Himachal Pradesh High Court
Hardyal Singh vs State Of Himachal Pradesh And Others on 8 August, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.282 of 2016.
Judgment reserved on: 25.07.2016.
Date of decision: August 8 , 2016.
of
Hardyal Singh .....Petitioner.
Versus
State of Himachal Pradesh and others
rt .....Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1Yes For the Petitioner : Mr. Vinod K.Sharma, 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.
Tarlok Singh Chauhan, Judge.
Aggrieved by the orders passed by the authorities constituted under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short 'Act'), whereby the petitioner has been ordered to be evicted, the petitioner has approached this Court by filing the writ petition praying therein the following substantive relief:-
"(1) That the Petitioner in the facts and circumstances prays that the annexure P/1 and P/2 may kindly be set aside and Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 2
quashed and in the alternative Petition may kindly be remanded back to ACF Rampur for adducing evidence by .
the petitioner which opportunity was denied to the petitioner."
2. The facts necessitating the filing of this petition are that eviction proceedings were initiated against the petitioner by of respondent No.3 qua illegal encroaching of forest land DPF Punan Khasra No.61, 65/1, 80/1, 80/2 measuring 2-08-87 hectares rt whereupon the petitioner was alleged to have raised an apple orchard.
3. On 26.05.2012, Naib Tehsildar, Nankhari, demarcated the land, thereafter encroachment challan was prepared and submitted by the Range Officer, Nankhari Range before respondent No.3 on 15.02.2013 and the case was accordingly instituted on 18.02.2013. Respondent No.3 issued notice to the petitioner, who appeared on 13.03.2013 and filed reply to the said notice. However, when the case came up to be listed on 18.07.2013, the petitioner voluntarily gave a statement to the effect that he was ready to vacate the land. Respondent No.3 on the basis of the undertaking given by the petitioner as also keeping in view the statements of the witnesses of the department examined during the course of the proceedings ordered eviction of the petitioner. However, the order passed by respondent No.3 came to be assailed in appeal before respondent No.2, who vide his order dated 02.11.2015 dismissed the appeal constraining the petitioner to file the instant petition on the various grounds taken in the petition.
::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 34. The respondents have filed the reply wherein it has been submitted that though nothing survived for adjudication in view .
of the undertaking given by the petitioner, yet both the authorities took pain to decide the case on merits being totally uninfluenced by the undertaking given by the petitioner.
of We have heard the learned counsel for the parties and gone through the records of the case.
5. rt It would be noticed that not only respondent No.3, but even respondent No.2 had categorically held the petitioner to be bound by his undertaking as given on 18.07.2013 whereby he agreed to vacate the land in question. But strangely enough the petitioner took no steps for recalling such undertaking and only contention now put forth by him is that the Collector, Forest, in a dramatic way had obtained his signatures on blank papers while he was mentally disturbed and undergoing treatment at IGMC, Shimla.
6. The defence put forth by the petitioner is clearly an after-
thought because as observed earlier the petitioner over these years has not taken any steps for questioning the undertaking and is, therefore, bound by the same. There is no gainsaying that in case the petitioner had infact not given the undertaking as reflected in the order, then the only course open to him was to have called the attention of that very authority, who had made the record and have the same corrected. If no such steps were taken, the matter must necessarily end there. It is not open to a party to contend before the higher authority/Court to the contrary. This Court cannot launch ::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 4 into an inquiry as to what transpired before the authority. It is simply not done. Public policy and judicial decorum do not permit it.
.
These matters are unquestionable.
7. In taking such view, we are fortified by the observations made by the Hon'ble Supreme Court in Central Bank of India vs. of Vrajlal Kapurchand Gandhi and another (2003) 6 SCC 573 wherein it was held as under:-
rt "12.The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra v.Ramdas Shrinivas Nayak (1982) 2 SCC 463. In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 and Roop Kumar v. Mohan Thedani (2003) 3 Scale 611 the view in the said case was reiterated. Statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moved it contending that the order has not correctly reflected happenings in court."::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 5
8. The petitioner would, however, contend that he was not afforded any opportunity to defend his case. To say the least, this .
claim to his knowledge is false. It is clearly evident from the records that respondent No.3 had conducted the proceedings on 13.03.2013, 09.04.2013, 05.06.2013, 03.07.2013, 18.07.2013 and it of was the petitioner himself who on 18.07.2013 undertook to vacate the premises and, therefore, cannot be heard to complain that no rt opportunity had been afforded to defend the case.
