Himachal Pradesh High Court
Court On Its Own Motion vs . Nhai & Ors. on 20 March, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Court on its own motion Vs. NHAI & Ors.
CWPIL No. 212/2017.
20.03.2024 Present: Court on its own motion.
Mr. K.D. Shreedhar, Senior Advocate with Ms. Shreya Chauhan, Advocate, for the respondent-NHAI.
Mr. I.N. Mehta, Senior Additional Advocate General with Mr. Ramakant Sharma and Ms. Sharmila Patial, Additional Advocates General, for respondents No. 1 to 3/State.
Mr. Shashi Shirshoo, Central Government Standing Counsel, for the respondent-UOI.
Mr. Y.K. Paul, Advocate, for respondent No. 8. Mr. Raman Sethi, Advocate, for respondent No. 9.
None for the remaining respondents.
Learned counsel for the respondent-NHAI has placed on record counter affidavit in compliance to the directions passed by this Court on the previous date of hearing.
2. Heard. We have perused the affidavit pertaining to the latest status report of progress of Kiratpur Nerchowk-Manali Project filed by the NHAI and taking into consideration the same, we deem it appropriate to pass the following directions:-
(1) The District Administration as also the Superintendents of Police, Bilaspur, Mandi and Kullu, are directed to assist the NHAI officials ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...2...
in the removal of encroachments that exist on .
the National Highways land.
(2) The onus to establish that an occupant is in "lawful possession" rests upon that "occupant", and, therefore, no duty cast upon the NHAI officials to carry out demarcation as has been held by this Court in CWP No. 3821 of 2021, titled Harnam Singh alias Rinku Chandel Vs. State of H.P. and Others, 2021 (3) Shimla Law Cases 1490, decided on 19.07.2021. The relevant portion whereof reads as under:-
"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.
7. In similar situations when there was unauthorized encroachment of pavements, the Hon'ble Supreme Court in Ahmedabad Municipal Corporation versus Nawab Khan Gulab Khan and others (1997) 11 SCC 121 observed asunder:-
"8. It is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...3...
liberty in a given case is by procedure which .
is reasonable, fair and just or it is otherwise.
Footpath, street or pavement are public property which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public roads. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The claim of the pavement-dwellers to construct huts on the pavement or road is a permanent obstruction to free passage of traffic and pedestrians' safety and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and repassing by the pedestrians. No one has aright to make use of a public property for their private purpose without the requisite authorization from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or repassing by the pedestrians.
9. This view was firmly laid down by this Court in OlgaTellis v. Bombay Municipal Corpn. (1985) 3 SCC 545 thus: (SCC p.589, para 57) "....no person has a right to encroach, by erecting a structure or otherwise, on footpaths,pavements or any other place reserved or earmarked for a public purpose like, for example,a garden or a playground; that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case."::: Downloaded on - 20/03/2024 20:37:24 :::CIS
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.
10. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tedious and time-consuming process leading to putting a premium for high- handed and unauthorized acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...5...
.
the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance,necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action taken by the appellant- Corporation is not violative of the principle of natural justice."
"22. Empirical study of urban and rural population in India discloses that due to lack of civic facilities and means of livelihood rpeople from rural areas constantly keep migrating to the urban areas resulting in mushroom growth of slums and encroachment of the pavements/footpaths etc. Every municipal corporation has statutory obligation to provide free flow of trafficand pedestrians' right to pass and repass freely and safely; as its concommitance, the corporation/municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachments on the pavements or footpaths which is a constant source of unhygienicecology traffic hazards and is risk-prone to the lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon. As held earlier,the Corporation should always be vigilant and should not allow encroachments of the pavements and footpaths. As soon as they notice any encroachment they should forthwith take steps to have them removed and not allow them to settle down for a long time. It is stated in their affidavit that they are giving 21 days' notice before taking action for the ejectment of encroachers. That procedure, in our view, is a fair procedure and, therefore, the right to hearing before taking action for ejectment is not necessary in the fact-::: Downloaded on - 20/03/2024 20:37:24 :::CIS
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situation. But the Commissioner should .
ensure that everyone is served with a notice and as far as possible by personal service and if it is not possible for reasons to be recorded in the file, through affixture of the notice on the hutment, duly attested by two independent panchas. This procedure would avoid the dispute that they were not given opportunity; further prolongation of the encroachment and hazard to the traffic and safety of the pedestrians."
(Emphasis supplied by us)
8. It cannot be denied that post-independence almost all the cities, big or small have seen an unplanned growth and the menace of illegal and unauthorized construction and encroachments have acquired monstrous proportions and everyone has been paying a heavy price for the same. In fact, it is on account of encroachments made on the road, there are frequent traffic congestion affecting the heath of the road-users.
The pedestrians and road-users are the worst victim of pollution which results in skin diseases of different types, asthma, allergy and even more dreaded disease like cancer.
