits by Government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. This was so held by the Hon’ble Supreme Court in R.Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others (2010) 5 SCC 203 wherein it was held as under:
“19 . Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are
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expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.”
in State of Haryana vs. Mukesh Kumar and others, (2011) 10 SCC 404 pointed out the need to have a fresh look at the law of adverse possession. The law on adverse possession was described as irrational, illogical and wholly disproportionate and
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extremely harsh for the true owner and a windfall for dishonest person who had illegally taken possession of the property. After referring to the earlier judgments in Hemaji Waghaji vs. Bhikhabhai Khengarbhai (2009) 16 SCC 517 and P.T. Munichikkanna Reddy vs. Revamma (2007) 6 SCC 559 , the Hon’ble Supreme Court reiterated the observations therein that the law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The Hon’ble Supreme Court expressed its difficulty to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation. It was observed as follows:
“In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law”.
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Grade, Shimla, to this effect, the land was found to be owned by the respondents. Notably, the petitioner never assailed either the demarcation report or the order passed on the basis thereof by the aforesaid Collector on 25.07.2014.
(Sanjay Karol),
Acting Chief Justice.
( Tarlok Singh Chauhan), Judge.
July 3rd , 2017. (krt)
3 issues framed by the court
Could the adverse-possession claim succeed without specifying when possession became adverse?
Did the public-premises eviction orders disclose any defect warranting interference under Article 226?
Could rehabilitation as a manual scavenger be sought for the first time in the eviction writ petition without evidence of that status?
Colour shows how this judgement treated each authority
Ranjit Kumar vs. State of H.P. and anotherRelied on¶31
CWP No.858 of 2017
State of Rajasthan vs. Harphool Singh (dead) through his LRsRelied on¶65
(2000) 5 SCC 652 · Who else cites this
P. Periasami vs. P. PeriathambiRelied on¶66
(1995) 6 SCC 523 · Who else cites this
Karnataka Board of Wakf vs. Government of India and othersRelied on¶69
(2004) 10 SCC 779 · Who else cites this
Dr.Mahesh Chand Sharma vs. Raj Kumari SharmaApplied¶76
(1996) 8 SCC 128 · Who else cites this
Mandal Revenue Officer vs. Goundla Venkaiah and anotherRelied on¶84
(2010) 2 SCC 461 · Who else cites this
State of Haryana vs. Mukesh Kumar and othersRelied on¶104
(2011) 10 SCC 404 · Who else cites this
Hemaji Waghaji vs. Bhikhabhai KhengarbhaiReferred¶106
(2009) 16 SCC 517 · Who else cites this
P.T. Munichikkanna Reddy vs. RevammaReferred¶106
(2007) 6 SCC 559 · Who else cites this
Manoj Singh vs. Union of IndiaRelied on¶108
(2015) 3 ILR HP 706 · Who else cites this
3 provisions across 3 enactments
Satpal Nahar
Union of India
Sanjay Karol
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
