Dismissed

Keshav Ram and Anr. v. State of Hp and Ors.

Himachal Pradesh HC5 Nov 2024CWP/3123/2020

Case brief

AI extract

What is this about?

This court disposed of two connected writ petitions regarding unauthorized occupation of government forest land. The petitioners claimed title via adverse possession but failed to substantiate it. The court dismissed the petitions for eviction relief but directed authorities to identify, demarcate, and take possession of the encroached land by specific deadlines.

What did the court decide?

Dismissed petition; Directors to Revenue and Forest Authorities to identify, demarcate, and take possession of encroached land by 23.12.2024/30.12.2024.

Keshav Ram and Anr. Vs State of Hp and Ors. — Land Acquisition | Himachal Pradesh HC (2024)

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( 2024:HHC:10901-DB )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.5 of 2016 a/w CWP No.3123 of 2020. Date of decision: 05.11.2024

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CWP No.5 of 2016. 1. Dhirmal & Anr.	Versus	…Petitioners.
State of H.P.		…Respondent.
CWP No.3123 of 2020.
2. Keshav Ram & Anr.	Versus	....Petitioners.
State of H.P. & Others		....Respondents.

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Coram

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Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Bipin C. Negi, Judge.

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Whether approved for reporting?¹

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*For the Petitioners.*	*Mr. Jai Ram, Advo* *2016.* *Mr. Ajay Shandil* *No.3123 of 2020.*	*cate in CWP No.5 of* *, Advocate in CWP*
*For the Respondent*:	*Mr. P.K. Nadda,* *General, for the* *petitions.*	*Additional Advocate* *respondent in both*

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Vivek Singh Thakur, Judge (Oral)

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These two petitions, related to eviction from the same Government land, which is stated to be in occupation of petitioners in CWP No.5 of 2016 and respondents No.9 to 11 in CWP No.3123 of

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2020, are being decided by this common judgment for involvement of common facts, circumstances and law, to be adjudicated for determining the issue.

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2. Petitioners, in this petition, have approached this Court by filing present writ petition seeking following main reliefs:-

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“(i) That the writ in the nature of certiorari may kindly be issued the impugned orders dated 24.08.2010 (Annexure P-3, 16.11.2012, 01.02.2014 (Annexure P-6) and order dated 09.10.2015 (Annexure P-8) passed by the authorities below may kindly be quashed and set aside, in the interest of justice and fair play.

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(ii) That the respondents may kindly be directed not to interfere with the peaceful possession of the petitioners in the land comprised in khasra No.175/1 measuring 0-2-9 bighas situated in Muhal Tatapani/123, Tehsil Karsog, District Mandi, H.P.”.

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3. Brief facts of the case are that Sub-Divisional Collector, Karsog initiated eviction proceedings against the petitioners under Himachal Pradesh Public Premises & Land (Eviction & Rent Recovery) Act, 1971 (in Short PP Act) comprised in Khasra No.175/1 area measuring 00-02-09 bighas situated in Muhal Tattapani/123, Tehsil Karsog, District Mandi, H.P.

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4. In aforesaid proceedings, vide order dated 24.08.2010, petitioners were ordered to be evicted from the premises in reference.

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5. Petitioners had approached the Divisional Commissioner assaling the order dated 24.08.2010. Accepting the appeal of the

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petitioner, case was remanded by the Divisional Commissioner, Mandi to the Collector, Sub-Division, Karsog, District Mandi to decide the case afresh after visiting the spot by affording an opportunity of being heard to both the parties.

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6. In compliance of aforesaid direction, Tehsildar, Karsog, Revenue staff, Assistant Engineer, HPPWD, Churag, learned Government counsel of HPPWD visited the spot on 27.06.2012 in presence of petitioners and thereafter vide order dated 16.11.2012, petitioners were again directed to be evicted from the land premises in reference.

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7. The order dated 16.11.2012 was assailed by the petitioner by filing appeal No.16/2013 titled as Dhirmal and Het Ram S/o Late Sh. Jagat Ram Vs. State of H.P. which was dismissed on 01.02.2014.

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8. Thereafter, petitioners preferred Review Petition in Case No.16/2013 before the Divisional Commissioner, Mandi, H.P., which was dismissed on 09.10.2015 with observation that there is no provision of review in Scheme provided under Himachal Pradesh Public Premises & Land (Eviction & Rent Recovery Act, 1971).

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9. Being aggrieved by aforesaid orders petitioners have filed this writ petition.

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10. Land in reference has been recorded in the revenue record in the ownership of the State of Himachal Pradesh with possession of HPPWD.

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11. The claim of the petitioners is that the land in question was purchased by their father from one Nazir son of Sucha in the year 1985 and thereafter, their father entered into the shoes of Nazir who was in possession of the same since long time and therefore, they have acquired ownership of the land by virtue of adverse possession. Though petitioners have claimed that their father had purchased the land from one Nazir but no sale-deed was ever placed on record.

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12. It is difficult to comprehend as to how the person (Nazir), who was not owner of the land, could have sold the land in reference to the father of the petitioners.

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13. It is also apt to record, during pendency of the present petition a supplementary affidavit dated 19.05.2017 was also filed by the petitioners admitting their unauthorized occupation on the Government land with submission that land in their possession, being less than 05 bighas required to be considered for regularization in terms of notification of the Government. It is apt to record that no such notification/scheme is in force.

