Himachal Pradesh High Court
Punam Gupta And Another vs State Of H.P. And Others on 5 August, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:17033-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1028 of 2002
Reserved on 28.05.2025
Decided on: 05.08.2025
___________________________________________________
.
Punam Gupta and another
……….. petitioners
Versus
State of H.P. and others ………respondents
____________________________________________________
Coram:
Hon’ble Mr. Justice Vivek Singh Thakur, Judge
Hon’ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting? 1 YesFor the petitioners
For the respondents
r to
:
:
Mr. Surinder Sharma, Advocate.
Mr. Anup Rattan, Advocate
General with Mr. Varun Chandel,
Additional Advocate General andMs. Seema Sharma, Deputy
Advocate General for respondents
No. 1 & 2/State.
: Mr. Balram Sharma, Deputy
Solicitor General of India, [Senior
Advocate] with Mr. Rajiv Sharma,
Advocate, for respondent No.3.
:
Mr. B.N. Misra, Sr. Advocate with
Ms. Vandana Misra, Advocate, forremaining respondents.
____________________________________________________
Bipin Chander Negi, JudgeBy way of the present petition the constitutional
validity of section 163-A of the HP Land Revenue Act (for purpose
of brevity referred to as the Act) has been questioned whereby
encroachments on Government land are sought to be regularised.
The provision reads as under:-
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
163A. Regularization of encroachment in certain
cases- Notwithstanding anything contained in
Section 163 of this Act, or any other law for the time
being in force, the State Government may make rules
regarding the regularisation of the encroachment on
Government land.
.
2. In the response filed by the respondent state to the
civil writ petition from the facts made available by the respondent
state there exist approximately 57,549 cases of encroachments
on Government land in the state covering an area of about
1,23,835 bighas of Government Land. There are about 12 bighas
in one hectare. Hence the aforesaid encroachments exist on
approximately 10,320 hectares of Government Land. Besides the
aforesaid in terms of the rules framed under the impugned
provision number of applications received as per the respondent
state for regularisation till 15-08-2002 are 1,67,339 and the area
involved is 24,198-27-58 hectares of land (Page 256 of the paper-
book).
3. Qua encroachments committed involuntarily on
account of inevitable circumstances not guided by choice the
apex court in Olga Tellis v. Bombay Municipal Corpn., (1985) 3
SCC 545 had declared as follows;
“There is no doubt that the petitioners are using
pavements and other public properties for an
unauthorised purpose. But, their intention or object in
doing so is not to “commit an offence or intimidate,
insult or annoy any person”, which is the gist of the
offence of “Criminal trespass” under Section 441 of
the Penal Code. They manage to find a habitat in
places which are mostly filthy or marshy, out of sheer
helplessness. It is not as if they have a free choice to::: Downloaded on – 05/08/2025 21:24:51 :::CIS
3exercise as to whether to commit an encroachment
and if so, where. The encroachments committed by
these persons are involuntary acts in the sense that
those acts are compelled by inevitable circumstances
and are not guided by choice”.
.
4. To the contrary qua deliberate, designed, reckless or
motivated infractions the apex court has categorically declared
that there can be no compounding. In this regard reference can
be made to case reported as Royal Paradise Hotel (P) Ltd. v.
State of Haryana and others, (2006) 7 SCC 597 (three-Judge
Bench). Relevant extract whereof is being reproduced;
“61. … If the laws are not enforced and the orders
of the courts to enforce and implement the laws areignored, the result can only be total lawlessness.
………… action is also necessary to check
corruption, nepotism and total apathy towards the
rights of the citizens.” M.C. Mehta v. Union of India &
others, (2006) 3 SCC 399 (three-Judge Bench)“8. ………. Even otherwise, compounding is not to
be done when the violations are deliberate,
designed, reckless or motivated. Marginal or
insignificant accidental violations unconsciouslymade after trying to comply with all the requirements
of the law can alone qualify for regularization whichis not the rule, but a rare exception…..”
5. Deliberate, designed, reckless or motivated
infractions/encroachments done voluntarily amount to an offence
of “Criminal trespass” under Section 441 of the erstwhile Penal
Code as they are done with an intent or object to “commit an
offence or intimidate, insult or annoy any person”, which is the
gist of the offence of “Criminal trespass”.
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6. In the state of Himachal Pradesh before the H.P.
Nautor Land Rules, 1968 were kept in abeyance, the cases of
encroachments on Government land used to be decided under
.
Rule 27-A of the said rules. Right from the year 1983, the
instructions qua regularisation of encroachments were issued by
the Government from time to time.
7. A detailed policy guidelines were issued on 4.7.1983
vide which regularisation was permitted for five bighas against
nazrana @ of Rs. 50 per bigha. Ownership was contemplated to
be granted upto 10 bighas against a penalty of three times of
current market value of the land encroached upon. Above 10
bighas not exceeding 15 bighas against payment of 5 times of the
market value; and encroachments exceeding 15 bighas upto 20
bhighas against 10 times of the market value. The encroachers
were to be ejected from the land encroached upon beyond 20
bighas. These rates were modified by instructions dated
27.8.1983. Under these instructions the maximum penalty was
three times of the market price for the slab between 15 to 20
bighas. The policy was revised on 27.4.1984 and on 20th August.
1987. In the 1987 Policy, the cutoff date was 30.8.1982 provided
the encroachment was continuing since 30.6.1970 or earlier. In
this Policy the encroachment in tribal areas was allowed upto 8
bighas and in other areas upto 5 bighas.
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8. The aforesaid regularisation policy was ultimately
revised in the year 1994. Under this policy the regularisation was
permissible upto 2 bighas of the land contiguous to the ownership
.
land. It was this Policy, when challenged by way of public interest
litigation, which was struck down by the Hon’ble High Court in
CWP No.122 of 1995, titled as Raj Kumar Singla v. State of H.P.
and another (DB; 16.9.1997), wherein this court had expressed
anguish on the failure of the Government to protect its property
which is really a property of the people of the State rather to the
contrary had indulged in legalising an illegality by an executive
action in favour of unscrupulous people who had encroached by
violating the provisions of law.
