Pawan Kumar Vs the State of Hp and Another

For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Y.P.S.Dhaulta, Additional Advocate General and Ms. Menka Raj Chauhan, Deputy Advocate General.

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-----------------------------------------------------------------------------------Jyotsna Rewal Dua, Judge

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Application moved by the respondent-Forest Department under Section 4 and 5 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (the Act in short) was allowed by the Collector-cum-Divisional Forest Officer, Bharmour, District Chamba on 24.08.2013. This order was affirmed by the Divisional Commissioner Kangra, District Kangra, on 02.09.2023. Feeling aggrieved, petitioner has instituted this

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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writ petition.

2. Heard learned counsel for the parties and

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considered the case file.

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3. Respondents moved an application under the Act seeking eviction of the petitioner alleged to be in unauthorized occupation of the land comprised in Khasra 1778/895/1 areas measuring 00-02-00 bigha situated in Mohal Sutkar DPF, Tehsil Bharmour, District Chamba, H.P. According to the case projected by the respondents that land in question was forest land and classified as Charagah bigha Darakhtan , which by virtue of notification dated 25.02.1952 has to be construed as forest land, thereby attracting provisions of Forest Consecration Act, 1980.

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The Authorities below held that petitioner having applied for regularization of his possession over the land would lead to his deemed admission of being an encroacher over the Government land, therefore, even the demarcation of the forest land was not necessary. Accordingly, eviction order was passed. It was further held by the Collector-cum–Divisional Forest Officer, Bharmour, District Chamba, that forest land cannot be regularized in

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view of Forest Conservation Act, 1980.

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The Divisional Commissioner, Kangra,

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considered the question as to whether the subject land should have been demarcated before passing the impugned order of eviction. The Authority held that the petitioner having applied for regularization of the land clearly depicted that he had no right, title or interest over the land. He had encroached over the Government land, therefore, there was no necessity to order demarcation of the subject land, which being forest land, also attracted the provisions of Forest Conservation Act.

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4. Learned counsel for the petitioner contended that petitioner had taken two specific objections before the Divisional Commissioner, Kangra: -(i) Demarcation having not been carried out by the respondents in presence of the petitioner. In absence of demarcation, petitioner cannot be held to be an encroacher over any land and; (ii) Petitioner is a tribal and the area in question is a tribal area. Petitioner is residing in the aforesaid area since generations and his rights are protected under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; That petitioner had specifically asserted having

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constructed his own house in the year 1966 over the subject land after spending huge amount. Learned Deputy Advocate General defended the impugned order.

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5. From perusal of the impugned order, it becomes apparent that the aforesaid questions have not been appropriately delved into by the Divisional Commissioner, Kangra. Merely because petitioner had applied for regularization of the subject land, may not be enough to dispense with the requirement of demarcation of the subject land, more so, in light of Babu Ram Vs. State of Himachal Pradesh and Anr.² decided by the Hon’ble Apex Court as under:-

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“17. However, it cannot be gainsaid that a citizen has no right to encroach public land. If indeed any citizen has encroached public land and such encroachment is not otherwise entitled to be regularized under any law, a citizen has no right to sit on public land. In such a case, the minimum safeguard that is required of the State while ordering eviction of an alleged unauthorized occupant is to follow a fair procedure which would, inter alia, include a proper exercise conducted for demarcation of the land in the presence of the party who is likely to be affected if an order of eviction were passed, a proper show cause notice under section 4 of the 1971 Act indicating the ground(s) on which action is proposed, which must be served together with any

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2 Civil Appeal No. 13362 of 2024 decided on 28.11.2024

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document that the State desires to rely on during the course of the eviction proceedings, a just and proper consideration of the response of the noticee to the show cause notice, sufficient opportunity to lead evidence, and application of mind to all the materials on record leading to an order of eviction, if at all, it is required to be passed. If an appeal is preferred, it is needless to observe that the provisions of the 1971 Act governing disposal of such appeals also need to be adhered to strictly apart from natural justice principles.

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18.

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19.

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In the light of the above, we direct and order that the respondent-State, through its appropriate department, will undertake an appropriate exercise for demarcation of forest land upon written notice to Babu Ram. It would be desirable if such an exercise is completed as early as possible, preferably within two months from date. Similar such exercise shall be conducted in respect of the other appellants who are also alleged to be in occupation of forest land, unauthorizedly.

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If the event of any of the appellants, despite being served written notice, abstaining from attending the proceedings, the exercise of demarcation shall proceed ex-parte against him. The report of demarcation shall be served on each of the alleged unauthorised occupants of forest land, if the respondentState proposes to proceed against them under Section 4 of the 1971 Act. The noticees shall be granted a fortnight’s time to respond whereafter, the Collector shall take the proceedings to its logical conclusion in consonance with law as well as in the manner observed in this judgment within such further time as may be found necessary and reasonable by him.

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20. If an order of eviction is passed, the same must be a speaking order. The unauthorized occupant(s) in such case shall be at liberty to work out his/their remedy(s) in accordance with the other provisions of the 1971 Act

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21. Since the appellants were dispossessed of their structures prior to filing of the special leave petitions giving rise to these civil appeals, status-quo ante as prevailing on the date the writ petitions were instituted before the High Court shall be restored which shall, however, be subject to and abide by further orders that might be passed in freshly initiated eviction proceedings.

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22. All contentions on merit are kept open for being urged before the appropriate authority.”

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Petitioner’s assertions qua applicability of Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and impact thereof has also not been considered in the impugned order. Further the significance, if any, of petitioner’s asserted possession over the land eversince 1966 and enforcement of Forest Conservation Act w.e.f. the year 1980, consequence, if any, is also required to be deliberated upon.

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For the aforesaid reasons, it will be appropriate

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to remand the matter to the Divisional Commissioner, Kangra for fresh decision. Accordingly, impugned order dated 02.09.2023 (Annexure P-4) passed by the Divisional Commissioner Kangra, District Kangra, is set aside. The

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matter is remanded for fresh decision to the Divisional Commissioner, Kangra, District Kangra. Parties through their learned counsel are directed to remain present before the said Authority on 13.08.2026.

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The writ petition to stand disposed of in the above terms, so also the pending miscellaneous

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application(s), if any.

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July 20, 2026 R.Atal

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Jyotsna Rewal Dua Judge

Pawan Kumar v. the State of Hp and Another

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Pawan Kumar v. the State of Hp and Another

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