Himachal Pradesh High Court
Gian Chand vs State Of H.P. & Others on 6 July, 2023
Bench: M.S. Ramachandra Rao, Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPIL No.59 of 2022 Reserved on: 26.06.2023 .
Pronounced on: 06.07.2023
Gian Chand ......Petitioner
Versus
State of H.P. & Others ...Respondents
______________________________________________________ Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?
For the petitioner : Mr. Deepak Kaushal, Senior Advocate with Mr. Mohar Singh, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocate Generals and Mr. Gautam Sood & Mr. Sidharth Jalta Deputy Advocate Generals, for respondents No.1 to 7/State.
Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate, for respondents No.8 & 9.
____________________________________________________ M.S. Ramachandra Rao, Chief Justice.
In this Public Interest Litigation, the petitioner seeks the following relief:-::: Downloaded on - 07/07/2023 20:38:18 :::CIS 2
"A) That an appropriate writ be issued against the State directing them to restrain the private respondent to carry out any kind of further illegal and un-authorised construction over the Government land/village path comprising in Khasra No.587/198 and 199 .
Mauza and Mohal Shilli, District Solan, H.P. B) That the respondent State may kindly be directed to remove the illegal construction activities carried out by the private respondents over the Government land/village path comprising in Khasra No.587/198 and 199 Mauza and Mohal Shilli, District Solan, H.P., and further by directing to restore the original path at the cost of the private respondents.
C) That stringent action may kindly be taken against the private as well as the Government officials for encroaching upon the Government land/path comprising in Khasra No.587/198 and 199 Mauza and Mohal Shilli, District Solan, H.P. D) That the respondent Police authorities may kindly be directed to lodge an FIR against the private respondent under the relevant provisions of Indian Penal Code as well as public property damages Act.
E) That the private respondents be directed to deposit the compensation before this Hon'ble Court for damaging the public path in question, as may be assessed by this Hon'ble Court.
F) That exemplary cost may kindly be imposed upon the respondents, so that none of the respondents again dare to violate the mandatory provision of environmental as well as forest laws. G) Any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner and against the respondents."
2) It is the contention of the petitioner that the Writ petition is filed on behalf of residents of Village Shilli and adjoining villages which are ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 3 connected with the road, over which, the private respondents allegedly raised the illegal construction after encroaching public path and damaging public property; and that the illegal un-authorized structure is .
located in Khasra nos.199 and 587/198, Mauza Mohal Shilli, District Solan, Himachal Pradesh, which is a Government land.
3) Petitioner contends that all the villagers had passed a resolution on 24.07.2022, authorizing the petitioner to file the instant writ petition and the copy thereof is enclosed as Annexure P-1.
4) It is alleged that the private respondents no.8 & 9 are carrying out illegal and unauthorized construction activities on the public path, which is a Government land, and are damaging the same though tiles were fixed by the fund of the Gram Panchayat. Photographs showing uprooted tiles by these respondents on the public path on 05.07.2022, are filed as Annexure P-2.
5) It is alleged that the Up-Pradhan of Seri Panchayat, vide letter dt.
11.07.2022, had requested the Superintendent of Police, Solan to lodge an F.I.R. against private respondents, mentioning that a spot inspection was done by the Panchayat team and it was discovered that the path built by the Panchayat using public money had been demolished and encroached for building a shed/garage by the private respondents.
According to the petitioner, the said F.I.R. was not lodged by the police, ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 4 but he was instructed by one Sher Singh to settle the matter at the Panchayat level.
6) It is contended that the villagers addressed another letter on 19.07.2022 .
to the Superintendent of Police, Solan and Sub Divisional Magistrate, Solan and requested them to remove encroachment and un-authorized construction over the Government land comprised in Khasra no.199, but no action was taken by them thereon. It is stated that even an ambulance cannot pass on the road which was encroached by the respondents no.8 & 9. It is also contended that the path in question comprised in Khasra Nos.587/198 and 199, also lead to the pump house of the I & PH Department, which fulfills the demands of water of the entire Solan city, but on account of encroachment made by respondents no.8 & 9, the road leading to the pump house has been blocked; and in future if the water lifting pumps or their motors gets damaged, it would not be possible for the said department to get the same repaired because no vehicle can reach the pump house to lift the motor or to install any new motor in the pump house. It is alleged that in spite of this difficulty, officials of I & PH Department did not take action against the private respondents.