9. At this stage, it will be apt to quote the observations made by the Hon'ble Supreme Court in Shanti Sports Club v. Union of India (2009) 15 SCC 705:-
"74 In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive appartus of the state have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans,zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...7...
the other regulatory bodies turn blind eye .
either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan,etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity,sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society,who cannot afford the luxury of air-
conditioned cars,are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...8...
substantial amount on construction of the .
buildings, etc...."
(Emphasis supplied by us)
10. The menace of illegal and unauthorized construction coupled with the encroachments was judicially noticed by the Hon'ble Supreme Court in a decision in Dipak Kumar Mukherjee versus Kolkata Municipal Corporation and others (2013) 5 SCC 336 in the following terms:-"2. In the last four decades, the menace of illegal and unauthorized constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. This Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions as in K. Ramadas Shenoy v. Town Municipal Council, Udipi (1974) 2 SCC 506, Virender Gaur v. State of Haryana (1995) 2 SCC 577, Pleasant Stay Holtel v. Palani Hills Conservation Council (1995) 6 SCC 127, Cantonment Board, Jabalpur v. S.N. Awasthi 1995 Supp (4) SCC 595, Pratibha Coop Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC 341, G.N. Khajuria v. DDA (1995) 5 SCC 762, Manju Bhatia v. NDMC (1997) 6 SCC 370 M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464, Friends Colony Development Committee v. State of Orissa (2004) 8SCC 733, Shanti Sports Club v. Union of India (2009) 15SCC 705 and Priyanka Estates International (P) Ltd. v. State of Assam (2010) 2 SCC 27."
"8. What needs to be emphasized is that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...9...
plan/development plan/zonal plan. The reports .
of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorizedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State r machinery when it is required to deal with those who have money power or unholy nexus with the power corridors."
11. Yet, again this menace of encroachment, illegal construction etc. was again noticed by the Hon'ble Supreme Court in a recent decision in Esha Ekta Apartments Cooperative Housing Society Limited and others versus Municipal Corporation of Mumbai and others (2013) 5 SCC 357 wherein it has been held as under:-
"1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserablyf ailed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has,keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise."
12. The Court is dealing with public property, wherein the public has interest and it is more than settled that private interest must yield to public interest. The petitioner even as per his admitted case is an encroacher and it is more than settled that right and title of the State cannot be permitted ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...10...
to be destroyed so as to give an upper hand to the .
encroachers, unauthorized occupants or land grabbers.
13. The Hon'ble Supreme Court in Mandal Revenue Officer vs. Goundla Venkaiah and another (2010)2 SCC 461, observed 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 r 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 get ting the iroccupation/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 indestruction 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 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.
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 ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...11..
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, necprecario - 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) SCC482. While adverting to the need for protecting theproperties of deities, temples and Devaswom Boards, theCourt observed as under: (SCC p.486, para 10) "10. The properties of deities, temples and Devaswom Boards, require to be protected andsafeguarded by their trustees/archakas /shebaits/employees. Instances are many where person sentrusted 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 ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...12...
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. Once it is found that the petitioner is a rank
-encroacher, then obviously his illegal possession cannot be permitted to be continued, that too, under the order of the court,as it is the bounden duty of the court to ensure that such wrongdoer is discouraged at every stage and not permitted to prolong the litigation.
15. The very object and purpose of encroaching upon the National Highway land by raising dhaba thereupon by the petitioner is only to make a quick buck by illegal means and the same be not permissible at any costs.
16. State is ordinarily rated as virtuous litigant and it goes without saying that the property recorded in government khata is the property of the public at large and, therefore, cannot be jeopardized by an individual or handful of people. The Court while dealing with a dispute involving public property should beat guard against any fraud, collusion and concoction militating against the fair play of justice jeopardizing the interest of the State.
17. In M.I.Builders Pvt. Ltd. versus Radhey Shyam Sahu and others (1999) 6 SCC 464, the Hon'ble Supreme Court in unequivocal terms held that no consideration should beshown to the builder or any other person where construction is unauthorized and it was further held that this dicta is now almost bordering the rule of law. It was further held that the Courts cannot exercise discretion which encourages illegality and perpetuates any illegality. Unauthorized construction, if it is illegal cannot be compounded and has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Further, it was held that the Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders solely on their ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...13...
personal predilections and peculiar .
dispositions. Judicial discretion whenever it is required to be exercised has to be in accordance with law and set legal principles.
