Himachal Pradesh High Court
Dharam Chand vs . State Of Hp And Others on 10 May, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
Dharam Chand vs. State of HP and others CWP No.5159 of 2020 10.05.2023 Present: Mr. Shagun Sharma, Advocate, vice counsel, for the .
petitioner.
Mr. J.S. Guleria and Ms. Priyanka Chauhan, Deputy Advocate Generals and Mr. Rajat Chauhan, Law Officer, for the respondents/State.
The official respondents have feigned ignorance regarding the position of law with regard to the encroachments made on the public roads and yet again referred the cases for demarcation to the Naib Tehsildar, Holi, Tehsil Bharmour, District Chamba, which has not been still carried out.
2. This Court, while passing judgment in CWP No.3821 of 2021, titled Harnam Singh alias Rinku Chandel vs. State of HP and others, on 19.7.2021, has made it absolutely clear that the footpaths, street, pavement, acquired width of the Highways are public properties which are intended to serve the convenience of the general public. They are not for private use and their use for private purpose frustrates the very object for which they are carved out from portions of public roads. This Court has further observed that the future expansion of the roads gets stalled and frustrated. The encroachment of acquired width of land of the road results in permanent obstruction to free passage of traffic and even the pedestrians' safety and security is put to stake.
Therefore, the acquired width of the land cannot be permitted to be used for any private purpose.
3. It would be appropriate to refer to relevant Paragraphs No.6 and 21 of the judgment dated 19.7.2021, passed in Harnam Singh alias Rinku Chandel's case (supra), which read as under:-
::: Downloaded on - 12/05/2023 20:30:27 :::CIS -2-"6. At the outset, it may be observed that footpaths, .
street, pavement, acquired width of the Highways are public properties which are intended to serve the convenience of the general public. They are not for private use and their use for private purpose frustrates the very object for which they are carved out from portions of public roads. The future expansion of the roads gets stalled and frustrated. The encroachment of acquired width of land of the road results in permanent obstruction to free passage of traffic and even the pedestrians' safety and security is put to stake. Therefore, the acquired width of the land cannot be permitted to be used for any private purpose.
21. It is shocking that number of unauthorized constructions have come along the highways, be it State or National Highways, that too, right under the nose of the authorities, there can only be two presumptions; either complete incompetence or active collusion. Either way it would be against the law. For years none is being held accountable for this, with the result, there is mushrooming of these structures as a technique to encroach upon the prime land and carry out business, that too, without even adhering to the bare minimum norms of such business."
4. Further, it shall also be apt to reproduce the relevant observations, as contained in Paragraphs 4 to 9 of the order dated 3.11.2022, passed in Harnam Singh alias Rinku Chandel's case (supra), as under:-
" 4. It is more than settled that 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 ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -3- 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 or any other proceeding 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 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.
5. 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 Government and has, therefore, to be distinguished from those of private parties.
6. 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. It is apt to reproduce the relevant observations, which read thus:-::: Downloaded on - 12/05/2023 20:30:27 :::CIS -4-
"Nature of proof required in suits for declaration of .
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 private parties, to lay claim of ownership or ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -5- 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 properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray 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 ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -6- 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; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
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 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 (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 ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -7- 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."
7. Similar reiteration of law can be found in one of the latest judgments of the Hon'ble Supreme Court in State of A.P. vs. A.P. State Wakf Board, 2022 SCALE
321.
8. Even otherwise, this aspect of the matter has already been considered by a division bench of this Court, in a judgment, authored by one of us (Justice Tarlok Singh Chauhan) in case titled Pancham Chand vs. The State of H.P. & anr., 2016 (4) ILR (HP) 1715, wherein it proceeded to observe as under:-
"11. 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 to do so, the petitioner cannot now turn around and question the same.
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, ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -8- 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, 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, unauthorized 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 threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession.::: Downloaded on - 12/05/2023 20:30:27 :::CIS -9-
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:-
"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 ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -10- 2007 (7) SCC 482. While adverting to the need for protecting the properties of deities, temples and .
Devaswom Boards, the Court observed as under:-
"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 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 ::: Downloaded on - 12/05/2023 20:30:27 :::CIS -11- unwanted and otherwise avoidable litigation."
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9. In view of the aforesaid exposition of law, the onus is upon the encroacher(s), to either prove his/her entitlement or title by adverse possession and having failed to do so, encroacher(s) is/are liable to be evicted and such eviction cannot be stalled only for want of demarcation."
5. In view of the aforesaid legal position, the Superintending Engineer, 7th Circle, HPPWD, Dalhousie is directed to remove all the remaining encroachments and report compliance before this Court on the next date of hearing.
6. List on 24.5.2023. It is made clear that no Civil, Revenue or other Court or authority shall entertain any claim made on behalf of 43 encroachers. The District administration, including Collector, Deputy Superintendent of Police, Bharmour, SDM, Bharmour & Resident Commissioner, Pangi, District Chamba and other State Agencies, are directed to provide all necessary assistance to the Superintending Engineer, 7th Circle, HPPWD, Dalhousie to carry out the eviction.
( Tarlok Singh Chauhan )
Acting Chief Justice
( Virender Singh )
May 10, 2023 (KS) Judge
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