Events after filing of the Writ Petition
7) Notice in the Writ petition had been issued on 4th August, 2022 and respondent no.3, Deputy Commissioner, Solan, was directed to ensure ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 5 that the concerned officer visits the site within six days from that day and makes a report to this Court. It was stated that if it was found on such visit that the construction is unauthorized, appropriate steps in .
accordance with law should be taken forthwith.
8) Matter was next listed on 14.11.2022, when respondents no.8 & 9 entered appearance, but no reply was filed by respondent no.3, Deputy Commissioner, Solan. So this Court directed him to disclose what action has been taken to ensure that the encroached land is vacated by respondents no.8 & 9 and the encroached portion is demolished. It was further stated that the affidavit of respondent no.3 should disclose whether land of respondents no.8 & 9 is adjoining to the land which is the subject matter of the present petition.
9) It appears that the Deputy Commissioner, Solan, had asked the Tehsildar, Solan, through a letter dt. 06.08.2022 to visit the site and submit report to her and in compliance thereto, the Tehsildar, Solan visited the spot on 08.08.2022 alongwith Village Revenue Officer Jaunaji. The officials of Jal Shakti Vibhag and adjoining owners were also present on the spot.
10) The Tehsildar gave a report that the land of the Jal Shakti Vibhag covered by Khasra no.199, was partially encroached by respondents no.8 & 9. According to the report of Tehsildar, Solan, the subject land had ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 6 been acquired by the State vide Award no.18/98/94 dt. 02.02.1994, and was undoubtedly not the land of respondents no.8 & 9, but belongs to the State of H.P. .
11) On 28.11.2022, this Court noted that the Deputy Advocate General had placed on record instructions dt. 26.11.2022, which stated that the Field Kanungo, Solan Circle, had fixed fresh demarcation on 05.12.2022 and notices had been accordingly issued to respondents no.8 & 9. The Court directed that demarcation shall be carried out in respect of the entire Khasra no.199, including the acquired and un-acquired portions, if any.
12) After this order, a fresh demarcation report dt. 16.12.2022 was filed by the 3rd respondent.
The stand of respondent No.3
13) Thereafter, the respondent no.3 filed a reply stating inter alia as under:
"5. That as per the demarcation report dated 16.12.2022 (Annexure R/3-1), the Assistant Collector Ist Grade, Solan visited the spot for demarcation of Khasra No.199 area measuring 01-15 bigha at Mauza Shilli and the demarcation was carried out in the presence of Sh. Ajay Pal Junior Engineer Jal Shakti Vibhag, Sunder Singh S/o Shobha Ram, Satinder Singh S/o Sh. Gobind Ram, Gian Chand S/o Sh. Shiv Prakash, Rajesh Kumar S/o Gita Ram, Sh. Pradeep Kumar S/o Sh. Shobha Ram, Hatinder Thakur S/o Sh. Shobha Ram, Sh. Mandeep Singh S/o Sh. Rajender Singh, Sh. Rajender S/o Sh. Krishan Singh and Sh. Shobha Ram S/o Sh. Chet Ram. It is submitted that after the completion of the demarcation it has been found that:
i) The Jal Shakti Vibhag produced Award No.18/98/94 dated 02.02.1994 on the spot, which has not been incorporated in the revenue records. As per Award, ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 7 Khasra No.199/2 measuring 01-08 Bigha has been accepted for Jal Shakti Vibhag and the Khasra No.199/1 is lying with the land owner.
ii) Sh. Shobha Ram S/o Sh. Chet Ram has encroached upon the land of Jal Shakti Vibhag which has been assigned as Khasra No.199/2 area measuring 11 .
Biswansi by making pakka tin sheet shed and which lies on the award side portion of Khasra No.199.
iii) Ms. Sheela D/o Sh. Gobind Ram has built Pucca house on Khasra No.199/1 area measuring 0-3 biswa which lies on the portion of Khasra No.199 that is not the part of award."
(emphasis supplied)
14) Thereafter, the matter came to be listed on 15.05.2023.
The stand of respondent Nos. 8 and 915) In the meantime, respondents no.8 & 9 had filed a reply on 17.11.2022, denying the encroachment on the Government land in Khasra no.199, while admitting that Khasra no.199 is Government land.
16) They denied that there was any un-authorized construction on any public path.
17) They even denied that there is any Gair Mumkin Sadak in the land comprised in Khasra no.199, as alleged. They did not dispute that Khasra no.587/198 is Government land and that it is shown as Gair Mumkin Sadak.
