Himachal Pradesh High Court
Court On Its Own Motion vs State Of H.P. & Others on 8 January, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPIL No. 17 of 2014 & CWPIL
No.9 of 2015
Date of decision: 8th January, 2025
1. CWPIL No. 17 of 2014
Court on its own motion ...Petitioner.
Versus
State of H.P. & others ...Respondents.
2. CWPIL No. 9 of 2015
Court on its own motion ...Petitioner.
Versus
State of H.P. & others ...Respondents.
Corum
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin C. Negi, Judge.
Whether approved for reporting?1
CWPIL No. 17 of 2014
For the Petitioner : Mr. Jia Lal Bhardwaj, Sr. Advocate as
Amicus Curiae with Ms Dhanwanti,
Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with
Mr.Varun Chandel, Additional Advocate
General for respondents No. 1 to 8.
Ms. Sunita Sharma, Sr Advocate with
Mr.Dhananjay Sharma, Advocate for
respondent No.9.
None for others.
1
Whether the reporters of the local papers may be allowed to see the Judgment?
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CWPIL No 9 of 2015
For the Petitioner : Mr. Jia Lal Bhardwaj, Sr. Advocate as
Amicus Curiae with Ms Dhanwanti,
Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with
Mr.Varun Chandel, Additional Advocate
General for respondents No.1 to 11.
Mr. Janesh Gupta, Advocate, for
respondents No,12 to 24.
Mr Abhinav Thakur, Advocate for
respondents No.25 to 33 and 35 to 37.
None for respondents No. 34(a) to 34(f).
Vivek Singh Thakur, Judge (Oral)
For involvement of similar nature of issue to be adjudicated in
these both petitions dealing with the encroachment upon
Government/Forest land and removal thereof, these petitions are being
disposed of by this common judgment.
CWPIL No. 17 of 2014
2 On receiving letter dated 26th November, 2014 from Krishan
Chand Sarta resident of village Jhadag, Tehsil Jubbal, District shimla H.P.
in December, 2014, complaining encroachment upon forest land by large
number of villagers by planting/sowing apple plants/potatoes, peas and
raising construction thereon, with further grievance regarding inaction on
the part of Departmental Officers/Officials who were expressing their
inability to take action, it was directed by Hon’ble the Chief Justice to
register the said letter as present petition being CWPIL No. 17 of 2014.
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3 Initially, the State of H.P. through the Chief Secretary along
with others Government Officers/Offices/Departments were arrayed as
party, but later on other respondents including Himachal Pradesh State
Electricity Board, Department of Irrigation and Public Health and other
private respondents, were also impleaded as party.
4 Other petitions, Writ Petitions filed by individuals and Public
Interest Litigation petitions, related to the issue of encroachment, were also
tagged and adjudicated together with this petition.
5 During pendency of present petition and other connected
matters, various instructions/directions were passed by the different
Division Benches on different dates particularly on 6.4.2015, 27.07.2015,
6.8.2015, 30.8.2015, 18.10.2016 and 6.12.2017.
6 On 6th April, 2015, it was observed by the Division Bench of
this Court as under:-
“8. The very object and purpose of encroaching upon
the forest land is only to make a quick buck by illegal means.
Therefore, there is no reason why the encroachers should not
be made to cough up the extra buck which they have earned
over a long period of time.
9. People have long referred to the trees as Earth’s
lungs as they play a crucial role in our existence, consuming
large quantities of carbon dioxide and producing oxygen
which enables us to breathe. Apart from providing oxygen,
they also cleanse the air and improve its quality, control
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climate, protect soil and support vast varieties of wildlife. It is
universally accepted that deforestation is major contributing
factors of climate change and that is why it is so important to
protect trees and secure our natural landscapes for future
generations.
10. The ‘sustainable development theory’ recognizes
and avows ‘precautionary principle’ and ‘polluter pays
principle’. The State is having the rights flowing from their
position as parents patriae. The forest conservation and eco-
management are two inevitable obligations which are to be
respected when the theory of ‘sustainable development’ is put
into operation. What is required is the insistence for ‘gun and
guard’ approach in day-to-day supervisory functions of the
Government.
11. The 1992 Rio Declaration on environment and
development has been adopted by India and principle 13
thereof provides:
“The States shall develop national law regarding
liability and compensation for the victims of pollution
and other environmental damage. States shall also
co-operate in an expeditious and more determined
manner to develop further international law
regarding liability and compensation for adverse
effects of environmental damage caused by
activities within their jurisdiction or control to areas
beyond their jurisdiction.”
12. In view of the above declaration, the State is under
obligation to safeguard and compensate not only the victims
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of polluters but also liable to compensate for the adverse
effects of an environmental damage. The ‘Polluters Pays
Principle’ as interpreted by the Hon’ble Supreme Court
means that the absolute liability for harm to the environment
extends not only to compensate the victims of pollution but
also the cost of restoring the environmental degradation.
Remediation of the damaged environment is part of the
process of ‘Sustainable development’ and as such polluter is
liable to pay the cost not only to the individual sufferers but
even to the society as a whole, towards the cost of reversing
the damaged ecology.
13. The ‘Polluter Pays Principle’ can appropriately be
applied to the cases of encroachers because it is the injury
caused by each of the occupier/encroacher to the pristine
forest wealth and is, therefore, liable compensate for the
same. It is more than settled that the forest land cannot be put
to for any non-forest purpose but for the facts already set out,
it would reveal that there would be environmental degradation
in using the forest for non-forest purposes by the
occupier/encroacher affecting the environmental equilibrium.
This position is apodictic and unassailable. The activities of
the occupiers/encroachers in the forest land for the last so
many years has had its antagonistic effectiveness in the
environmental premise. Therefore, all those responsible for
environmental degradation cannot be exculpated.
14. Looking into the nature of the controversy, we are of
the view that Irrigation & Public Health as also the Electricity
Board are necessary parties to the present petition.
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Accordingly, I&PH Department through its Engineer-in-Chief,
Shimla-2 and HPSEBL through its Executive Director shall
stand impleaded as party respondents No. 8 and 9.