18. There has to be zero tolerance on the part of the Court when it gets down to decide cases of unauthorized encroachments, obstructions and illegal constructions, violation of statutory plans and schemes. Therefore, even on the ground of sympathy, the Court cannot come to the rescue of the petitioner or else such direction would be blatant violation of the orders of the Hon'ble Supreme Court and grant of any relief to the petitioner is not only impermissible, but would even amount to judicial impropriety, blatant and scant respect for the orders of the Hon'ble Supreme Court which otherwise are binding upon this Court under Article 141 of the Constitution of India
19. Similar issue regarding encroachment on the National Highway land between Kaithlighat and Parwanoo came up for consideration before this Court in CWPIL No. 249 of 2017,wherein after quoting the relevant provisions of the National Highway Act, this Court observed as under:-
"6. Thus, as per the above provisions, National Highway Authority of India (NHAI) is required to remove all the encroachments not only from the land which is acquired for the National Highway purposes but even the land appurtenant to the Highway is required to be kept safe from encroachment in the interest of traffic safety and NHAI is also empowered to remove any unauthorized construction whether temporary or permanent on such land without further notice.
7. Apart from the above, the State Government has enacted the Himachal Pradesh Roadside Land Control Act, 1968 and Himachal Pradesh Road Infrastructure Protection Act, 2002 and in addition the State has also enacted the Municipal Corporation Act, 1994 as also the Municipal Act, 1994 whereby it is authorized to remove the encroachments not only over the acquired width but also the one which are existing over the controlled width.::: Downloaded on - 20/03/2024 20:37:24 :::CIS
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8. There can be no gainsaying that an .
encroacher is a trespasser and has no right to obstruct the duties of the Government in maintaining the roadway for free flow of traffic. Further nobody is adversely affected by the removal of encroachment except the encroacher. The encroacher who besides encroaching the highways lands acquired for road purpose also creates hindrance to traffic.
9. In our view the responsibility of maintaining and managing the Highways is vested in or entrusted to the NHAI or the State Government or any other authority and entails the functions of prevention or r removing encroachments along the highways because encroachments along the highways are bound to obstruct the use of Highways and impede the flow of traffic on such Highways.
10. Despite the provisions of the Act(s) referred to above and the repeated orders passed by this Court in CWPILNo. 36 of 2017 and CWPIL No. 250 of 2017, the acts of illegal encroachments raising illegal and unauthorised construction has continued unabated. In CWPIL No. 36 of 2017 we had directed the Deputy Commissioner, Solan and Superintendent of Police, Solan to ensure that no further unauthorised construction of any nature should be carried out. Whereas, in CWPIL No. 250 of 2017 this Court vide order dated 17.08.2018 had directed the competent authority(ies) both National Highway Authority as also the State Government to remove forthwith all the encroachments that are existing over Highways and submit compliance report within six weeks. The aforesaid observations apply in all forms to the instant case.
20. It is not only high time but it is necessary to discourage encroachers immediately to such unlawful activities of encroaching on government land, that too, on the National Highways and though raise structures like dbaha, restaurant etc.over these land in order to make huge profit. It is on account of higher returns, such illegal encroachments are carried out over the prime properties on the National Highways and structures are constructed ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...15...
thereupon by the unscrupulous persons, .
without any right. Therefore, all such cases of illegal encroachments,unauthorised constructions have to be dealt with sternly and swiftly. Social justice will continue to be perpetrated with impunity. Merely because someone is economically weak and has no adequate means of livelihood, will not give him a right to encroach and erect structures on any public place or else there will be a complete breakdown of law and order and chaos, which shall be extremely detrimental to the interest of the society.
21. It is shocking that number of unauthorised 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."
Thereafter, vide order dated 01.12.2022 this Court observed as under:-
"3. We really wonder why the respondent- department is waiting for the demarcation to be conducted when admittedly as per its own case, the encroachments have been made on the acquired width of the roads.
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 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 ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...16...
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:-
"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 ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...17...
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 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 ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...18...
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;
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 ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...19...
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, r 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, 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:-::: Downloaded on - 20/03/2024 20:37:24 :::CIS
...20...
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. 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 inP. Lakshmi Reddy v. L. Lakshmi ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...21....
Reddyadverted 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 inA.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:-
"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 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." [ 2 (i) Kiratpur-Nerchowk
(a) The CALA Bilaspur is directed to hand over the possession of land which stands acquired vide Notification SO No. 1579(E), dated 04.04.2022, so as to facilitate the construction of service road in Naulakha-Dadour Section of NH-21 (old) within a period of four weeks' from today.
(b) The CALA is further directed to hand over the possession of 12 structures, for which compensation has already been paid by the NHAI, so as to facilitate the demolition thereof.
(c) Apart from above 12 structures, there are 09 other structures which have been acquired and compensation has been paid, however, the possession thereof has not been handed over to the NHAI.
The CALA Bilaspur is directed to hand over the possession of all these structures within the aforesaid stipulated time.
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(d) 06 structures in District Bilaspur for .
which compensation has been paid are required to be demolished.
The NHAI is directed to carry out the demolition and the District Administration and Police Authorities are directed to provide all necessary assistance for demolition of these structures within the aforesaid stipulated time.