9. In the aforesaid backdrop a highpowered committee
was constituted to examine the issue of encroachment in the
state and was asked to suggest a viable solution to the endemic
problem. The highpowered committee so constituted after
deliberations proposed incorporation of section 163-A in the HP
Land revenue act. The viable solution to the endemic problem of
encroachment in other words was legalising an illegality. Besides
the provision it proposed to the Government to frame rules within
the following parameters:-
i) The extent of area that may be granted and
conditions of grant thereof:
ii) The categories of land which should be regularised
and the category of eligible persons for such grant;
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iii) The category of land of which the regularisation
should not be allowed; and
iv) The amount of compensation and penalty to be
imposed in different cases.
10. In view of the above parameters in the Policy
.
guidelines proposed by the highpowered committee the
Government was also required to consider the following
suggestions:-
i) The families whose holding is already to the extent
of 5 bighas and above should not be granted anyland under regularization scheme.
ii) The landless persons and persons whose holding
is less than 5 bighas should be granted land at the
rate of Nazarana bighas. 500 per bigha and inaddition a penalty of 50% of the Nazarana to the
extent of making their holding upto 5 bighas.
iii) The erstwhile shamalat lands on which the estate
right-holders had constructed residential houses or
cow-sheds before its vestment in the State should beregularized without any compensation.
iv) Cases of encroachments initiated for such
erstwhile shamlat lands and also the cases of villagecommon lands which were wrongly vested in the
State, may be dropped.
11. The encroachment on the following categories of
land was proposed by the highpowered committee not to be
regularised:-
i) encroachments on land of common village use
including properties belonging to Temples, Mosques,
Gurudwaras where religious and other ceremonies
are normally held. recorded and recognized paths
both for human beings and Dargahs, lands used for
village common purposes cattle and land under
burial ghats/grounds, cemeteries, graveyards, village
ponds/tanks and water harvesting facilities/check::: Downloaded on – 05/08/2025 21:24:51 :::CIS
7dams, playing grounds, School and Dharmshalas
etc.
ii) land where encroachments are under the enquiry
by Police, Enforcement, Vigilance or investigation by
these authorities or under the consideration of courts.
of law in criminal proceedings.
iii) land which is under forests and has been
recorded in the land records as RF, DPF, UPF, PF,
Class-III forests Jungle dehati, etc. after duly
identified & notified under the Indian Forest Act.
iv) encroachments by a non-resident person of the
‘Mohal’ may not be regularised. However, a landless
person who has been given land in ‘Mohal’ by the
competent authority shall be deemed to be the
resident of the ‘Mohal’ and his encroachment could
be regularised.
v) No encroachment shall be regularised in
contravention of the provisions of the H.P. Ceiling on
Land Holdings Act and the Village Common Lands
(Vesting and Utilization) Act, 1974.
12. How the recommendations of the HighPowered
Committee were dealt with is best summarized in paragraph 6
(preliminary submissions) of the reply filed by the respondent
state to the civil writ petition. The same is being reproduced
here-in-below for a ready reference;
“6. That on the recommendations of the High
Powered Committee, response of public at large and
Panchayati Raj Institutions and after the discussions
at various levels convening meetings at Sub-Division
levels associating all sections of society including
advocates the draft rules were also published in the
Rejpatra (Extra-ordinary) dated 24.5.2002 for inviting
suggestions/objections from the general public
despite of this fact the Government went further to
inform the general public including all sections of the
society by conducting meetings in each district of the
State headed by Hon’ble Minister of State(Revenue)
accompanied/assisted by the Deputy Secretary::: Downloaded on – 05/08/2025 21:24:51 :::CIS
8(Revenue) to the Government of Himachal Pradesh
between 18.5.2002 to 19.6.2002 which clearly shows
the intention of the State Government to form a law
beneficial to the down trodden, weaker and needy
section of the society keeping in view their socio-
economic status”.
.
13. In the response filed reasons cited for bringing about
the amendment i.e incorporation of section 163-A in the HP Land
Revenue Act have been narrated. The same being; (a) to make
the holdings of the small and marginal farmers economical; (b)
was to carve out an exception to section 163 of the HP Land
Revenue Act which deals with removal of encroachments on
government land and (c) to generate revenue. Relevant
paragraphs of the response in this regard to the civil writ petition
are being reproduced herein below for a ready reference;
“That in Himachal Pradesh Abolition of Land
Revenue on Un-Economic Holding Act, 1978 land notexceeding two and a half acre i.e. 12-10 bigha has
been defined as un-economic holding. In the
Himachal Pradesh Relief of Agricultural IndebtednessAct, 1976 the person for the relief of Agriculture
Indebtedness who holds land not exceeding one
hectare i.e. 12-10 bighas of un-irrigated land or halfhectare i.e.6-05 bighas of irrigated land has been
defined as marginal farmers and an agriculturist who
earns his lively hood mainly by agriculture and whoholds more than one hectare (12-10 bighas) and less
than two hectare (25 bighas) un-irrigated land or its
50% of irrigated land has been defined as small
farmer. Keeping in view all this and limit prescribed
for nautor grant, the limit has been fixed in the
impugned rules for benefiting these small and
marginal farmers which is primary duty of the
government according to the directive principles.
That the contents of this para are denied as the
provisions of Section 163-A is supplementary to
provisions of Section 163. In any case it may be::: Downloaded on – 05/08/2025 21:24:51 :::CIS
9considered as exception carved out to the provisions
which is permissible under law. One exception has
been carved out by legislating such provision and the
regularization of encroachment has been allowed in
certain cases i.e. land upto 200 Sq. metres/20 bighas
in Urban/ Rural areas including own land of.
encroacher will only be regularized and in other
cases stringent action has been enacted rather
encroachment has been made a criminal offence
which was not previously under section 163.