9. Learned counsel for the petitioner would then argue that the petitioner had become owner by way of adverse possession of the disputed land and structure standing thereupon as the same had been in his possession for the last 45 years and even electricity meter and telephone connection had been installed.
10. This plea is equally without force as admittedly the petitioner after filing his reply to the show cause did not choose to contest the proceedings before the third respondent and rather gave an undertaking to vacate the premises of his own volition.
Therefore, in such circumstances, the plea of adverse possession is clearly an after-thought and is otherwise not tenable or even available to the petitioner.
11. As regards the installation of electricity and telephone connections, the same is of no avail as the installation of these connections in no manner can legalize the encroachment made by the petitioner.
::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 612. The petitioner has been in an unauthorized occupation of huge property measuring 2-08-87 hectares and claims to have .
raised an apple orchard over the same. Meaning thereby, he has been generating income from the land without paying a penny to its actual owner and has thereby turned the litigation into a fruitful of industry.
13. The Court is dealing with public property, wherein the rt public has interest and it is more than settled that private interest must yield to public interest.
14. 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, the relevant observations wherein read 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, 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 ::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 7 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 the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his of threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were rt 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."
49. 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, ::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 8 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 many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and of 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 rtthe 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."
15. The petitioner is a rank-encroacher and after making large scale encroachments has protracted the litigation and thereby turned the same into a fruitful industry, by succeeding in protecting his illegal possession and reaping the usufruct out of the land, which as per his own admission comprises of apple orchard. This illegal possession cannot be permitted to continue. 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.
16. The very object and purpose of encroaching upon the forest land is only to make a quick buck by illegal means. Therefore, there is no reason why the encroachers who have cut down the ::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 9 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.
17. People have long referred to the trees as 'Earth's lungs' as they play a crucial role in our existence, consuming large of quantities of carbon dioxide and producing oxygen which enables us to breathe. Apart from providing oxygen, they also cleanse the rt air and improve its quality, control climate, protect soil and support vast varieties of wildlife. It is universally accepted that deforestation is major contributing factor of climate change and that is why it is so important to protect trees and secure our natural landscapes for future generations.
18. 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.
19. The 1992 Rio Declaration on environment and development has been adopted by India and principle 13 thereof provides:
"The States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also co-operate in an expeditious and more determined manner to develop further international law regarding ::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 10 liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to .
areas beyond their jurisdiction."
20. 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 of environmental damage. The 'Polluters Pays Principle' as interpreted by the Hon'ble Supreme Court means that the absolute liability for rt harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
21. 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.
22. 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.
23. 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.
::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 1124. The activities of the occupiers/encroachers in the forest land for the last so many years has had its antagonistic .
effectiveness in the environmental premise. Therefore, all those responsible for environmental degradation cannot be exculpated.
25. It is therefore the duty of this Court to neutralize any of unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive.
26. rt In Indian Council for Enviro- Legal-Action vs. Union of India and others (2011) 8 SCC 161, the Hon'ble Supreme Court held that conduct of the parties in pursuing the litigation 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.
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.::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 12
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.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
27. It is not only high time, but it is necessary to arrest and of curb immediately such unlawful activity of encroachment over the government lands as the public order is adversely affected by such rt unlawful activity. It is probably on account of the high returns from agricultural and horticultural pursuits carried out over 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.
28. It is evidently clear from the aforesaid discussion that this petition not only sans merit, but the intent behind filing this petition is also not bonafide as the only endeavour of the petitioner appears to prolong the litigation so as to enable him to reap the benefits from the vast extents of government land illegally encroached by him and thereby convert this litigation into a fruitful industry.
29. Accordingly, the petition is dismissed. The pending applications, if any, also stand disposed of.
::: Downloaded on - 15/04/2017 20:59:04 :::HCHP 1330. However, before parting with, it needs to be clarified that the 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 the respondents in claiming any other relief against the petitioner including mesne profits etc. before the competent authority or Court of of law.
(Mansoor Ahmad Mir),
rt Chief Justice.
( Tarlok Singh Chauhan),
August 8, 2016. Judge.
(krt)
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