15. Having regard to the facts and circumstances of the
case and taking holistic view of the matter, we are of the
opinion that the following interim directions, at this stage,
would subserve the interest of justice:
(a) Respondents No. 8 and 9 are directed to
forthwith disconnect the electricity and water
connections provided to all illegal structures raised
by way of encroachment over the Government land
irrespective of whether these structures are
permanent, temporary or are simply tin sheets
structures.
(b) It shall henceforth be obligatory for the office
bearers of the Panchayats, being public servants, to
report all cases of encroachment within their
jurisdiction.
(c) In all cases where the encroachments have been
removed or yet to be removed, the cost of
removal/eviction of such encroachment shall be
recovered from the encroacher.
(d) In all cases where the encroachments have been
removed or yet to be removed, the vacated land
shall be fenced with barbed wire at the cost of the
encroacher.
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(e) All crops and plants existing over the encroached
land shall be destroyed, cut, uprooted etc. at the
costs and expenses of the encroacher.
(f) The Forest Guards throughout the State shall
henceforth submit a half yearly report to the Head
Office through the concerned D.F.O. with respect to
the number of encroachments alongwith the details
when the same were detected and action taken
thereupon.
(g) The respondents shall also initiate recovery
proceedings for the undue profit earned by the
encroacher by not only cutting down the forest trees
but also by utilizing the land by sowing crops and
raising orchards. This exercise after computing the
value of the trees which have been illicitly cut or
removed from the land shall be worked out on the
basis of five years average yield.
(h) In all the aforesaid cases where the amount is
now recoverable from the encroacher or an ex-
encroacher, if not paid within a reasonable time, be
recovered as arrears of land revenue under the
H.P. Land Revenue Act, 1978.
(i) The amount so recovered/collected from the
encroacher, shall be ear-marked by the
Government for the expenditure towards
compensatory afforestation scheme promulgated by
the Government or for other incidental or ancillary
purposes as it may deem fit and proper.
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16. All the respondents are directed to ensure that all the
encroachments over the Government land are got vacated as
expeditiously as possible and in no event later than six
months. It shall be the personal responsibility of all the DFOs
to ensure compliance of the aforesaid directions.”
7 On 27th July, 2015, while rejecting the prayer of modification in
order dated 6.4.2015, made on behalf of the State/respondent it was
observed and directed by the Court as under:-
“4. Before we pass any direction, we deem it proper to
record herein that it appears that the officials/officers of the
State have remained in deep slumber for a pretty long time
and have shut their eyes allowing the encroachers to
plant apple trees, which have now become fruit
growing trees/orchards, is suggestive of the fact that those
encroachers would have cut down the forest trees from the
encroached forest land, made that land vacant and thereafter,
would have made plantation. The least is said is better.
5. It is also not known as to whether any action
has been drawn by the State authorities against all
those encroachers, who have cut down the forest trees and
have made plantation of apple trees and whether any action
has been taken against all those officers/officials who were in
position from time to time.
6. It is made clear that we are not going to make any
modification in any of the interim directions passed from time
to time, but in order to preserve/protect the forests, the crops
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and the fruits, i.e. apples, we deem it proper to issue the
following directions:
(i) The State officers in general and the
Chief Secretary to the Government of Himachal
Pradesh and the Principal Secretary
(Forests) to the Government of Himachal
Pradesh in particular, are held responsible
to pluck the apples, conduct the sale of the
apples and utilize the sale price for planting forest
trees, which are known as forest species, and
not any other kind of plantation, i.e. apple,
pears, plum, cherries, almonds, etc.
(ii) They are directed to take a exercise of
pruning of apple trees, on the encroached
forest land, after plucking the apples in order
to minimize the apple crop in the coming
seasons.
(iii) They are also permitted to conduct sale of
standing crops on the encroached forest land
and utilize the sale price for the purpose of
plantation of forest trees and its
preservation with a further direction to ensure that
no person is allowed to sow seeds of any crop
on the encroached forest land. For the
coming seasons, if any crop grows on its own, i.e.
by natural process, that be destroyed.
7. The Chief Secretary to the Government of Himachal
Pradesh, the Principal Secretary (Forests) to the Government
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of Himachal Pradesh and the Director General of
Police are personally held responsible to monitor the
entire exercise and have also to execute an undertaking to
the effect that they will ensure that all directions passed by
this Court from time to time, including the directions
contained in this order, are implemented and complied with in
letter and spirit.
8. On 6th August, 2015, it was further directed as under:-
“6. In the given circumstances, we deem it proper to
pass following directions:
(i) The Staterespondents are directed to make
videography of the apple trees, other fruit
bearing trees and the crops standing on the
encroached forest land and also of the
auction proceedings.
(ii) Lodging of FIRs does not mean that
the encroachment proceedings have come
to an end, are to be kept under eclipse.
FIR relates to trespass and other offences
punishable under the applicable penal laws,
but the apple trees, other fruit bearing trees,
crops and other encroachments made on the
forest land are to be removed in terms of the
mandate of law read with the orders passed by
this Court from time to time and the fruits/crops
are to be dealt with in terms of the said
orders.
(iii) Encroachment on one inch or on
thousand inches, is an encroachment and
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the encroachers are liable to be evicted
and dealt with under law."
9. On 23rd August, 2016, it was directed as under:-
“2…..In the meantime, respondents are directed to comply
with all the orders, which have been passed by this Court
from the date this Court has taken cognizance till today.”
10. On 30th August, 2016, it was further directed as under:-
“4. In the given circumstances, we deem it proper to
issue the following directions:
(i) All the respondents are directed to comply
with the directions issued by this Court from time
to time;
(ii) If any process has been initiated by the
Government in terms of the reply filed in CWP No.