It is also pertinent to mention here that these rules
will not only uplift the downtrodden but also add
revenue to State Exchequer by collecting money in
form of penalty, which is to be utilized for
development purposes in public interest”.
14. However in the statement of objects and reasons qua
Section 163 A (legislative intent) the following has been stated;
“The Provisions regarding prevention and ejectment
from encroachment upon Government land is being
made more stringent so that this menace is curbed.
The State Government framed a policy to deal with
the cases of regularisation of encroachments on
Government land. The policy was revised from timeto time but the same was not implemented. In the
meanwhile, the H.P. High Court struck down the last
policy framed in 1994 being ultra virus of the
provisions of the Act as it lacked statutory support.
Hence, the State Government is being empowered to
make rules regarding the regularisation of theencroachment on the Government land”.
Attempt in the reply to the CWP is to supplement by fresh
reasons validity of the impugned provision i.e. Section 163A of the
H.P. Land Revenue Act. Besides the statement of objects and
reasons reflect an incongruity. The state on the one hand sets out
to deal with the menace of encroachment on government land by
making the provision in this regard more stringent (section 163 of
the act) and simultaneously sets out section 163-A (impugned
provision) to legalise an illegality as pointed out in CWP No.122 of
1995, titled as Raj Kumar Singla v. State of H.P. and another (DB;
16.9.1997).
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15. In the State of Himachal Pradesh the allotment of
land to landless persons is made under the following three
schemes:-
.
(i) The H.P. Utilization of Surplus Area Scheme,
1974.
(ii) The H.P. Grant of land to Landless Persons or
other Eligible Persons Scheme, 1975.
(iii) The H.P. Village Common Land Vesting and
Utilization Scheme, 1975.
The schemes at (i) & (ii) above are statutory
schemes whereas, the scheme at (iii) above is in the nature of
allotment of Government Waste Land on the pattern of H.P.
Nautor Land Rules, 1968.
16. An enactment represents the will of the people.
Hence carries with it a presumption of constitutionality. Court is
expected to recognize the fundamental nature and importance of
legislative process and accord due regard and deference to the
same. Unconstitutionality of an enactment must be plainly and
clearly established. In this respect reference can gainfully be
made to State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453,
at page 466 relevant extract whereof is being reproduced
hereinbelow:
“The approach of the court, while examining the
challenge to the constitutionality of an enactment, is
to start with the presumption of constitutionality.
The court should try to sustain its validity to the
extent possible. It should strike down the enactment
only when it is not possible to sustain it. The court
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11to pick holes or to search for defects of drafting,
much less in exactitude of language employed.
Indeed, any such defects of drafting should be
ironed out as part of the attempt to sustain the
validity/constitutionality of the enactment. After all,
an Act made by the legislature represents the will.
of the people and that cannot be lightly interfered
with. The unconstitutionality must be plainly and
clearly established before an enactment is declared
as void. The same approach holds good while
ascertaining the intent and purpose of an enactmentor its scope and application.
Indeed, it is surprising that the Court has not even
referred to the long preamble to the Act which
clearly sets out the context and purpose of thesaid enactment. It was put in at such length only
with a view to aid the interpretation of its
provisions. It was not done without a purpose. To
call the entire exercise a mere waste is, to say theleast, most unwarranted besides being
uncharitable. The court must recognize thefundamental nature and importance of legislative
process and accord due regard and deference to
it, just as the legislature and the executive are
expected to show due regard and deference to the
judiciary. It cannot also be forgotten that ourConstitution recognises and gives effect to the
concept of equality between the three wings of the
State and the concept of “checks and balances”
inherent in such scheme”.
Though the above propositions are well settled, it
may not be out of place to refer to a few decisions. In Charanjit
Lal Chowdhury v. Union of India Fazl Ali, J. stated:
” … it is the accepted doctrine of the American
Courts, which I consider to be well founded on
principle, that the presumption is always in favour of
the constitutionality of an enactment, and the burden
is upon him who attacks it to show that there has
been a clear transgression of the constitutional
principles.”
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In Burrakur Coal Co. Ltd. v. Union of India (AIR at p.
963), Mudholkar, J., speaking for the Constitution
Bench, observed:
“Where the validity of a law made by a competent
legislature is challenged in a court of law, that court
is bound to presume in favour of its validity. Further,.
while considering the validity of the law the court will
not consider itself restricted to the pleadings of the
State and would be free to satisfy itself whether
under any provision of the Constitution the law can
be sustained.”
We may quote the pertinent propositions enunciated
in Ram Krishna Dalmia v. Justice S.R. Tendolkar to the
following effect:
“(b) that there is always a presumption in favour of
the constitutionality of an enactment and the burdenis upon him who attacks it to show that there has
been a clear transgression of the constitutionalprinciples;
* * *
(e) that in order to sustain the presumption of
constitutionality the court may take into considerationmatters of common knowledge, matters of common
report, the history of the times and may assume
every state of facts which can be conceived existing
at the time of legislation; and …”
We may also refer to the following perceptive
observations in the decision of Lord Denning in Seaford Court
Estates Ltd. v. Asher:-
“Whenever a statute comes up for consideration it
must be remembered that it is not within human
powers to foresee the manifold sets of facts which
may arise, and, even if it were, it is not possible to
provide for them in terms free from all ambiguity. The
English language is not an instrument of
mathematical precision. Our literature would be much
the poorer if it were. This is where the draftsmen of
Acts of Parliament have often been unfairly criticized.
A judge, believing himself to be fettered by the::: Downloaded on – 05/08/2025 21:24:51 :::CIS
13supposed rule that he must look to the language and
nothing else, laments that the draftsmen have not
provided for this or that, or have been guilty of some
or other ambiguity. It would certainly save the judges
trouble if Acts of Parliament were drafted with
divine prescience and perfect clarity. In the.
absence of it, when a defect appears a judge
cannot simply fold his hands and blame the
draftsman. He must set to work on the constructive
task of finding the intention of Parliament, and he
must do this not only from the language of thestatute, but also from a consideration of the social
conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he
must supplement the written word so as to give
‘force and life’ to the intention of the legislature. Thatwas clearly laid down by the resolution of the judges
in Heydon case5, and it is the safest guide today.