18) It is contended that the Up-Pradhan of the concerned Gram Panchayat, had filed a false and frivolous complaint against them and prevailed ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 8 upon the Gram Panchayat to submit a distorted report and the alleged F.I.R. was nothing but bundle of lies.
19) According to respondents no.8 & 9, the Up-Pradhan of the Gram .
Panchayat wanted to shield one Rajinder Singh s/o Krishan Lal and other encroachers, who had encroached upon the land of the I & PH Department on the spot.
20) According to respondents no.8 & 9, respondent no.8 had purchased one biswa land in Khasra no.142 under a sale-deed dt. 29.11.1984, alongwith five biswas of Abadi Deh land, adjacent to the same land. Adjoining to the Khasra no.142, Khasra no.199 is situated and it is contended that demarcation is not done on the spot by the Tehsildar, Solan, in accordance with law, and they had not been associated with such demarcation at any point of time.
21) They also alleged that they are owners of Khasra no.529/238/1, measuring 01-09 bighas and also other adjoining land in the same village.
22) It is reiterated that it was Rajinder Singh, who made encroachment upon Khasra no.199, alongwith other adjoining owners.
23) They also state that the I & PH Department had already fenced their land by laying barbed wire and the constructions of the shed of the replying respondents, is more than six feet beyond the same. It is also stated that ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 9 the I & PH Department had laid down pipes of 8 inches diameter in Khasra nos.142 and 529/238/1 without the consent of respondents no.8 & 9 and they ought to remove it.
.
Further events during the pendency of the Writ Petition
24) The matter was then listed on 11.04.2023 and it was stated by counsel for respondents no.8 & 9 that ejectment proceedings had already been initiated against them under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971.
25) The Bench noted that the thing to be considered was whether there was available space at the spot for an ambulance to operate and directed the Secretary, District Legal Services Authority, Solan, to call the parties at the spot and report as to whether there is sufficient space available for an ambulance to operate, and in case there is no such space, then to suggest certain solutions.
26) Matter was then listed on 15.05.2023, on which date, the Secretary, District Legal Services Authority, Solan, was directed to produce her report.
Order dt.22.5.2023 of this Court
27) Thereafter, this Court observed on 22.05.2023 that the demarcations though carried out, it was not satisfied with the same and set-aside all previous demarcations carried out by the revenue authorities. It then directed the District Revenue Officer, Solan, to personally carry out ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 10 demarcation with the field staff with respect to the entire Khasra no.199, measuring 01-15 bighas, identify the portion which was acquired by the Government for setting up a Pump House, i.e. the area measuring 1 .
bigha and 8 biswas and further report whether any encroachment has been made over this portion of the land and by whom. Such report was directed to be submitted within four weeks.
28) Subsequent thereto, the District Revenue Officer,Solan submitted her report after making a site inspection on 01.06.2023. The said report stated as under:- r "The field staff carried revenue record and measuring instruments with them. All Sh. Mukesh Kumar, Junior Engineer Jal Shakti Vibhag, Sh. Gian Chand S/o Sh. Shiv Prakash, Sh. Rajinder Singh S/o Krishan Lal, Sh. Mandeep S/o Sh. Rajinder Singh, Sh. Varun Thakur S/o Sh. Sunder Singh, Sh. Sunder Singh S/o Sh. Shobha Ram, Sh. Pradeep S/o Sh. Shobha Ram, Sh. Rajesh S/o Sh. Geeta Ram, Sh. Jagdeesh S/o Sh. Parmanand, Sh.
Mohan Singh S/o Sh. Kishan Lal were present on the spot. The work of demarcation was done through Zarib and Cross under my supervision in the presence of all the persons present.
Before starting the demarcation work, the accuracy of the Zarib was tested through measurement tape which was found of the correct length.
For the purpose of demarcation, two pucca points were traced in Kh. No.202 i.e. Point A and Point B. The point 'A' is on the east side of Kh. No.202 (at 2+2 karam) which is also the meeting point of Kh. No.204, 197 & 202 at the spot which are in existence since last settlement. All the present persons also admit it to be correct. Its confirmation was done by taking demarcation of Kh. No.202 from east north corner measuring ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 11 22+26+5+17 Karam upto Point B on the North side of Kh. No.202 which is also the south side of Kh. No.206 & 204. The site was found correct. Distance AB on the ground was measured through Zareb which comes out to be 70 Karam. The result was compared with distance in Musabi with the .
help of scale. Both ground & Musavi matched each other. Hence by considering the North side of Kh. No.202 as mustkil Mauka. Point A on 2+2 karam east side of Kh. No.202 and point B on North West corner of Kh. No.202 were taken as standard points.