3141 of 2015, be expedited as per the law
applicable and in tune with the orders passed in
this petition;
(iii) The respondents are directed not to cut the
trees but go for pruning, as has already been
ordered by this Court vide order, dated 27 th July,
2015;
(iv) The respondents are directed to submit
details of the auction conducted and the
amount deposited during the auction proceedings
conducted in terms of orders, dated 27 th
July, 2015 and 6 th August, 2015.”
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11 On 18th October, 2016 it was further directed as under:-
“We direct the Principal Chief Conservator of
Forests, (HoFF), Himachal Pradesh to personally monitor and
ensure that all cases of at least Districts Shimla and Kullu be
firmly dealt with and encroachments over government/forest
land removed within the period so undertaken by him. We
clarify that failure to implement the orders of this Court and
abide by the undertaking furnished to this Court shall
tantamount to aggravation of contempt, consequences
whereof already stand explained to him. We are further
informed that with respect to all 1481 cases pertaining to
encroachments (less than 10 Bighas) in Rohru Forest
Division, the concerned District Forest Officer has passed
necessary orders. Also out of 418 cases of encroachment
pertaining to more than 10 Bighas, 399 cases already stand
decided.
As such, we direct the District Forest Officer, Rohru
to decide the remaining cases, positively within a period of
four weeks from today.
Further, where orders of eviction already stand
passed by the District Forest Officer, Rohru, Principal Chief
Conservator of Forests, (HoFF), Himachal Pradesh
undertakes to ensure eviction of all encroachers, within four
weeks.
We are further informed that in all 12 revenue
districts of the State of Himachal Pradesh, total number of
4299 cases of revenue challan were authorities, filed before
various revenue out of which 1277 cases stand decided and
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remaining 3022 cases are pending before various revenue
authorities. Mr. Anup Rattan, learned Additional Advocate
General, under instructions, assures the Court that under all
circumstances, all these cases would positively be decided
within a period of eight weeks from today. We direct it to be
so. Also, an affidavit indicating status of all these cases be
filed by the Principal Secretary, Revenue within a period of
two weeks from today.
We are further informed that out of 1277 such cases,
encroachments in respect of 908 cases stand removed and
process for eviction with respect to remaining 369 cases is in
progress. With respect to the same, Mr. Anup Rattan, learned
Additional Advocate General, under instructions, undertakes
to ensure removal of all encroachments within a period of four
weeks.”
12 Taking into consideration the aforesaid directions and
information placed on record, it was further directed on 6th December, 2017
as under:-
“14. In addition to the above, we deem it proper to issue
further directions to the following effect:-
i). It shall not only be obligatory but shall be the
personal responsibility of office bearers/officers,
irrespective of their rank and file, of Gram Panchayat,
Gram Sabha, Panchayat Samiti, Zila Parishad and
employees/officials of the Forest, Revenue and Police
Department to ensure that the orders passed by this
Court are complied with in its letter and spirit and in
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default, such officers/official liable for being
prosecuted and punished under the Contempt of
Courts Act.
ii). The Principal Chief Conservator of Forest shall
place on record the half yearly report submitted by the
Forest Guards with respect to the number of
encroachments alongwith the details as was directed
by this Court vide its order dated 06.04.2015 (supra)
and the consequent action taken thereupon.
iii). The respondents shall also submit a detailed
status report clearly stating therein the details of
proceedings of recovery of undue profit that had been
initiated by them in compliance to directions passed
vide order dated 06.04.2015 (supra).
iv). The respondents shall also ensure that in cases of
encroachments that have attained finality, no
encroacher(s) who is yet to be vacated for any reason
is permitted to enter the encroached land and
cultivate or develop the same or utilize the usufruct
thereupon and further ensure that the apple and other
fruit bearing trees standing thereupon are not
permitted to be pruned by the encroachers nor they
be permitted to dig its basin or spray the same. In
short to ensure that encroacher(s) is not permitted to
take any step to reap the harvest out of and from the
encroached land.
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v). Lastly, we direct the respondents to use drone not
only to keep hawk eye of 360 degree on encroached
areas but also detect the cases of fresh to cases
encroachment.”
13 In sequel to order dated 3rd September, 2024, fresh status
report dated 16th December, 2024 was filed on behalf of respondents No. 1,
2, 4 and 6 on affidavit of Deputy Conservator of Forest at Rohru Forest
Division Rohru, District Shimla stating therein as under:-
“2. That, it is submitted that total 37 encroachment
cases were detected/found in village Jharag in which challans
were filed before Collector-cum-DFO, Rohru under H.P. Public
Premises (Eviction and Rent Recovery) Act 1971. Out of the
total 37 cases, in 21 cases of the encroachment on the
Government/forest land has been evicted by the respondent
No.6 on spot as per (Annexure R-1) during the year 2015 and
2016. Thereafter, further evictions were carried out in 4 more
cases in compliance with Honorable High Court order dated
01.10.2024 in which encroachment on the Govt/Forest land
has also been removed on the spot and the possession of the
Govt./Forest land has also been removed on the spot and the
possession of the Govt/Forest land has been taken by the
Forest Department on 11-10-2024 and the Honorable High
Court was requested to grant further time to respondent No.6
to complete the evictions when the case was listed on
15.10.2024. Thereafter, the respondent No.6 has carried out
evictions in 4 more cases on 14-11-2024. (Consolidated List
submitted as Annexure R-II). The possession receipt
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certifying the taking over of the land from Sh. Inder Singh,
Joginder Singh, Devinde rsingh and Satya Prakash (through
LRs) by respondents are enclosed as (Annexure R-III, R-IV,
R-VI, R-V,. R-VI, R-VII, R-VIII, R-IX and R-X) respectively.
That in 03 cases appeals has been filed by the encorachers
before the Ld. Court of Divisiona Commissioner, Shimla
(Annexure R-XI).
3. That in 5 cases the encroachers could not be evicted by the
respondent due to the reason that the encroached land could
not be identified by the revenue officers/official as revenue as
well as Forest staff are already engaged in compliance of the
order of this Hon’ble Court passed in various cases tagged
with CWP No. 1093/2016 titled as Chatter Singh Vs. State of
HP and Ors and CWP No. 1028/2002. Hence, it is prayed that
respondent no.6 may be given additional time of one month
for conducting eviction and submitting compliance.”