Good practical advice on the subject was given about
the same time by Plowden…. Put into homelymetaphor it is this: A judge should ask himself the
question: If the makers of the Act had themselvescome across this ruck in the texture of it, how
would they have straightened it out? He must
then do as they would have done. A judge must
not alter the material of which it is woven, but hecan and should iron out the creases.”
17. “Individual Responsibility”; it is a bounden duty of
the citizen to obey, follow the rules made for their own benefits
and which are in larger public interest. Disobedience thereof
results in lawlessness. Article 51-A(g) casts a duty upon every
citizen of India, inter alia, to protect and improve the national
environment including forests, lakes, rivers, wildlife and to have
compassion for living creatures. Section 441 of the erstwhile
Indian Penal Code (Section 329 of the Bharatiya Nyaya
Sanhita (BNS) which dealt with Criminal trespass read as
follows;
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“441. Criminal trespass.–Whoever enters into or
upon property in the possession of another with
intent to commit an offence or to intimidate, insult or
annoy any person in possession of such property, or
having lawfully entered into or upon such property,
unlawfully remains there with intent thereby to.
intimidate, insult or annoy any such person, or with
intent to commit an offence, is said to commit
“criminal trespass”.
In its application to the State of Uttar Pradesh and
Orissa, for Section 441, the following was
substituted:–
“441. Criminal Trespass.–Whoever enters into or
upon property in possession of another with intent to
commit an offence or to intimidate, insult or annoyany person in possession of such property, or, having
lawfully entered into or upon such property,
unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or withintent to commit an offence, or having entered into or
upon such property, whether before or after the
coming into force of the Criminal Laws (U.P.
Amendment) Act, 1961, with the intention of taking
unauthorised possession or making unauthoriseduse of such property fails to withdraw from such
property, or its possession or use when called upon
to do so by that another person by notice in writing,
duly served upon him, by the date specified in thenotice, is said to commit ‘criminal trespass’.” [Vide
U.P. Act 31 of 1961]”
18. In the backdrop of galloping trend of unauthorised
occupation of public premises, the failure of Governments to
control the growing tendency of unauthorised occupation of public
premises, inaction/leisurely manner on the part of the authorities
entrusted with the task of ensuring eviction of unauthorised
occupants under the existing law and acting only when the court
gives command forced the apex court in S.D. Bandi v. Karnataka
SRTC, (2011) 15 SCC 695 to direct the Governments of all the
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States and Union Territories to consider the desirability of making
amendment in Section 441 of the Penal Code, 1860 (Section 329
of the Bharatiya Nyaya Sanhita (BNS) in line with the State
.
amendments made by the States of Orissa and Uttar Pradeshand
to make unauthorised occupation of public premises a non-
bailable offence.
19. The Union of India in its response stated that there
was no necessity to amend the law as the number of
unauthorised occupants is very small. Majority of the State
Governments had also shown disinclination to make appropriate
amendment. Seeing their attitude proceedings were closed.
20. “State responsibility” to protect the natural
resources of the earth is clearly enunciated in the United Nations
Conference on the Human Environment, Stockholm 1972
(Stockholm Convention), to which India was a party. The relevant
clause therein states:
“The natural resources of the earth, including the air,
water, land, flora and fauna and especially
representative samples of natural ecosystems, mustbe safeguarded for the benefit of present and future
generations through careful planning or
management, as appropriate.”
21. Article 48-A directs that the State shall endeavour to
protect and improve the environment to safeguard the forests and
wildlife of the country. The constitutional mandate is also that the
natural resources belong to the people of this country. The natural
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resources are vested with the Government as a matter of trust to
the people of India. It is the solemn duty of the State to protect the
natural resources and to use the same in the interest of the
.
country and not in private interest. (Reliance Natural Resources
Ltd. v. Reliance Industries Ltd.2010(7)SCC 1, Assn. of Unified
Tele Services Providers v. Union of India, (2014) 6 SCC 11).
22. Duty of the State is to govern. Good governance
includes implementation of the statutes in existence which deal
with encroachment. Failure of the government, in having the
provisions of such statute implemented, amounts to failure in
governance. It promotes dishonesty and encourages violation of
law.
23. The ‘doctrine of public trust’, which was evolved in
Illinois Central Railroad Co. v. People of the State of Illinois,
146 US 387 : 36 L Ed 1018 (1892), has been held by the apex
Court to be a part of the Indian jurisprudence in M.C. Mehta v.
Kamal Nath 1997 (1) SCC 388 and has been applied in
Jamshed Hormusji Wadia v. Port of Mumbai2004 (3) SCC 214,
Intellectuals Forum v. State of A.P.(2006) 3 SCC 549 and
Fomento Resorts and Hotels Ltd. v. Minguel Martins2009 (3)
SCC 571.
24. The notion of public interest is generally informed
with the dictates of public trust doctrine. Welfare of the public is
the supreme in law. Individual welfare shall, in cases of necessity,
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yield to that of the public and collective good in the areas of
health, law and order, peace, security and a clean environment.
Private interest vis-a-vis public interest is lucidly explained in
.
Sayyed Ratanbhai Sayeed (Dead) through LRs & others vs.
Shirdi Nagar Panchayat & another, (2016) 4 SCC 631).
Relevant extract whereof is reproduced hereinbelow;
“58. The emerging situation is one where private
interest is pitted against public interest. The notion of
public interest synonymises collective welfare of the
people and public institutions and is generallyinformed with the dictates of public trust doctrine –
res communis i.e. by everyone in common.
