Himachal Pradesh High Court
Bahadur Singh vs State Of H.P. & Another on 23 December, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:15700-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 685 of 2017
Date of decision: 23rd October,2024
Bahadur Singh ...Petitioner.
Versus
State of H.P. & Another. ...Respondents.
Corum
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin C. Negi, Judge.
Whether approved for reporting?1
For the Petitioner : Mr. Davinder Chauhan Jaita, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with
Mr.Pawan K. Nadda, Additional Advocate
General.
Vivek Singh Thakur, Judge (Oral)
Petitioner, in present case, has assailed order dated
19.01.2017, passed by the Divisional Commissioner, Shimla Division,
Shimla in case No. 504 of 2016, titled as Bhadar Singh vs. State of HP,
whereby his eviction from the Government/Forest land comprising Khasra
No. 368/2, 361/1 measuring 0-42-12 hectares situated at Mauja Pahar,
Tehsil Jubbal, District Shimla H.P., as directed vide order dated 04.07.2016,
passed in Case No. 543/2009 by Collector-cum-Divisional Forest Officer,
Rohru Forest Division, District Shimla, H.P., has been affirmed.
1
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
2
( 2024:HHC:15700-DB )
2 In the present matter, petitioner had submitted an application
No.0398240 dated 14th August, 2002 for regularization of the encroachment
upon the land in reference. On the basis of report made by Forest Officials
and application submitted by petitioner, proceedings under H.P. Public
Premises and Land (Eviction and Rent Recovery) Act, 1971 (in short “PP
Act“) were initiated against the petitioner and show cause notice under
Section 4 of the PP Act was issued to the petitioner.
3 During pendency of proceedings, before the Collector,
petitioner had made a statement dated 4th July, 2016 that in case, on
demarcation, he was found in possession of Government land then he
would surrender the same.
4. Petitioner has also claimed his possession over the land since
last 45 years, but no material has been placed on record to substantiate his
claim to entitle him to continue with possession over the land. Otherwise
also, this plea is meaningless in proceedings initiated under PP Act as
question of title cannot be adjudicated by the Collector under PP Act. In this
regard, findings returned by this Court in CWP No. 92 of 2017 titled Love
Chauhan vs. State of HP and CWP No.190 of 2017 titled Harish
Chauhan vs. State of HP are relevant and applicable in present petition.
5 During pendency of present petition, petitioner had also filed
an affidavit dated 27th May, 2017, admitting therein the encroachment upon
the land in reference, with undertaking to surrender the excess forest land
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in favour of the Department in terms of Policy of the State. Petitioner in this
affidavit had referred the Regularization of Encroachment (in certain cases)
on Government Land and Disposal of Government Land Rules, 2017.
6. Though Draft Rules 2017 were published by the Government
but it has been categorically informed by learned Advocate General that no
such Policy was ever finalized and implemented and further that now no
such Policy is pending consideration before the State Government.
7 As observed by this Court in its order dated 17.7.2024,
passed in CWP No. 1028 of 2002 and connected petitions including present
petition, adjudication of CWP No. 1028 of 2002 regarding validity of Section
163(A) of the Himachal Pradesh Land Revenue Act, 1953 and 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
non-forest 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 or portion thereof for the cultivation of tea, coffee, spices, rubber,
palms, oil bearing plants, horticulture crops or medical plants and even any
purpose other than reafforestation, shall amount to using such land for non-
forest purpose.
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8 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.
9. Consequentially, concerned Revenue Officers, including
Tehsildar concerned and Forest Authorities, including DFO concerned, are
directed to identify the Government/forest land encroached by the
petitioners properly and take possession of the encroached
Government/forest land by fixing permanent boundary marks of the
Government land on or before 6th December, 2024 and compliance affidavit
with respect to taking of possession on the spot, be filed by the concerned
Divisional Forest Officer on or before 16th December, 2024.
10. 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.
11. 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
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may opt for that in writing, but in that eventuality he shall take away the
material of the structure before 6th February, 2025 at his own cost.
12. 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 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 have to obtain No Objection/Clearance Certificate about
complete removal of everything from the spot whereupon illegal structure
had been raised.
13. 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/successor-in-
interest as arrears of land revenue.
14. Aforesaid extended time is applicable to immovable property,
but not to 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 possession of the land/property.
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15. 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.
16. Entire aforesaid proceedings shall be video graphed and copy
of videography be placed on record with affidavit.
17. Learned 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.
The petition is disposed of, so also pending application(s), if
any, in aforesaid terms.
List for compliance on 23rd December, 2024.
(Vivek Singh Thakur),
Judge.
(Bipin C. Negi),
Judge.
23rd October, 2024.
(ms)
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