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14. Even after taking plea of the adverse possession petitioners have not produced any document to substantiate their title

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over the suit land including verdict of competent Court in any action or proceedings initiated by them to prove and establish such title over the land by way of adverse possession. Merely, taking a plea of adverse possession is not suffice to deter the concerned authority from taking appropriate action under Himachal Pradesh Public Premises & Land (Eviction & Rent Recovery Act, 1971), particularly when there is no provision in PP Act for adjudication of such plea. In this regard, findings returned by this Division Bench in CWP No.92 of 2017 “Love Chauhan Vs. State of H.P. and CWP No.190 of 2017 Harish Kumar VS. State of H.P., are also relevant and applicable.

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15. Though another contention of the petitioners with respect to visiting of the spot and identification thereof including the demarcation has already been addressed by the concerned authority by visiting the spot on 27.06.2012, however, in any case in view of the order, to be passed hereinafter, grievance of the petitoiner with respect to demarcation would be redressed, as the concerned authority, for proper identification of the land in reference, before taking possession, shall have to demarcate the land in accordance with law.

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16. From the material on record, application filed for regularization of the encroached land and the affidavit filed in this Court, addmitting the encroachment, it is apparent that the petitioners are in unauthorized possession of the forest land.

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17. As observed by this Court in its order dated 17.07.2024, passed in CWP No.1028 of 2002 and connected petitions including present petition, adjudication of CWP No.1028/2002 regarding validity of Section 163(A) of the Himachal Pradesh Regulation and Encroachment (in certain cases) of Government Land and Disposal of Government Land Rules, 2002, shall have no impact in the present matter, because in the absence of approval of the Central Government or for want of pendency of any request for such approval of the Central Government, the forest land cannot be put to a use, which is a nonforest purpose, as also has been defined and explained in Section 2 of Forest Conservation Act, 1980, clarifying that breaking up or clearing of any forest land of portion thereof for the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticulture crops or medicinal plants and even any purpose other than reafforestatoin, shall amount to using such land for non-forest purpose.

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18. After going through the record, impugned order and averments made in the petition and also considering the submissions made by learned counsel for the petitioner, we do not find any merit in the petition and accordingly the same is dismissed.

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19. Consequently, concerned Revenue officers, including Tehsildar concerned and Forest Authorities, including DFO concerned, are directed to identify the government/forest land encroached by the

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petitioner property and take possession of the encroached government/forest land by fixing permanent boundary marks of the Government Land on or before 23.12.2024 and compliance affidavit with respect to taking of possession on the spot, be filed by the concerned Divisional Forest Officer on or before 30.12.2024.

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20. The concerned authorities are also directed to remove other encroachment(s) from the Government/Forest land detected/found on the spot during demarcation/identification of the land in reference by taking appropriate action in accordance with law in time bound manner, to the maximum within six months from the date on which such encroachment is found/detected.

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21. Improvements/structures, if any, made on the encroached land shall vest in the State of Himachal Pradesh/Department and shall be utilized by the State/Department for its use. In case petitioner/encroacher intends to take away the fixtures/building material/debris for his own use, he may opt for that in writing, but in that eventuality he shall take away the material of the structure before 23.02.2025 at his own cost.

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22. It is made clear that in case petitioner/encroacher opts to take away the fixtures/building material/debris for his own use, apart from movable articles, it will not give him right to continue with the possession of the encroached land and/or structure/building raised on

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the said land. On exercising such option, petitioner/encroacher has to remove entire material, including debris, to hand over the vacant possession of the land and, thereafter, he shall to obtain No Objection/Clearance Certificate about complete removal of everything from the spot whereupon illegal structure had been raised.

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23. In case, he removes fixtures/material only leaving behind the debris/remains of the building on the spot, in the Government land, the same shall be removed by the Department but on the expenses of the petitioner/encroacher and on failure to pay such costs/expenditure, the same shall be recovered from the petitioner/encroacher/successorin-interest as arrrears of land revenue.

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24. Aforesaid extended time is applicable to immovable property, but not movable articles. However, in special circumstances movable articles may be taken within reasonable time, say 5 to 7 days, after initial last date of vacation/taking over possessoin of the land/property.

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25. Any dereliction in performing compliance of aforesaid direction or laxity to remove encroachment from Government/Forest land shall be taken seriously and consequential adverse action/proceedings shall ensue.

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26. Entire aforesaid proceedings shall be video graphed and copy of videography be placed on record with affidavit.

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27. Learned Additional Advocate General is directed to bring this order in the notice of the Chief Secretary to the Government of Himachal Pradesh, for ensuring timely compliance. Petition is disposed of in aforesaid terms along with pending application(s), if any.

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List for compliance on 03.01.2025.

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CWP No.3123 of 2020.

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28. Petitioners in present petition, have approached this Court by filing this petition to implement the order dated 16.11.2012 passed by Collector Sub-Division Karsog, District Mandi, H.P. for eviction of respondents from the land in reference in CWP No.5 of 2016.

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29. Reasons assigned and findings returned in judgment passed in CWP No.5 of 2016 sahll also be applicable to the present petition mutatis mutandis for all intent and purposes. Accordingly, petition is allowed and disposed of in the same terms with the direction to respondent-State/authority to ensure eviction of respondents No.9 to 11 or anybody else in unauthorized possession, from the land in reference in terms of the judgment passed in CWP No.5 of 2016.

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List for compliance on 03.01.2025.

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(Vivek Singh Thakur), Judge.

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(Bipin C. Negi), Judge.

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5^th November, 2024.

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(munish/gaurav rawat)

Keshav Ram and Anr. v. State of Hp and Ors.

Case brief

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Keshav Ram and Anr. v. State of Hp and Ors.

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