Perceptionally health, law and order, peace, security
and a clean environment are some of the areas ofpublic and collective good where private rights being
in conflict therewith has to take a back seat. In the
words of Cicero “the good of the people is the chief
law”.
59. The Latin maxim Salus Populi Suprema Lex
connotes that health, safety and welfare of the public
is the supreme in law. Herbert Broom, in his
celebrated publication, A Selection of Legal Maxims
has elaborated the essence thereof as hereunder:
“This phrase is based on the implied agreement of
every member of the society that his own individualwelfare shall, in cases of necessity, yield to that of
the community; and that his property, liberty and life
shall, under certain circumstances, be placed injeopardy or even sacrificed for the public good.”
25. According to Prof. Joseph L. Sax in his authoritative
article “The Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention”, Michigan Law Review, Vol. 68,
No. 3 (Jan. 1970) pp. 471-566] , three types of restrictions are
imposed on governmental authority by the public trust doctrine:
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1. the property subject to the trust must not only be
used for a public purpose, but it must be held
available for use by the general public;
2. the property may not be sold, even for fair cash
equivalent;
.
3. the property must be maintained for particular
types of use (i) either traditional uses, or (ii) some
uses particular to that form of resources.
(See Intellectuals Forum v. State of A.P., (2006) 3
SCC 549, at page 575)
26. The debate between the present developmental,
economic needs and that of the environment without
compromising the ability of the future generations to meet their
own needs has produced the concept of “sustainable
development”. This concept, is defined in the 1987 report of the
World Commission on Environment and Development
(Brundtland Report) as “Development that meets the needs of the
present without compromising the ability of the future generations
to meet their own needs.”
27. While dealing with the principle of “Inter-
Generational Equity” i.e safeguarding natural resources for the
benefit of the present and future generations the apex Court in
A.P. Pollution Control Board v. Prof. M.V. Nayudu(1999) 2
SCC 718 in para 53 held as under: (SCC p. 739)
“53. The principle of inter-generational equity is of
recent origin. The 1972 Stockholm Declaration refers
to it in Principles 1 and 2. In this context, the
environment is viewed more as a resource basis for
the survival of the present and future generations.
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19
‘Principle 1.–Man has the fundamental right to
freedom, equality and adequate conditions of life, in
an environment of quality that permits a life of dignity
and well-being, and he bears a solemn responsibility
to protect and improve the environment for the
present and future generations….
.
Principle 2.–The natural resources of the earth,
including the air, water, lands, flora and fauna and
especially representative samples of natural
ecosystems, must be safeguarded for the benefit of
the present and future generations through careful
planning or management, as appropriate.
28. In making laws and in understanding the scope and
purport of laws enacted by the State Legislatures the aforesaid
principles, “Inter-Generational Equity”, “sustainable development”,
“The Public Trust Doctrine”, “State responsibility”, Article 48-
A(State shall endeavour to protect and improve the environment
to safeguard the forests and wildlife of the country), “individual
responsibility”, Article 51-A(g)( duty of every citizen of India, inter
alia, to protect and improve the national environment including
forests, lakes, rivers, wildlife and to have compassion for living
creatures), Article 21(which gives environmental protection and
conservation of natural resources status of a fundamental right)of
the Constitution are to be kept in mind.
29. Articles 48-A and 51-A(g) have to be considered in
the light of Article 21 of the Constitution which provides that no
person shall be deprived of his life and liberty except in
accordance with the procedure established by law. Any
disturbance of the basic environment elements, namely, air, water
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20
and soil, which are necessary for “life”, would be hazardous to
“life” within the meaning of Article 21 of the Constitution.( See
Tata Housing Development Co. Ltd. v. Aalok Jagga, (2020) 15
.
SCC 784).
30. Article 14 of the Constitution of India envisages
equality before law and equal protection of law. Equality before
law envisages that equals are to be treated alike and un-equals
are not to be treated alike. By condoning the illegal acts of the
violators, who carry out encroachments by violating the provisions
of the law, State intends to treat such law breakers equal to those
persons who abide by the law. This is arbitrariness, because by
treating un-equals alike, the State is violating Article 14 of the
Constitution of India. The impugned provision is in fact legislation
for a class of dishonest persons, which is also prohibited. Also, it
defies logic being capricious and unreasonable.
31. The object of the impugned provision, i.e. to
regularize all illegal encroachments, in itself is violative of Article
14 of the Constitution of India. Article 14 is not meant to
perpetuate illegality or fraud. It has a positive concept. Equality it
is well settled cannot be claimed in illegality and therefore, cannot
be enforced by a citizen or Court in a negative manner. (Fuljit
Kaur v. State of Punjab and others, (2010) 11 SCC 455).
32. Article 14 of the Constitution of India permits
classification, however, the said classification has to be based on
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21
an intelligible differentia and that intelligible differentia ought to
have some nexus with the object to be achieved. In the present
case, even if it is said that classification of the persons, so
.
created by way of the impugned amendment, is based on
intelligible differentia, as it consists of those persons who carried
out encroachments in violation of the statutory provisions, yet this
classification, in our considered view, is not a valid classification,
as envisaged under Article 14 of the Constitution of India,
because regularization of illegal encroachments cannot be said to
have nexus with the object sought to be achieved, which in any
case has to be lawful. Nagpur improvement Trust and Anr v
Vithal Rao and Ors, 1973 (1) SCC 500.
33. If the impugned provision is permitted to remain in
the Statute, it would defeat the very purpose for which the Statute
was created. In the Act, there exists Section 163 whereby a
detailed mechanism has been provided under the statute for
removal of encroachment from government land. As has already
been stated earlier Section 163 has now been made more
stringent. (See the object and reasons reproduced herein above
qua section163-A).In other words, the impugned amendment
violates the very edifice of the Principal Statute. Can the object
sought to be achieved be said to be lawful. It is destructive of the
aim and object of the Parent Statute; it defeats its laudable object;
it defies the constitutional provisions; it is demonstratively and
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22
excessively contradictory and mutually destructive. Such a
statutory provision cannot be permitted to remain on the statute
book.