14 As per aforesaid status report, total 37 encroachment cases
were detected/found in village Jhadag and out of that, except 8 cases,
encroachment was removed and encroachers were evicted. However, in
fresh affidavit dated 24th December, 2024 of Deputy Conservator of Forest
Rohru it has been informed that encroachment in all 37 cases, detected in
village Jhadag, stands removed by stating that encroachment in 21 cases
was removed during 2015-16, whereas eviction in 4 cases was carried out
and forest land has been taken back by the Forest Department on 11th
October, 2024, and encroachment in 4 more cases has been removed by
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Forest Department on 14th November, 2024. The detail of these 29 cases
have already been placed on record with affidavit dated 16th November,
2024 as Annexures R-1 and R-2. It has been further informed that eviction
in remaining 8 cases of encroachment on Government/Forest land has also
been completed by implementing the orders of Divisional Forest Officer-
cum-Collector. To substantiate the claim, copies of statements of persons
certifying taking over of the land from encroachers have been placed on
record as Annexures R-4 to R-9. List of cases has been placed on record
as Annexure R-3.
CWPIL No. 9 of 2015
15 On receiving communication dated 15th May, 2015 regarding
encroachment upon the forest land by large number of villagers in villages
Nagpuri Chaithla, Sewag Chaithla, Kadevag Chaithla with further complaint
of providing financial aid by Horticulture Department amounting to Rs.30
lacs to the encroachers for raising grading and packing house on the
encroached land, financial assistance for constructing Irrigation Water
Storage Tank, and water connection by the IPH Department and electricity
connection by the Electricity Board to the encroachers, the present petition
was directed by Hon’ble the Chief Justice to be registered as present
petition being CWPIL No. 9 of 2015.
16 Initially, State of Himachal Pradesh along with the
Government Departments, Officers and officials were arrayed as party, but
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later on private respondents were also arrayed as party respondents No. 12
to 48.
On 5th June, 2015 following directions were issued:-
“In the circumstances, we deem it proper to direct
the respondents to file a detailed report to the following
effect:-
a) What steps the respondents have taken to
remove the encroachments.
b) Whether the encroachers have been brought to
book.
c) Whether demarcation process has been started?
If yes, the stage of the same and the period within
which the same is likely to be concluded.
d) Whether any officer/official is hand in glove with
the encroachers and whether any departmental
inquiry has been drawn against such employees and
stage/outcome of the same.”
17 On 23rd June, 2015 this petition was tagged with CWPIL
No.17 of 2014 and thereafter, it has been adjudicated together and thus
directions/orders passed by the Court in CWPIL No 17 of 2014 and other
matters connected therewith, are also applicable to the present petition.
18 In sequel to order dated 3rd September, 2024, status report
dated 21st September, 2024 was filed on behalf of respondent No.2 on
affidavit of Additional Chief Secretary (Revenue) stating therein that
encroachment in all 57 cases of encroachment on the Government land
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have been evicted by the authorities of Revenue Department in compliance
of order of ejectment passed by the competent authority under Section 163
of H.P. Land Revenue Act, 1954 with further submission that encroachment
in the demarcated protected forest area has been removed by the
authorities of Forest Department regarding which separate status report
was being filed by the Principal Secretary (Forest) to the Government of
H.P. Details of 57 cases of encroachment, detected by the Revenue
Department and eviction made therein, has been given in this status report.
19 Vide instructions dated 12th November, 2024, placed on
record by learned Advocate Additional General, received from the
Divisional Forest Officer, Theog on the basis of communication dated 21st
October, 2024 send by the Tehsildar, Kotkhai, it has been communicated
that in all 57 cases warrant of ejectment has been executed and
encroachers have been evicted and possession has been taken over by the
officials of the Forest Department.
20 Separate status report dated 5th November, 2024 has been
filed by Additional Chief Secretary (Forest) stating therein that
encroachment made by Partap Chauhan, Dinesh Kumar, Sanjay Kumar,
Narayan Singh and Jagdish Tazta have been removed by the Forest
Department from R-13 Chambi Kupar during 2016 and as on date, land is
in possession of the Forest Department with further information that in 57
cases of encroachment found in UPFs, order passed by the competent
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Revenue Authority under H.P. Land Revenue Act, 1954 demarcation was
being conducted and possession was being taken by the Forest
Department and boundary marks were being fixed on the permanent
structures on the spot by and in the presence of field staff of Forest
Department.
CWPIL No. 17 of 2014 and CWPIL No. 9 of 2015
21 Believing the information placed on record in latest status
report filed on affidavit of responsible Officers of State/Department, no
further adjudication in these petitions with respect to encroachment of
Forest land/Government land, referred in letters treated as Public Interest
Litigation Petitions, is required except direction to all concerned
Departments/Offices/Institutions to ensure compliance of directions given in
earlier orders and herein-before today and being passed hereinafter to
remove the encroachment in a time bound manner and to prevent re-
occurrence thereof and to stop fresh encroachment in future.
22 For the information and material came in the notice of this
Court, before parting by disposing/closing these petitions, we are of
considered opinion that certain observations and directions being recorded
herein-after, are necessary for establishing ‘Rule of Law’ with respect to
issue involved herein in these petitions.
23 It is apt to record that status report dated 27th December,
2024, filed on the affidavit of Additional Chief Secretary (Revenue) in
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CWPIL No. 9 of 2015 in pursuance to order dated 1st October, 2024,
depicts as under:-
“(i) Number of cases under Section 163 of H.P. Land
Revenue Act, 1954 pending before the Assistant Collector
Grade-I & II.
Total number of cases: 5789
(ii) Number of cases under Section 163 of H.P. Land Revenue
Act, 1954 in which order of ejectment have been passed but
warrant of ejectment are pending for execution.
Total number of cases: 3746
(iii) Appeals under Section 14 of the H.P. Land Revenue Act,
1954 pending before the Sub-Divisional Collector.