2 (ii) Phase-II - Green Field Alignment
(a) There are 13 structures in District Mandi and 26 structures in District Bilaspur, for which, compensation has already been paid and are required to be demolished.
The NHAI is directed to demolish all these structures within the aforesaid stipulated time and the District Administration and Police Authorities are directed to provide all necessary assistance to facilitate the demolition.
2(iii) Phase-III- Sunder Nagar Bypass
(a) There are total 08 structures in District Mandi, for which, compensation has already been paid and are required to be demolished.
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The NHAI is directed to carry out the .
demolition and the District Administration and Police Authorities, Mandi are directed to provide all necessary assistance to facilitate the demolition.
2 (iv) Nerchowk-Pandoh Project
(a) The Project Director of M/s MKC Construction Ltd. is directed to file status report as also the undertaking clearly setting out the timeline by which the construction of that stretch of the road would be completed by it.
(b) "Patwarkhana" at Muhal Daundhi in District Mandi, for which compensation has already been paid, is required to be demolished The NHAI is directed to demolish the same within the aforesaid stipulated time, for which, necessary assistance shall be rendered by the District Administration and Police Authorities, Mandi.
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2(v) Pandoh-Takoli Project .
The NHAI is directed to place on record the DPR consultant report by the next date of hearing.
2(vi) Takoli-Kullu Project
(a) The NHAI is directed to furnish the status report regarding 04 structures qua which, matter is sub judice in District Court Mandi.
(b) 15 structures in District Kullu, for which, compensation has already been paid, which are required to be demolished, be demolished by the next date of hearing.
The District Administration and Police Authorities, are directed to provide all necessary assistance so as to facilitate the demolition.
2(vii) Kullu-Manali Project
(a) Since two petitions pending before this Court are creating hindrance in the development of parking facilities and other amenities, which are proposed by the National Highways Logistics Management Limited (NHLML) (A 100% Subsidiary of NHAI), ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...26...
therefore, the Registry is directed to list both .
these matters, i.e. CWP No. 945 of 2019, titled M/s Preet Hotel Pvt. Ltd. & Another Vs. NHAI & Others and CWP No. 2496 of 2023, titled Nanak Chand & Another Vs. NHAI & Others, after obtaining necessary permission from Hon'ble the Chief Justice.
(b) 02 structures in this project, for which compensation has already been paid, which are required to be demolished, be demolished before the next date of hearing.
The District Administration and Police Authorities, are directed to provide all necessary assistance so as to facilitate the demolition of all these structures.
3. The Deputy Commissioner, Kullu is directed to convene a meeting of the NHAI, the District Administration and Municipal Council Manali, so as to resolve the issue regarding the construction of the Municipal Council Shops, Sulabh Shouchalya and Mortuary etc. for which purpose, earlier also a meeting was convened on 01.04.2019.
4. The Deputy Commissioner, Kullu is further directed to resolve the issue regarding the parking of large ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...27...
number of Volvo Buses/Cars/LMVs on the road side in .
Manali, which is the cause of regular traffic hindrance.
5. Given the fact that tourists season is to commence shortly, the NHAI is directed to remove all the encroachments on these sections and as mentioned above, onus to establish that the occupant is in lawful possession shall be on such occupant and the NHAI shall not be responsible to carry out any demarcation in this regard.
6. The District Administration and Police Authorities, are directed to render all necessary assistance to the NHAI so as to facilitate the removal of the encroachments and also carry out the demolition(s).
7. This Court in CWPIL No. 212 of 2017 has categorically restrained all the Civil Courts/Authorities from entertaining any matters relating to encroachments over the National Highways. In such circumstances, the NHAI is directed to furnish the list of the cases that are pending in various Courts so that appropriate orders/directions can be passed/issued.
8. The Municipal Council Manali and the Taxi Union are directed to maintain accounts regarding the ::: Downloaded on - 20/03/2024 20:37:24 :::CIS ...28...
parking fee that is being collected by them since .
01.04.2019.
9. The Municipal Council, Manali and Manali Taxi Union, District Kullu are impleaded as party respondents and shall figure as respondents No. 13 & 14, respectively.
10. Issue notice to the newly impleaded respondents No. 13 & 14 returnable for 24.04.2024, on taking steps within a week.
11. Since the Amicus Curiae, earlier appointed by this Court, is no more in the land of living, we deem it appropriate to appoint Mr. Sunil Mohan Goel, Advocate, who is present in the Court, as Amicus Curiae to assist this Court.
12. The Registry is directed to supply the complete paperbook alongwith the orders passed from time to time by this Court to the learned Amicus Curiae.
List on 24.04.2024.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 20th March, 2024 (raman/subhash) ::: Downloaded on - 20/03/2024 20:37:24 :::CIS