.
34. The Court cannot be a silent spectator and is bound
to perform its constitutional duty for ensuring that the public
property is not frittered by unscrupulous elements in the power
corridors and acts of grabbing public land are properly enquired
into and appropriate remedial action taken. (Dina Nath v. State
of U.P., (2010) 15 SCC 218).
35. It promotes dishonesty and encourages violation of
law. Significantly, no action stands taken against the erring
officials, who, in connivance, allowed such encroachments to
happen, throughout the State. It is not that thousands of
encroachments came up overnight. The officials failed to
discharge their duties. The functionaries adopted an ostrich like
attitude and approach.
36. Any indulgence on the part of the State/ Legislators,
in protecting such dishonesty, would lead to anarchy and destroy
the democratically established institutions, also resulting into
indiscrimination. This is manifest arbitrariness. Also, it is
excessive and capricious.
37. In the Act under section 163, an encroacher against
whom proceedings for removal of encroachment have been
initiated can invoke a plea of adverse possession. Though we got
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23
the law of adverse possession from the British, the apex court in
State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 noticed
the negative view of the English courts towards the law of
.
adverse possession in the judgment of Beaulane Properties Ltd.
v. Palmer (2005) 3 WLR 554 : (2005) 4 All ER 461.The archaic,
outmoded law of adverse possession which ousts an owner on
the basis of inaction within limitation was observed by the apex
court to be irrational, illogical, wholly disproportionate, in conflict
with justice and one which an ordinary Indian citizen would find
reprehensible. Such a lawwhich placed premium on dishonesty
by legitimising possession of a rank trespasser and compelling
the owner to lose his possession in the considered view of the
apex court required a re-look by the legislature. Relevant extract
of State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 is
being extracted hereinbelow;
36. In HemajiWaghaji Jat case2009 (16) SCC 517 this
Court ultimately observed as under: (SCC p. 529,
paras 32-33)
“32. Before parting with this case, we deem it
appropriate to observe that the law of adverse
possession which ousts an owner on the basis of
inaction within limitation is irrational, illogical and
wholly disproportionate. The law as it exists is
extremely harsh for the true owner and a windfall for a
dishonest person who had illegally taken possession
of the property of the true owner. The law ought not to
benefit a person who in a clandestine manner takes
possession of the property of the owner in
contravention of law. This in substance would mean
that the law gives seal of approval to the illegal action
or activities of a rank trespasser or who had
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24
wrongfully taken possession of the property of the
true owner.
33. We fail to comprehend why the law should place
premium on dishonesty by legitimising possession of
a rank trespasser and compelling the owner to lose
.
his possession only because of his inaction in taking
back the possession within limitation.”
43. It is our bounden duty and obligation to ascertain
the intention of Parliament while interpreting the law.
Law and justice, more often than not, happily
coincide, only rarely we find serious conflict. The
archaic law of adverse possession is one such. A
serious relook is absolutely imperative in the larger
interest of the people.
44. Adverse possession allows a trespasser–a
person guilty of a tort, or even a crime, in the eye of
the law–to gain legal title to land which he has
illegally possessed for 12 years. How 12 years of
illegality can suddenly be converted to legal title is,
logically and morally speaking, baffling. This
outmoded law essentially asks the judiciary to place
its stamp of approval upon conduct that the ordinary
Indian citizen would find reprehensible. The doctrine
of adverse possession has troubled a great many
legal minds. We are clearly of the opinion that time
has come for change.
38. With respect to adverse possession vis-à-vis
property dedicated to public use the apex court in Ravinder Kaur
Grewal v. Manjit Kaur, (2019) 8 SCC 729 has stated the
following;
“63. When we consider the law of adverse
possession as has developed vis-à-vis to property
dedicated to public use, courts have been loath to
confer the right by adverse possession. There are
instances when such properties are encroached
upon and then a plea of adverse possession is
raised. In such cases, on the land reserved for public
utility, it is desirable that rights should not accrue.
The law of adverse possession may cause harsh::: Downloaded on – 05/08/2025 21:24:51 :::CIS
25consequences, hence, we are constrained to
observe that it would be advisable that concerning
such properties dedicated to public cause, it is made
clear in the statute of limitation that no rights can
accrue by adverse possession”.
.
39. Learned counsel for the petitioner has also submitted
that during pendency of present Writ Petition, State of HP in the
year 2017 vide Notification dated 19.04.2017 had notified Draft
Rules for regularization of encroachment by publishing the same
in the Rajpatra of Himachal Pradesh for inviting objections. He
has further submitted that though Rules were never finalized but
on the basis of said Draft-Notification, a large number of persons
had approached this Court for staying the eviction proceedings
initiated by Competent Authorities for removal of encroachment
from the Government land on account of the pending proposal to
frame such Rules for regularization of encroachment, and in
number of cases, including CWP No. 2559 of 2016 titled as
Vimla Devi vs. State of HP, this Court has granted
stay/protection against removal of such encroachers till formation
of such Rules but subject to judicial scrutiny of those proposed
Rules. It has been further submitted that for the ground already
taken in present case, framing of such proposed Rules also
deserve to be interfered with.
40. Learned Advocate General during hearing had made
statement at Bar, as was also informed by him in CWP No. 179 of
2017 titled Rajiv vs. State of HP and other connected matters
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26
decided on 26.9.2024 and similar matter i.e. CWP No. 685 of
2017 titled Bahadur Singh vs. State decided on 23.10.2024,
CWP No. 2317 of 2025, titled Jagdish vs. State of HP and
.
others connected matters decided on 18.6.2025, that State
Government is not going to finalize or frame any Rules for
regularization of encroachment on the basis of Draft Rules
published vide Notification dated 19.4.2017 or otherwise and as
on date, there is no proposal pending with this Government for
framing any Rule or framing Policy for regularization of
encroachment.