Total number of cases: 457
(iv) Cases under the H.P. Public Premises (Eviction and Rent
Recovery) Act, 1971 pending before Sub-Divisional
Collectors.
Total number of cases: 118
(v) Cases under the H.P. Public Premises (Eviction and Rent
Recovery) Act 1971 before the Sub Divisional Collectors
wherein final orders of eviction have been issued but warrant
of ejectment is pending for execution.
Total number of cases: 42
(vi) Details of pending cases (revision petition under Section
17 and appeal under Section 14 of the H.P. Land Revenue
Act, 1954) related to encroachment before the Settlement
Officers:
Total number of cases: 95
(vii) Details of pending cases (revision petition under Section
17 and appeal under Section 14 of the H.P. Land Revenue
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Act, 1954) related to encroachment before the Divisional
Commissioners.
Total number of cases: 360
(viii) Total number of revision petition under Section 17 and
appeal under Section 14 of the H.P. Land Revenue Act, 1954
related to encroachment pending before Financial
Commissioner (Appeals).
Total number of cases: 177.”
24 On considering the aforesaid information, vide order 30th
December, 2024 directions were issued by this Court to ensure expeditious
adjudication of the cases and execution of warrant of removal of
encroachment by fixing a timeline for deciding the aforesaid cases,
whereupon in sequel thereto, Additional Chief Secretary (Revenue) to the
Government of Himachal Pradesh has issued directions dated 6th January,
2025 to all Divisional Commissioners, Settlement Officers, Deputy
Commissioners of Himachal Pradesh as under:-
“Subject: CWPIL No. 17/2024 titled as Court on its own
motion Vs. State of H.P. and others.
Sir/Madam,
In pursuant to the orders of Hon’ble H.P. High
Court dated 30.12.2024 passed in CWPIL No. 17/2024;
following directions are issued for disposal of all cases which
was reported to be pending:-
(1) All Assistant Collectors Grade-I and Grade-II shall
ensure to complete final adjudication of all the cases of
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encroachment pending before them under Section 163 of the
H.P. Land Revenue Act, 1954, latest by 30th June, 2025.
(2) All concerned Assistant Collectors 1st and 2nd Grade
shall ensure to execute all warrants of removal of
encroachment in cases, in which orders shall already been
passed, latest by 31st March, 2025.
(3) All Sub Divisional Collectors shall decide Appeals
under Section 14 of the H.P. Land Revenue Act, 1954,
pending before them in a time bound manner, latest by 30th
May, 2025.
(4) Sub Divisional Collectors shall ensure that execution
of warrants of eviction under the H.P. Public Premises
(Eviction and Rent Recovery) Act, 1971 in which they have
passed orders are completed by 31st March, 2025 in
coordination with the concerned Department/agency to which
premises belongs.
(5) Settlement Officers are also directed to ensure final
adjudication/completion of all pending cases i.e. Revision
Petitions under Section 17 and Appeals under Section 14 of
the H.P. Land Revenue Act, 1954 on or before 30th May,
2025.
(6) Divisional Commissioners shall ensure final
adjudication of Revision Petitions under Section 17 and
Appeals under Section 14 of the H.P. Land Revenue Act,
1954 as well as Revision Petitions under H.P. Public Premises
242025:HHC:3013-DB
(Eviction and Rent Recovery), Act, 1971 pending before them
on or before 30th May, 2025.
Deputy Commissioners shall supervise and review
the progress of disposal of cases in their respective Districts
at regular inervals. They will submit a monthly progress report
to the Government. Similarly, Divisional Commissioners shall
review the implementations of these directives within their
respective jurisdiction and submit compliance report well
within the stipulated period. The copy of order of Hon’ble High
Court passed in CWPIL No. 17.2024 is attached herewith and
it is advised that concerned authorities should go through the
directions contained in this order for strict compliance.
Yours sincerely,
Sd/-
(Onkar Chand Sharma)
Addl.Chief Secretary(Rev.) to the
Government of Himachal Pradesh”
25 The aforesaid directions are dealing with
reported/detected/complained encroachment cases which are being
adjudicated by the concerned authorities. But there is no audit of
unreported or undetected cases of encroachment upon the
Government/forest land. It is also necessary to deprecate the mentality and
habit of law breakers to make repeated attempts to encroach upon the
Government/Forest land.
26 Vide Notifications No. 1-21/71-LS.G. dated 8.6.1994 and UD-
A(3)-8/2007-II, dated 25.4.2016 issued by the Government of H.P. through
25
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Local Self Government Department/Department of Urban Development, the
Governor of Himachal Pradesh has conferred powers upon the Divisional
Forest Officers and Assistant Conservators of Forest of Forest Department
of Himachal Pradesh to perform the functions of Collector within their
respective jurisdiction of Forest Division under the H.P. Public Premises &
Land (Eviction & Rent Recovery), Act 1971 (Act No. 22 of 1971) (in short
PP Act) for removal of encroachment as well as unauthorized occupation of
forest land by exercising the power conferred by Clause ‘A’ of Section 2 of
PP Act.
27 The Officers of Forest Department by exercising the aforesaid
powers are initiating, adjudicating and deciding the eviction proceedings for
removal of encroachment as well as unauthorized occupation of the forest
land.
28 In large number of cases, it has been noticed that they are
lacking knowledge, skill and expertise with respect to contents, logic and
legal acumen in issuing notification under Section 4 of the Act, conducting
proceedings and writing daily orders in proceedings as well as final order of
eviction under the Act. Such shortcoming is not only causing miscarriage of
justice, but also loss to the public exchequer and of energy, time and
resources of the State and Courts and also leading to continuation of
unauthorized occupation/encroachment upon the forest/Government land
26
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because of setting aside of such eviction orders by judicial Courts including
the High Court and the Supreme Court.
29 It has been noticed that similar lapse and mistakes are also
committed by Assistant Collector 1st Grade and 2nd Grade as well as Sub
Divisional Officer (Civil)-cum-Sub Divisional Magistrate while exercising the
powers under Section 163 of H.P. Land Revenue Act as well as under PP
Act.
