Himachal Pradesh High Court
Pancham Chand vs The State Of H.P And Another on 8 August, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 663 of 2016 .
Judgment reserved on: 25.7.2016 Date of Decision: 8.8.2016.
Pancham Chand. ...Petitioner
Versus
The State of H.P and another. ...Respondents
______________________________________________________________ of Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting?1 Yes.
For the Petitioner: Mr.Naveen K. Bhardwaj, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General with Mr.Anup Rattan & Mr.Romesh Verma, Additional Advocate Generals and Mr.J.K. Verma, Deputy Advocate General, for the respondents.
Tarlok Singh Chauhan, Judge Petitioner has been found to have encroached upon Government land and has, therefore, been ordered to be evicted therefrom in proceedings initiated against him under the H.P. Public Premises Land (Eviction and Rent Recovery) Act, 1971 (for short the 'Act') and aggrieved thereby has preferred this petition praying therein the following substantive reliefs:-
"(i) That the order passed by the Ld. Collector-cum-ACF, Kullu, H.P. dated 27-02-2015 in case no. 163(K)/2012-13 (Annexure P1) and the order passed by Ld. Divisional Commissioner, Mandi, (Kullu and Lahaul & Spiti) dated 23-12-2015 in case no.
107/2015 (Annexure P3) may kindly be quashed and set aside by Issuing a writ of certiorari."
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 2 CWP No. 663 of 2016
2. The facts as emerge from the material placed on record are that during the course of demarcation, it was detected by the .
Patwari Halka and Kanungo that the petitioner was an unauthorized occupant of Government/forest land in Khasra No. 1244, measuring 0-84-87 hectares and Khasra No. 1245 measuring 0-20-71 hectares, total measuring 1-05-58 hectares in of Raison-III UPF (herein after referred to as the land in dispute), since the said land had been fenced with barbed wire and the rt apple orchard on the same was also raised. Consequent thereupon the case of eviction was prepared by the revenue officials and filed before the Collector, Forest Division, Kullu.
3. The Collector after recording the statements of witnesses and the documents exhibited on record allowed the petition filed by the respondents and ordered the eviction of the petitioner from the land in dispute, constraining the petitioner to file appeal before the appellate authority, who too vide its order dated 23.12.2015 dismissed the appeal. It is against these two orders that the petitioner has filed the instant writ petition on various grounds taken in the memorandum of the petition.
We have heard the learned counsel for the parties and have also gone through the records of the case.
4. At the outset it may be observed that save and except ground regarding the land in dispute being owned by the State Government and not the Forest Department, none of the grounds raised herein was ever raised before the appellate authority and ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 3 CWP No. 663 of 2016 therefore, the petitioner is clearly precluded from raising such pleas for the first time in a petition under Article 226 of the Constitution, if .
not taken before the authorities below, more particularly when the pleas now sought to be raised does not go to the root of the matter.
5. Having said so, the only serving ground is that the petitioner has questioned the jurisdiction of respondent No. 2 to of adjudicate upon the issue on the ground that the land in dispute was owned by the State Government and not by the Forest rt Department, so as to vest and confirm jurisdiction upon respondent No. 2. It is absolutely clear that the petitioner is not the owner of the land and rather has attorned, acknowledged and admitted the ownership of the land in dispute to be that of the State Government. Therefore, in such circumstances, it is preposterous on behalf of the petitioner to contend that the land in dispute belongs to the State Government and not to the forest Department, because all the departments fall within the ambit and purview of the State Government, including the Forest Department.
6. That apart, once the land has been classified as forest land, then obviously it will be the officials of the Forest Department, who would initiate and commence the proceedings under the relevant statute, for which the petitioner can take no exception, save and except if the proceedings are without jurisdiction, which is not the case set up by the petitioner in the instant petition.
7. Even otherwise, it is more than settled that all lands which are not the property of any person or which are not vested in ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 4 CWP No. 663 of 2016 a local authority, belong to the Government. All unoccupied lands are the property of the government, unless any person can .
establish his right or title to any such land. This presumption available to the Government is not available to any person or individual. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit of or any other proceeding against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be rt established to succeed in a declaratory suit or any other proceeding for title against the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by Government as against the period of 12 years for suits by private individuals.
The reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments.
8. The onus to prove title to unoccupied lands, belonging to the Government is on the private parties. Such lands are presumed to be Government land and weakness in Government's defence or absence of contest are not sufficient to grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings, that the averments contained therein have not been denied or traversed are deemed to have been accepted or admitted. Similarly, the rights, entitlement and presumption of title is clearly in favour of the ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 5 CWP No. 663 of 2016 Government and has therefore to be distinguished from those of private parties.
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9. Similar issue came up before the Hon'ble Supreme Court in R. Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others (2010) 5 SCC 203 and it is apt to reproduce the relevant of observations which reads thus:
Nature of proof required in suits for declaration of rt title against the Government "19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title.
Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 6 CWP No. 663 of 2016 private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to .
ensure that public property is not converted into private property by unscrupulous elements.