41. It is also relevant to refer here to the directions
issued by this Court in CWPIL Nos. 17 of 2014 and 9 of 2015
decided on 8.1.2025 regarding detection, reporting, initiation of
proceedings against and removal of encroachment which assume
relevance in present matter on account of the view being taken
qua Section 163-A of the H.P. Land Revenue Act. The directions
issued in CWPIL Nos. 17 of 2014 and 9 of 2015 are as follows:-
“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
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27Roads/Public Paths in future by any other
person including ex-encroachers.
(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
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28
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 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
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29
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 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 as consequences of
violation of such duty.
(xi) The Deputy Commissioner shall monitor the
action taken on the information of
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30
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 undertaken in all cases of
encroachment where encroachments have
already been removed or are being removed
or will be removed in future.
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31
(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 of quantum of amount to be recovered, but
not more than 6 months from the date of demand,
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32
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.
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33
(xix) In case of sale of fruits, the amount shall be
utilized for afforestation or any other ancillary
purpose. Such action shall 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
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34
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 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.
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35
(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 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. …………………..
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
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36
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
Government/ Forest land. Departmental
proceedings, in such a case, shall be initiated for
removal/dismissal from service.
42. It is apt to record here that Direction Nos. 35(xvii) to
35(xix) referred to herein supra, passed in CWPIL No.17 of 2014
and CWPIL No.9 of 2015, the State had expressed an inability to
comply with the same, i.e. fencing, maintenance, management of
the orchard raised on encroached Government land, and the
State was also facing difficulty to take care of the orchard,
because there was paucity of funds, resources and staff with the
Department and the ousted encroachers were re-occupying the
same. As Section 2 of the Forest (Conservation) Act, 1980
creates an impediment for putting forest land for “non-forest
purpose”, explanation whereof categorically provides that planting
of horticulture crop on forest land is a “non-forest purpose” and
Apple crop, admittedly, is a horticulture crop, it was submitted that
apple orchards were required to be replaced with forest species.
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37
43. In aforesaid backdrop, request made by the State
was acceded on 2.7.2025 and 14.7.2025, and on 14.7.2025
following order was passed by making reference to previous order
.
dated 2.7.2025:
“14.07.2025
…. … …
“S/Sh. Dinesh, Sanjay, Sandeep, Manda Gopal,
Vikrant and Rajkumar, S/Smt. Kamla Devi, Leela,
Sheela, Rita and Meera, are present in person.
Mr. Arsh Chauhan, Advocate, appearing under
instructions Mr. Ravi Tanta, Advocate furthersubmits that one Ms. Daya is also not present today.
However, all other persons to whom bailable
warrants were issued, except Sh. Sohan Lal and Sh.
Mast Ram, are present in person.
According, to the learned counsel there was no
arrangement for looking after the work at home and
arrangement could not be made because of paucity
of time, therefore, Ms. Daya could not come and
therefore, he has prayed for exempting presence ofMs. Daya also. Prayer is accepted for today with
direction to remain present in person on next date.
Learned Advocate General has placed on recordinstructions received from Additional Chief Secretary
(Forest) dated 11.07.2025 and Director General ofPolice dated 02.07.2025, as well as communications
sent from DFO, Theog to CCFT, Shimla. The same
are taken on record.
At this stage, learned Advocate General also
submits that removal of apple trees is being
undertaken only in those cases/areas where
encroachers were re-asserting unauthorized
possession upon the orchards raised on the forest
land because, according to him, on 02.07.2025, the
order for removal of apple plants was passed in
addition to the earlier instructions/directions passed
in order dated 08.01.2025, but only with respect to::: Downloaded on – 05/08/2025 21:24:51 :::CIS
38those cases where there was attempt to reoccupy
the unauthorized possession. Though he has also
reiterated that micro-management of the orchards
throughout the State, wherefrom encroachers have
been removed, is not possible for the Forest
Department or the Government of Himachal.
Pradesh.
Plea with regard to understanding of order is
misconceived, as direction of removal of appleplants was with respect all orchards raised on
Govt./Forest land, as evident from following paras of
order dated 02.07.2025:-
“Learned Advocate General, has placed on record
instructions dated 02.07.2025, including Annexure
R-2, communication dated 31.01.2025, copy of GD
entry No.31 recorded in Police Station, Kotkhai, on
01.07.2025 and Joint Committee Report dated01.07.2025. Based on the aforesaid, the Advocate
General has submitted that persons/encroachers
mentioned in communication dated 31.01.2025 are
obstructing the Officers and Officials of the
Government of Himachal Pradesh, who are going onthe spot to implement the judgment/directions
passed by this Court qua removal of
encroachments. He has further submitted that the
Government of Himachal Pradesh, especially theForest Department is finding it difficult to manage
the apple orchards planted on the encroached landsand the persons/encroachers referred in the
aforesaid documents are persistently and
continuously trying to reoccupy lands where fromthey have already been evicted or dispossessed on
account of illegal encroachments. He has further
submitted that even otherwise apple trees are not
the forest species and, therefore, Forest Department
intends to replace the apple trees with the forest
species on the encroached land.
From the material placed on record, including the
photographs, it is apparent that encroachers are
time and again re-encroaching the areas from where
they have already been evicted/ dispossessed. The::: Downloaded on – 05/08/2025 21:24:51 :::CIS
39same is evident from the photographs placed on
record wherefrom it is clear that the evicted
encroachers are making attempts to protect the
standing apple crop on the encroached lands
wherefrom they have been evicted by placing hail
protection nets.
.
Moreover, micro management of the Orchard has
become difficult for the State Government as the
encroachers are time and again trying to re-occupythe areas from where they have already been
evicted/dispossessed. Mr. J.L. Bhardwaj, learned
Amicus Curiae as well as Mr. Anup Rattan, learned
Advocate General submit that in the given facts and
circumstances of the case, an appropriate orderneeds to be passed.