30 It has also been noticed that most of the Officers, posted and
appointed Divisional Commissioners and authorized to hear
Appeals/Revisions against the orders passed by the Collector under PP
Act are also mostly lacking legal acumen in conducting proceeding and
passing appropriate orders in Revision Petitions.
31 The lapse or mistakes on the part of aforesaid Officers acting
as Collector or Divisional Commissioner is because of lack of
training/orientation to improve skill, knowledge and expertise in manner of
issuing summons/notices, conducting proceedings, maintaining judicial
record of proceedings, passing/recording daily orders and skill for assigning
reasons, judgments/orders.
32 The aforesaid fact is also apparent from the recent order dated
28.11.2024 passed by the Supreme Court in Civil Appeal No.13362 of
2024 titled Babu Ram vs. State of HP and another with other connected
matters wherein the Supreme Court has observed as under:-
27
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“9. The Collector-cum-Assistant Conservator of Forests,
Rampur Bushahr Himachal Pradesh, upon consideration of
the response of Babu Ram to the show cause notice, the
evidence led by the parties and upon hearing them proceeded
to pass an order dated 7th November, 2015. The concluding
portion thereof recorded that for the “aforementioned
reasons”, the Collector was of the opinion that Babu Ram was
in unauthorized occupation of forest land that he required to
be evicted within thirty days from date of receipt of the order.
10. We have read the order dated 7th November, 2015 in
between the lines to trace the reasons premised whereon
Babu Ram was identified as an unauthorized occupant of
forest land. The order, inter alia, records preparation of a
challan put up by the Range Forest Officer, Nankhari before
the Collector alleging that Babu Ram was in unauthorized
occupation of forest land as the starting point based whereon
notice under Section 4 of the 1971 Act was issued. The order
then records the various dates on which the proceedings were
conducted by the Collector in course whereof Babu Ram
appeared with his witnesses and their statements were
recorded. This was followed by recording that written
arguments on behalf of the State has been fled and the case
finally heard on 7th November, 2015. On that very date, as
noticed above, the final order of eviction was passed for the
“aforementioned reasons” and requiring Babu Ram’s eviction.
The order does not record anything more.
11. There is no reason, far less cogent and tenable reason,
appearing on the face of the order of the Collector. Such order
merely records the various stages through which the
282025:HHC:3013-DB
proceedings passed and the Collector’s ipse dixit that Babu
Ram is an unauthorized occupant of forest land. The order of
the Collector does not meet the standards of a speaking order
that could be regarded as valid. The same does not record
what the claims and counter claims are. Why the evidence
adduced by one party was preferred to the evidence adduced
by the other is conspicuous by is absence. In fact, there is no
discussion of the eviction at all. Adverting to the materials on
record showing application of mind was the minimum which
was required of the Collector while he proceeded to adjudicate
proceedings, though administrative in nature, but was obliged
to act quasi-judicially. The order, without a doubt, is clearly in
breach of principles of natural justice and principles of fairness
in administrative action.
13. The order of the Divisional Commissioner being the
Appellate Authority who was approached by Babu Ram while
laying a challenge to the order dated 7th November, 2015 of the
Collector, fares no better. The Divisional Commissioner in the
penultimate paragraph of his order dated 08 th September,
2016 recorded that the Collector by a “speaking order” had
directed eviction of unauthorized occupants. There can be no
two opinions that the Divisional Commissioner too failed to
apply his mind.
14. Having regard to what we have observed above, the
order of the Collector falls totally short of a being a “speaking
order” and this finding of the Commissioner is clearly
indefensible.
15. We are a little surprise that these infirmities in the
original order of eviction as well as the appellate order went
292025:HHC:3013-DB
unnoticed by the High Court, which proceeded to dismiss the
writ petition of Babu Ram. Reasonable and adequate
opportunity of defence not having been extended, we have not
the slightest hesitation to set aside the original order of
eviction, the appellate order and the order of the High Court
dismissing the writ petition. Ordered accordingly.
…….
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 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.
30
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18. 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.
19. In 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 unauthorized occupants of forest land, if
the respondent-State proposes to proceed against them under
Section 4 of the 1971 Act.The notices 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.
20. If an order of eviction is passed, the same must be a
speaking order. The unauthorized occupant(s) in such case
shall be liberty to work out his/their remedy(s) in accordance
with other provisions of the 1971 Act.”
33 Therefore, we are of the considered opinion that all Divisional
Forest Officers, Assistant Conservators of Forests, Divisional
Commissioners or other Officers conferred with power under PP Act and/or
31
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HPLR Act to conduct proceedings for removal of encroachment and
unauthorized occupation of Government land are required to be trained and
oriented for complete, proper and final adjudication of such matters in just,
legal and fair manner.
34 Accordingly, Government through the Chief Secretary to the
Government of Himachal Pradesh is directed to ensure at least 5 days
training in the Himachal Pradehs Judicial Academy to each and all
aforesaid Officers regarding maintenance of judicial record, manner of
issuance of notice/summon and effecting service thereof, recording of daily
orders in judicial/quasi judicial proceedings, manner of conducting such
proceedings and also about necessary ingredients and skill of writing final
orders. Such training be made compulsory to all such Officers who are
holding or likely to hold such post, assigned duty under PP Act and/or
HPLR Act.
35 In aforesaid backdrop, these petitions are disposed of with
following directions:-
(i) The concerned Officers and Officials of all Departments/
Authorities, especially of the Revenue, Forest Department as
well as National Highway Authority of India, shall ensure that
there is no fresh encroachment on the Government/Forest
land/Public Roads/Public Paths in future by any other person
including ex-encroachers.