Third pucca point was traced in Kh. No.145 at 12+8 Karam North East corner and which is also the meeting point of Kh. No.143, 145 & 168/2. Its confirmation was done by taking the demarcation of north side of Kh. No.145 (12+20+14 Karam) which is also the east side of Kh. No.143. The distance from A to C & B to C were measured on the ground through Zarib which comes out to be 55 & 75 Karams respectively. The result was compared with the distance on the Musabi, which comes out to be true.
Hence by considering A, B, C points at Mustkil Mauka, tri junction pillar was found available at the site for the purpose of demarcation.
Measuring 26 karam on line BC point D was established which is NW corner of Kh. No.199 from 55 Karam on line BC, 4 Karam perpendicular on the left side was drawn on ground with the help of cross & on the Musavi with the help of scale & point E was established which is SW Corner of Kh. No.199. In this way all the points of Kh. No.199 were established on the spot & after matching the same with the dimensions of Kh. No.199 in Musavi the demarcation process was completed. After matching the dimensions of Kh. No.199 on ground with Musavi, 11 Square Karam area was found to be encroached upon by Sobha Ram S/o Chet Ram.
The tatima of encroached area is craved out as Kh. No.199/2/1 Which is part of sabik Kh. No.199/2 measuring 1 Bigha 8 Biswa which has ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 12 been acquired by the Government for settling up of Pump House. But, the entry of Tatima 199/2 is not incorporated in the revenue record till date.
All the persons present admit the demarcation to be correct, except encroacher Sobha Ram S/o Chet Ram, his sons Pardeep and Sunder Singh .
and his grand son Varun S/o Sunder Singh. The statement of all the persons present were recorded on the spot.
The demarcation is done on the spot in my supervision by metes and bounds in accordance with the instructions issued under section 107 of H.P. Land Revenue Act, 1954. Hence the report is submitted for kind perusal and information please."
( emphasis supplied)
29) The above report was submitted after verification of revenue record and after properly demarcating the land and it was determined on the ground that 11 square karam area was encroached upon by respondent no.8.
The report also revealed that the encroached area falls in Khasra no.199/2/1, which is part of Khasra no.199/2, measuring 1 Bigha 8 Biswas, which had been acquired by the Government for setting up a Pump House; that the entry of Tatima 199/2 is not incorporated in the revenue record till date; and all persons present admit the demarcation to be correct, except respondents no.8 & 9 and their family members.
30) On 26.06.2023, when the respondents no.8 & 9 were confronted with this report, they insisted that the report cannot be accepted and denied any encroachment as was found in the said report submitted by the District Revenue Officer-cum-Local Commissioner, Solan.
::: Downloaded on - 07/07/2023 20:38:18 :::CIS 1331) However, we cannot countenance these contentions on behalf of respondents no.8 & 9. Even after a demarcation in their presence in accordance with proper procedure has been carried out, they cannot .
dispute it merely because it is not favorable to them. Once they are found to be encroachers of the above extent of land vested in the Government, they cannot be allowed to squat over the same and are liable to be evicted therefrom.
32) Accordingly, this PIL is allowed; respondents no.8 & 9 are granted four weeks to remove the encroachment found in Khasra no.199, measuring 11 Square karam, as determined by the District Revenue Officer, Solan and as mentioned in the sketch annexed to the report; if not, respondents no.1 to 6 with the assistance of respondent no.7, shall remove the said encroachment and take other action, in accordance with law, against respondents no.8 & 9, including action under the provisions of IPC/Cr.P.C. Respondents no.8 & 9 shall also pay cost of Rs.20,000/- to the petitioner.
33) Appropriate entries in revenue records be made by the Revenue authorities of the State of Himachal Pradesh as per the above report of the District Revenue Officer, Solan.
34) It is open to the official respondents to take further action in accordance with law if the respondents 8 and 9 are found to have encroached any ::: Downloaded on - 07/07/2023 20:38:18 :::CIS 14 village road existing in Khasra No.199 and Khasra No.587/198 of the above village.
35) Pending miscellaneous application(s), if any, shall also stand disposed .
of.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
July 06, 2023 Judge
(Yashwant)
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