Considering the aforesaid submissions, the Forest
Department is directed to remove the appletrees/orchards from the forest lands, which were
previously encroached and wherefrom encroachershave been removed in the entire State of Himachal
Pradesh. Further, where ever possible post felling of
the apple trees/removal of the stumps, planting of
forest species in such areas either through theForest Department or by taking help of the Non
Government Organizations or other private persons
working in the field of plantation/forestation beundertaken. The needful be done at a war footing.
The on-going monsoon is a conducive period toplant forest species. Cost of removal, i.e., cutting,
removal of stumps and plantation of forest species
be recovered from the encroachers. The same berecovered as arrears of land revenue.”
44. Even otherwise, it is admitted position that apples are
non-forest species.
It is also admitted fact that the orchards and food
bearing trees requires spray of insecticides,
pesticides and fungicides and this exercise would
not be possible to be undertaken by any Department
of the State and in case such orchards are permitted
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40
to exist, then they will cause huge loss to the
neighboring contiguous orchards planted on legally
owned and possessed land by the orchardists and,
therefore, though order dated 02.07.2025, is
unambiguous, however, we are clarifying again that
order for removal of apple trees from the forest land
.
is not limited to the orchards, where attempts are
being made to reoccupy Government land, which
had earlier been got vacated from the encroachers
as the State is expected to deal with all cases in
equal terms, by removing the apple trees from the
every encroached forest land, wherever it has been
raised on Govt./Forest Land in the State of Himachal
Pradesh, because any conduct contrary to the
aforesaid, shall be in violation of mandate of Article
14 of the Constitution of India.
Fresh instructions by the State, response to the
notices by the persons to whom notices were
issued, or any other material intended to be filed, be
filed by tomorrow i.e. 15.07.2025. By taking all
steps, it be ensured that the same be placed on
record before the next date of hearing.
………………”
45. However, on approaching the Apex Court by one
Tikender Singh Panwar by filing SLP Diary No.40056 of 2025,
wherein State is also a party and duly represented, against order
dated 2.7.2025 passed in CWPIL No.9 of 2015, the Apex Court
has ordered, in interim, that until further orders, the direction(s)
issued by the High Court regarding the felling of trees shall
remain stayed and that the State shall be at liberty to conduct the
auction of fruits from the harvest.
46. Considering the material placed before us,
pronouncements of Courts including the Apex Court and
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41
submissions made by learned counsel for parties, we find merit in
present petition and the same is allowed and disposed of with
following directions:-
.
(1) Section 163-A of H.P. Land Revenue Act is
manifestly arbitrary and unconstitutional and
as a consequence thereof, Section 163-A ofH.P. Land Revenue Act and Rules framed
thereunder (Section 163-A) of the said Act are
quashed;
(2) Taking into account the magnitude of
encroachments made on Government land in
the State of Himachal Pradesh, the State
r Government should consider amendment inthe law pertaining to “criminal trespass” by
bringing it in consonance with the State
amendments as have been made in the Stateof Uttar Pradesh, Karnataka and Orissa;
(3) The respondents are directed to ensure
removal of encroachment on the Government
land, in accordance with law, by initiatingsuitable proceedings against encroachers and
taking such proceedings to its logical end asexpeditiously as possible preferably on or
before 28th February, 2026.
(4) Any stay/protection granted against removal of
encroachment for pendency of this petition or
any other ground including the ground with
reference to Rule/Draft Rules notified by the
Government or regularization of encroachment
including Draft Rules notified in the year 2017::: Downloaded on – 05/08/2025 21:24:51 :::CIS
42shall stand vacated and any such order is
declared ineffective and unenforceable against
the proceedings pending or to be withheld for
removal of encroachment from the.
Government land.
(5) Directions issued in CWPIL Nos. 9 of 2015
and 17 of 2014 in para 35 of judgment dated
8.1.2015 are extended for removal of
encroachment from all type of Government
land/premises including the proceedings
initiated or to be initiated under H.P. Public
Premises Act and/or Section 163 of H.P. Land
r Revenue Act as well.
(6) The respondent/State is also directed to make
suitable changes in law by amending relevant
Act and Rules appropriately to assign duty on
the office bearers of concerned Nagar
Panchayat, Nagar Parishad and Nagar Nigam
as well as Executive
Officer(s)/Commissioner(s) to report the
encroachment, to take action for removal of
encroachment and regarding consequences of
violation of such duty.
(7) Other than the aforesaid, insofar as removal of
encroachments from Government land is
concerned, the same has been dealt with
under Section 163 of the H.P. Land Revenue
Act. The said provision provides for the
encroacher to claim title thereupon in terms of
the law of adverse possession. In light of the
law laid down by the Apex court in State of
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43
Haryana vs. Mukesh Kumar, (2011)10 SCC
404 and Ravinder Kaur Grewal vs. Manjit
Kaur (2019)8 SCC 729, the State Government
should consider removal of the provision from
.
Section 163 of the H.P. Land Revenue Act,
whereby an encroacher can claim title
thereupon in terms of the law of adverse
possession.
(8) In cases, where land has been acquired for
public purpose including Roads/Path vesting
its possession to the Court/Public Authority
and previous owner has either not vacated
the land or property to the
Government/Public Authority or re occupied
such acquired land by raising construction or
otherwise, during eviction from such
possession/encroachment, plea of adverse
possession shall not be available, instead such
possessor/encroacher apart from cost of
removal, shall also be liable to pay use and
occupation charges as well as receiving of
benefits deserved from such land/property.
47. Learned Advocate General is directed to transmit the
copy of this judgment to the Chief Secretary to the Government of
Himachal Pradesh and all concerned for immediate compliance,
with directions to take appropriate action against the Revenue
Authorities as per law in whose jurisdiction land has been
permitted to be encroached upon.
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44
Petition is disposed of in the aforesaid terms, so also
the pending miscellaneous applications, if any.
.
(Vivek Singh Thakur)
Judge
(Bipin Chander Negi)
Judge
August 05, 2025
Tarun
r to
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