32
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(ii) Forest Guard(s), Patwari(s) and Work Inspectors shall
report all existing and/or any fresh encroachment upon
Government/Forest land/Public Road/Public Path in their
respective beat/area/ jurisdiction to the respective Deputy
Ranger/Kanungo/Junior Engineer with endorsement of copy of
such information to Divisional Forest Officer(s)/
Tehsildar(s)/Naib Tehsildar(s)/Assistant Engineer concerned
immediately on receiving information or on detection of such
encroachment without any delay and concerned Officer shall
ensure immediate action thereon in accordance with law to
remove encroachment, to protect the Government/Forest land/
Public Road from encroachment by taking preventive
measures.
(iii) The Forest Guards, throughout the State, during first
week of each month, shall furnish in writing the report through
Deputy Rangers, to concerned Divisional Forest Officers,
submitting the details of encroachment on the Government/
Forest land in his beat(s) with known probable date of such
encroachment or a written certificate declaring that there is no
unreported encroachment in his area.
(iv) Every Patwari posted in the field, during first week of
each month, shall furnish in writing the report through Field
Kanungo, to concerned Tehsildar(s)/Naib Tehsildar(s),
submitting the details of encroachment on the Government/
Forest land in his Patwar Circle(s) with known probable date
of such encroachment or a written certificate declaring that
there is no unreported encroachment in his area.
(v) Every Work Inspector posted in the field, during first
week of each month, shall furnish in writing the report through
33
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Junior Engineer, to concerned Assistant Engineer, submitting
the details of encroachment on the Public Roads/Public Path
with known probable date of such encroachment or a written
certificate declaring that there is no unreported encroachment
in his area.
(vi) Deputy Ranger/Kanoongo/Assistant Engineer on
receiving information from Forest Guard/ Patwari, or
otherwise, shall immediately report the same to the concerned
DFO/Tehsildar/Naib Tehsildar/Assistant Engineer and also
take any possible action on their part necessary in the given
facts and circumstances to prevent/remove the
encroachments upon Government/Forest Land/Public Roads.
(vii) On receiving information regarding encroachment, if any,
on Government/Forest land, concerned Divisional Forest
Officer or Assistant Collector 1st Grade/Assistant Collector 2nd
Grade/Assistant Engineer, as the case may be, shall ensure
prompt action and initiation of proceedings for
removal/eviction of such encroachment immediately but not
later than one month of receipt of such information.
(viii) Divisional Forest Officer/Assistant Collector 1st
Grade/Assistant Collector 2nd Grade/Assistant Engineer shall
submit his half yearly report to his next superior Officer with
respect to number of detected fresh cases of encroachment,
action taken thereon, previous pending cases with status
thereof during last three working days of month of June and
December of every year.
(ix) It shall be personal responsibility of Office bearers of the
Panchayat including Secretary(ies) to report of cases of
encroachment within their jurisdiction, in writing to the
34
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concerned Divisional Forest Officer/Assistant Collector 1st
Grad/Assistant Collector 2nd Grade, as the case may be, with
endorsement of copy of such information to concerned Deputy
Commissioner(s).
(x) The respondent/State is also directed to make suitable
changes in law by amending relevant Act/Rules appropriately
to assign such duty upon office bearer of Panchayat including
the Secretary as well consequences of violation of such duty.
(xi) The Deputy Commissioner shall monitor the action taken
on the information of encroachment submitted by the Forest
Guard/Patwari/officer bearer of the Panchayat/Work
Inspectors by calling periodical quarterly reports during first
week of January, April, July and October of every year related
to previous quarters.
(xii) The H.P. State Electricity Board and Jal Shakti Vibhag
shall ensure that no electricity and/or water connection is
provided to illegal structure raised over Government land
irrespective of nature of structure i.e. permanent, temporary or
simple tin structure. In case electricity and water connections
have been provided to such illegal structures, the Board and
Department shall initiate appropriate action for disconnecting
such connections by giving one month’s notice to the
encroachers by ensuring disconnection of such connection
within one month after expiry of one month’s notice.
(xiii) The concerned Department including the Revenue,
Forest and Public Works Departments shall initiate recovery
proceedings for undue profit earned by encroachers by not
only cutting down the trees but also utilizing the land by
sowing crops and raising orchards. This exercise shall be
35
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undertaken in all cases of encroachment where
encroachments have already been removed or are being
removed or will be removed in future.
(a) To assess the amount to be recovered in lieu of
forest trees illicitly felled or removed from the land shall
be computed/worked out on the basis of 5 years average
yield/market value of such trees.
(b)The benefit earned by utilizing the land shall also be
calculated on the basis of period of encroachment/
possession claimed by encroachers or ex-encroacher;
(c) Where no such period is claimed by encroacher, the
period for calculating the recovery of amount shall be
decided by determining the age of fruit growing trees
standing on the encroached land or estimated age of
construction raised upon the encroached land or any
other relevant evidence available to determining the
period of encroachment upon the Government land as
the case may be.
(d) In cases where period of encroachment is not
possible to be calculated on the basis of aforesaid
factors, the amount to be recovered may be calculated
by determining the period of encroachment from the date
of detection thereof but with reasons for not calculating
the amount on basis of aforesaid paras (a), (b) and (c).
(xiv) In all aforesaid cases where amount is recoverable from
encroachers or ex-encroachers and demand shall be raised
by concerned Department/Authority within two months from
today if not already raised and in case such amount is not
paid within reasonable period, to be determined on the basis
36
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of quantum of amount to be recovered, but not more than 6
months from the date of demand, the same shall be recovered
as arrears of land revenue under the H.P. Land Revenue Act,
1954. Demand in pending cases may be raised within two
months after finalization of proceedings.
(xv) The amount so recovered/collected from the
encroachers shall be utilized for afforestation in the land
evicted by encroacher or any ancillary purpose as may be
deemed fit and proper by the Department with expressed
permission of the concerned Deputy Commissioner.
(xvi) Cost of removal or eviction shall be recovered from
encroachers. Where encroachers did not remove the illegal
structure raised on encroached land, the same shall be
removed, if not required by concerned Department for any
beneficial use in the larger interest of public, the same shall be
removed by the Department and cost thereof shall also be
recoverable from encroachers.
