Himachal Pradesh High Court
Court On Its Own Motion vs . State Of H.P. & Others on 3 October, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Court on its own motion vs. State of H.P. & others CWPIL No.17 of 2014 01.10.2024 Present: Mr.J.L. Bhardwaj, Senior Advocate, alongwith Mr.S.Partha Swami, Advocate, as Amicus Curiae. Mr.Varun Chandel, Additional Advocate General, for the respondents-State.
Status report filed by the Additional Chief Secretary (Revenue) to the Government of Himachal Pradesh, reflects that out of 4 cases, encroacher has been evicted in one case only and in 3 other cases though warrants of ejectment have been issued but execution thereof is pending. Execution be ensured well before next date of hearing and fresh status report be placed on record on that day.
In separate status Report filed by the Chief Conservator of Forests, it has been stated that out of 37 encroachment cases, which were detected/found in Village Jharag and Challan were filed before Collector-cum-DFO Rohru, under H.P. Public Premises (Eviction and Rent Recovery) Act, 1971, in 21 cases the encroachers have been evicted, in 3 cases appeals have been filed by the encroachers before the Divisional Commissioner, Shimla, and in 13 cases encroachers could not be evicted because of the order dated 06.12.2017, passed in CWP No.1093 of 2016, titled as Chatter Singh vs. State of H.P. and others, wherein there is reference of retaining encroached land up to 5 bighas shall be applicable to all cases of encroachments in excess to 5 bighas of land.
The submission made in the status report is misconceived because in aforesaid order dated 06.12.2017, in para- 10, there is reference of temporary stay of eviction with regard to the encroachment of less than 5 bighas of land, whereas in para-15 it has been stated that the order shall equally apply to all cases of encroachment in excess of 5 bighas of land. It is apt to record that there is direction in para-14 of this order to take appropriate action against the encroachers as directed by the Court and, therefore, application of the order dated 06.12.2017 no where restrains the concerned Authority from taking any action for removal of encroachment from the forest land unless there is specific stay order passed by the competent Court in existence.
For more clarity in the matter, it is also apt to record that in view of Forest Conservation Act, 1980, State has no power and jurisdiction to regularize the encroachment in the forest land. In fact, use and nature of forest land cannot be changed without approval of Central Government. In present case in any eventuality, there is no possibility of regularization of land encroached upon by the petitioner, whereas fact of encroachment on Government land has been admitted by the petitioner by filing affidavit.
As observed by this Court in its order dated 17.7.2024, passed in CWP No. 1028 of 2002 and connected petitions including present petition, adjudication of CWP No. 1028 of 2002 regarding validity of Section 163(A) of the Himachal Pradesh Land Revenue Act, 1953 and Himachal Pradesh Regulation and Encroachment (in certain cases) of Government Land and Disposal of Government Land Rules, 2002, shall have no impact in the present matter, because in the absence of approval of the Central Government or for want of pendency of any request for such approval of the Central Government, the forest land cannot be put to a use, which is a non- forest purpose, as also has been defined and explained in Section 2 of Forest Conservation Act, 1980, clarifying that breaking up or clearing of any forest land or portion thereof for the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticulture crops or medical plants and even any purpose other than reafforestation, shall amount to using such land for non-forest purpose.
It is also relevant to record here that in some cases temporary protection was granted to the encroachers who had approached this Court, expecting regularization of encroachment up to 5 bighas of land on the basis of circumstances existing at that time as the Government had notified the proposed Scheme for regularization of the land up to 5 bighas in the year 2017. Whereas, as on date, it has been already communicated on behalf of the State, through learned Advocate General, that there is no such proposal pending before the State for regularization of the encroachment of forest land and, therefore, as also observed by this Court in various other matters, temporary stay granted with respect to encroachment up to 5 bighas of Government/forest land, has lost its efficacy and relevancy. In case someone has approached this Court or any other Court and there is stay operating in favour of such person, respondents-Authority is expected to take appropriate steps for getting the same vacated expeditiously.
Three cases reported in status report of Chief Conservator of Forests, to be pending in appeal before the Divisional Commissioner, preferred by the encroachers, are also directed to be taken to its logical end as expeditiously as possible and preferably within one month from today.
Respondents-Department are also directed to place on record details of all cases of encroachment, including pendency of appeal/case before the Divisional Commissioner or any other Authority and cause of pendency thereof.
With aforesaid observations, respondents-Department are directed to take appropriate action for implementation of eviction order passed against all remaining encroachers in accordance with law in the light of aforesaid observations.
Fresh status report be produced on next date of hearing.
List on 15.10.2024.
(Vivek Singh Thakur), Judge.
(Bipin C. Negi), Judge.
October 1, 2024.
(Purohit) Digitally signed by SUBHASH CHAND DHIMAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF SUBHASH HIMACHAL PRADESH SHIMLA, Phone= 3418061207364d8c002725dfc58ff116f678c3d39289db29b992cce875905119, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10edc4e6cd2ed5d4a8c30134c1b, CN= SUBHASH CHAND DHIMAN CHAND DHIMAN Reason: I am the author of this document Location:
Date: 2024.10.14 11:17:40+05'30' Foxit PDF Reader Version: 2024.3.0