20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government of properties. Instances of such suits against the government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray rt revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.
21 A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized;
::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 7 CWP No. 663 of 2016permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
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22. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession of for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner rt (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.
23. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may."
10. In view of the aforesaid exposition of law, it was incumbent upon the petitioner to have either proved his lawful entitlement or to have proved the adverse possession and having failed to do so, no fault can be found with the orders passed by the authorities below.
::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 8 CWP No. 663 of 201611. As regards, the grievance of the petitioner regarding demarcation, suffice it to say that if, at all, the petitioner was .
serious about the same not being conducted in accordance with law, then nothing prevented him from filing an application before the Collector or the appellate authority or even before this Court for getting the land demarcated in accordance with law. Having failed of to do so, the petitioner cannot now turn around and question the same. rt
12. The Court is dealing with public property and wherein the public has interest and it is more than settled that private interest must yield to public interest.
13. It has to be remembered that the right and title of the State cannot be permitted to be destroyed so as to give an upper hand to the encroachers, unauthorized occupants or land grabbers as held by the Hon'ble Supreme Court in Mandal Revenue Officer vs. Goundla Venkaiah and another (2010)2 SCC 461 wherein it was held as under:-
"47. In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 9 CWP No. 663 of 2016 the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper .
hand to the encroachers, unauthorised occupants or land grabbers.
48. In State of Rajasthan v. Harphool Singh (Dead) through Lrs. 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over of the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the rt finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff-respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below: (SCC p.660, para
12) "12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v.
L. Lakshmi Reddy adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus."
::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 10 CWP No. 663 of 201649. A somewhat similar view was expressed in A.A. Gopalakrishnan v. Cochin Devaswom Board 2007 (7) SCC 482. While adverting to the need for protecting the properties of .
deities, temples and Devaswom Boards, the Court observed as under: (SCC p.486, para 10) "10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees /archakas /shebaits /employees. Instances are of many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and rt Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
14. As observed earlier, the petitioners are rank-
encroachers and after making large scale encroachments have turned the litigation into fruitful industry, by succeeding in protecting their illegal possession and reaping the usufruct out of the land, which as per their own admission comprises of apple orchard. This illegal possession cannot be permitted to continue. Therefore, it is the duty of the court to see that such wrongdoers are discouraged at every stage and even if they have succeeded in prolonging the litigation, then they must suffer the costs of all these years and also bear the expenses of such unwanted and otherwise avoidable litigation.
::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 11 CWP No. 663 of 201615. The very object and purpose of encroaching upon the forest land is only to make a quick buck by illegal means.
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Therefore, there is no reason why the encroachers who have cut down the forests to pave way for apple orchards should not be made to cough up the extra buck which they have earned over a long period of time.
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16. People have long referred to the trees as 'Earth's lungs' as they play a crucial role in our existence, consuming large rt 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 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.
17. 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.
::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 12 CWP No. 663 of 201618. 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 of 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."
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19. In view of the above declaration, the State is under obligation to safeguard and compensate not only the victims of pollution 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.
20. 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.
21. 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 to compensate for the same.
::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 13 CWP No. 663 of 201622. It is more than settled that the forest land cannot be put to use 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.
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23. The activities of the occupiers/encroachers in the forest land for the last so many years have had its antagonistic rt effectiveness in the environmental premise. Therefore, all those responsible for environmental degradation cannot be exculpated.
24. It is therefore the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive.
25. In Indian Council for Enviro- Legal-Action vs. Union of India and others (2011) 8 SCC 161, it is noticed that conduct of the parties is to be taken into consideration and it was held as follows:-
"197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view:
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 14 CWP No. 663 of 2016
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the .
credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
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7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
rt8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
26. It is not only high time, but it is necessary to arrest and curb immediately such unlawful activity of encroachment over the government lands as the public order is adversely affected by such unlawful activity. It is probably on account of the higher returns from agricultural and horticultural pursuits from the encroached lands that unscrupulous persons have occupied without any semblance of right, vast extents of land belonging to the Government. Therefore, unless all such cases of illegal encroachments are dealt sternly and swiftly, the evil cannot subside and social injustice will continue to be perpetrated with impunity.
27. It is evidently clear from the aforesaid discussion that this petition not only sans merit, but the intent behind filing this petition is not also bonafide as the only endeavour of the petitioner appear to prolong the litigation so as to enable him to reap the benefits from the large track of government land illegally ::: Downloaded on - 15/04/2017 20:59:09 :::HCHP 15 CWP No. 663 of 2016 encroached by him and thereby convert this litigation into a fruitful industry.
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28. Accordingly, this petition is dismissed. The pending applications, if any, are also disposed of.
29. However, before parting, it needs to be clarified that the of eviction to be carried out by the respondents shall be at the cost of the petitioner and this decision shall also not come in the way of rt the respondents in claiming any other relief against the petitioner including mesne profits etc. before the competent authority or Court of law.
(Mansoor Ahmad Mir) Chief Justice.
(Tarlok Singh Chauhan),
8th August, 2016 Judge.
(KRS)
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