(xvii) In all cases where encroachment has been removed or
is to be removed, the evicted land shall be fenced with barbed
wire at the cost of encroacher by fixing permanent boundary
marks with angle arms using the concrete.
(xviii) Where fruit growing trees are there on evicted
Government land, the concerned Department including he
Revenue and Forest Departments shall sale out the proceeds
of fruits by way of auction if practically viable to do so,
otherwise the fruits of such orchards may be left for
consumption of wild animals.
(xix) In case of sale of fruits, the amount shall be utilized for
afforestation or any other ancillary purpose. Such action shall
37
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be conducted under the supervision of concerned Deputy
Commissioner who shall be responsible to monitor the entire
exercise in just and lawful manner.
(xx) Videography of all proceedings or demarcation,
identification of Government land, eviction of encroachers
therefrom and auction of fruit”s sale, if any, shall be preserved
in the offices of concerned Divisional Forest Officer(s) and
Deputy Commissioner(s).
(xxi) No encroacher after finalization of eviction proceedings
shall be allowed to enter in the encroached land save and
except permitted by the competent Court of law.
(xxii) In addition to the proceedings for removal of
encroachment as already observed in various directions
passed by the Court in numerous cases including the present
petitions, the criminal cases/ FIR shall also be lodged for
trespass and other offences pending under the applicable
panle of laws. However, it is made clear that lodging of FIR
shall not amount of dispensing the authorities from initiating
the separate process for removal of encroachment.
(xxiii) In future, the Government shall also ensure imparting
training to all concerned Officers before the appointment to
the post assigned with duty to perform the function of
Collector under H.P. Public Premises Act and under Section
163 of H.P. Land Revenue Act. The training to the concerned
Officers likely to be promoted/appointed to the post assigned
with duty of Collector/Assistant Collector under PP Act and
Section 163 of H.P. Land Revenue Act shall be ensured in
advance before their such promotion/appointment. In case of
appointment by way of direct recruitment to such post, before
38
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the posting, the aforesaid training to such officer shall be
made compulsory/mandatory.
(xxiv) The respondents and all concerned Officers/authorities
are also directed to ensure removal of all encroachments from
the Government land as expeditiously as possible by
concluding the proceedings in a time bound manner keeping
in view the timeline notified by ACS (Revenue) vide
communication/instructions dated 6th January, 2025 referred in
para 24. It shall be personal responsibility of all concerned
Divisional Forest Officer(s)/Tehsildar(s) and Appellate and
Revisional Authorities to ensure compliance of aforesaid
directions.
(xxv) It shall be the responsibility of the concerned
Superintendent of Police to ensure safety and security of
the Officers/staff engaged for detecting/ removing
encroachments in/from Government/Forest Land, and also
to render adequate necessary prompt assistance to them
in performing their job. Failing in compliance, the
concerned Officer/official of the Police shall also be liable
for Departmental Proceedings, in addition to other
proceedings/consequences.
(xxvi) In absence of plausible explanation for any delay in
reporting and/or taking action shall invite civil, criminal and
departmental action as required in given facts and
circumstances.
(xxvii) Concerned Competent Authority, for giving
effect to the aforesaid directions by incorporating the same
in duty and also to provide action/ consequences of
dereliction of such duty, including civil/criminal/
Departmental Proceedings, shall amend the relevant law
39
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including Acts/Rules/Service Rules suitably. Till such
amendments, directions passed in this regard in these
petitions, shall hold the field as law for implementing the
directions and also for consequences on dereliction of duty
for not complying/adhering to the directions.
36 Aforesaid directions are in supersession of earlier directions.
37. It is made clear that if the affidavit placed on record along with
documents thereto in these petitions or information/certificates submitted by
officials/officers in furtherance to compliance of directions passed by the
Court is found to be false, then appropriate action in law shall be initiated
against the erring official/officers.
38 Concerned officials/officers in performing their duty, shall
ensure steps to protect the Government/Forest land from any type of
encroachment. On detecting encroachment on Government land, they (field
staff) shall report the same to the next Higher Authority/Officer, who, in turn,
shall ensure taking of immediate action for removal of such encroachment.
Encroachers shall not be allowed to regain their unauthorized
occupation/possession on any portion of Government/Forest land. In case
of dereliction of duty, Field Staff/concerned Higher Authority, as the case
may be, shall be liable to face, apart from contempt proceedings, the
criminal as well as departmental proceedings after immediate suspension
on finding unreported/overlooked encroachment/re-encroachment on the
40
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Government/Forest land. Departmental proceedings, in such a case, shall
be initiated for removal/dismissal from service.
39 The Chief Secretary is directed to ensure appropriate
decision/instructions for imparting training in terms of observations and
instructions passed herein-above in paras 33, 34 and 35(xxii) on or before
28th February, 2025.
40 The Chief Secretary as well as Secretaries of all other
Departments including Home/Revenue/Forest/ Panchayati Raj/Jal Shakti
Vibhag/Public Works, Director General of Police, National Highway
Authority of India and Executive Director of Electricity Board are directed to
issue necessary directions, on or before 28.2.2025, for implementation/
compliance of aforesaid directions.
41 Compliance report in this regard on respective affidavit of the
Chief Secretary, Secretaries, Director General of Police and Executive
Director of Electricity Board, National Highway Authority of India be filed on
or before 15th March, 2025, and matter be listed for consideration of
compliance on 26th March, 2025.
42 For ensuring compliance of directions passed in present
petitions in this judgment, any person may approach this Court including by
filing appropriate fresh petition in accordance with law.
43 Learned Advocate General is directed to transmit copy of this
order to the Chief Secretary to the Government of Himachal Pradesh and
41
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all other Secretaries and Officers as well as National Highway Authority of
India, and learned counsel for the Electricity Board is also directed to
transmit a copy of this judgment to the Board, for immediate compliance.
Petitions stand disposed of, along with pending application(s)
in aforesaid terms.
(Vivek Singh Thakur),
Judge.
(Bipin C. Negi),
Judge.
8th January, 2025
(ms)
