Himachal Pradesh High Court
Mehar Chand vs State Of Himachal Pradesh And Another on 6 September, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 4588 of 2015 .
Judgment reserved on: 29.8.2016 Date of Decision: 6.9.2016.
Mehar Chand. ...Petitioner
Versus
State of Himachal Pradesh and another. ...Respondents
______________________________________________________________ of Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting?1 Yes.
For the Petitioner: Ms.Vandana Mishra Panta, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General with Mr.Anup Rattan,Mr.Romesh Verma, Mr.Varun Chandel, Additional Advocate Generals and Mr.Kush Sharma, Deputy Advocate General.
Tarlok Singh Chauhan, Judge Petitioner has lost before all the four authorities below and having been held to be an encroacher has been ordered to be evicted from the land measuring 6-19-5 bighas, comprised in Khasra No. 337/16/1, 331/323/1 and 171, Kita 2, situated in Mauza Chamog, Tehsil Karsog, District Mandi H.P. (herein after referred to as the land in dispute).
2. It appears that in the year 1990 on the report of Patwari Halka Dabrot, Tehsil Karsog, District Mandi, proceedings under Section 163 of the HP Land Revenue Act, 1954 (for short the 'Act') were initiated against the petitioner before the Assistant Collector Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 2 CWP No. 4588 of 2015 1st Grade, Karsog on 14.12.1990 on the ground that he was in unauthorized occupation of the land in dispute.
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3. On 5.4.1991 the Assistant Collector 1st Grade passed ex parte order of eviction against the petitioner, which consequent upon appeal being filed by the petitioner was set aside on 8.10.1991 by the Collector Sub Division, Karsog and the matter of was remanded back to the Assistant Collector 1st Grade for fresh decision. rt
4. The Assistant Collector 1st Grade again vide order dated 30.9.1997 ordered the eviction of the petitioner and at the same time imposed a fine of `6,950/-. This order was assailed by the petitioner by way of appeal before the Collector Sub Division, Karsog, who vide his order dated 21.9.1999 dismissed the appeal.
These orders thereafter were challenged before the Commissioner, Mandi Division at Mandi by filing Revision Petition No. 40 of 2000.
However, the same was also dismissed vide order dated 27.10.2001.
5. Undeterred, the petitioner then approached the Financial Commissioner (Appeals) by filing Revision Petition No. 35 of 2010. However, the said Revision Petition too ordered to be dismissed vide order dated 18.8.2015, constraining the petitioner to file the instant writ petition.
6. It is averred that the authorities below have failed to take into consideration the clear and unambiguous testimony of the petitioner corroborated by two other witnesses of the area, who ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 3 CWP No. 4588 of 2015 have clearly deposed that there are about 250-300 fruit bearing apple and almond trees standing over the disputed land, which has .
been in possession of the petitioner and earlier to that in his father's possession for the last 35 years and thus it was proved on record that the petitioner was in open, hostile and continuous possession of the disputed land and therefore, had become owner of thereof.
7. The respondents have filed reply, wherein it is averred rt that as the petitioner had miserably failed to prove his title, claim and right over the land in dispute by producing tangible oral or documentary evidence, therefore, he could not now find fault with the orders, which have been passed strictly in conformity and compliance of law. It is specifically averred that the claim of the petitioner with regard to adverse possession over the land in dispute is totally wrong, baseless and misleading because had the petitioner been in adverse possession of the land in dispute for more than 35 years, then the same would have been recorded/reflected in the record of rights prepared during the settlement carried out in early seventies in Tehsil Karsog.
We have heard learned counsel for the parties and have also gone through the records of the case.
8. At the outset, it may be noticed that the Commissioner Mandi had dismissed the Revision Petition vide order dated 27.10.2001, yet the petitioner did not chose to assail this order for nearly 9 years and the same was ultimately assailed on 9.3.2010 in ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 4 CWP No. 4588 of 2015 Revision Petition by invoking the provisions of Section 17 of the H.P. Land Revenue Act, 1954, which reads thus:-
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"17. Power to call for, examine and revise proceedings of Revenue Officer.--(1) The Financial Commissioner may at any time call for the record of any case pending before (or disposed of by) any Revenue Officer subordinate to him. (2) A Commissioner or Collector may call for the record of any of case pending before, or disposed of by any Revenue Officer under his control.
(3) If in any case in which a Commissioner or Collector has rt called for a record, is of the opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Financial Commissioner.
(4) The Financial Commissioner may in any case called for by himself under sub-section (1) or reported to him under sub-
section (3) pass such order as he thinks fit.
Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate Revenue Officer and effecting any question of right between private persons without giving those persons an opportunity of being heard."
9. It is manifest from the perusal of the aforesaid provision that no particular period of limitation in fact has been prescribed for filing of revision and the expression "may at any time" has been used.
10. Therefore, the first and foremost question which will require our consideration is as to whether in absence of any period of limitation having been prescribed for the exercise of powers of revision, can the period be extended to infinity and the order remain open for challenge forever?. Can it be assumed that the legislature has conferred an everlasting and ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 5 CWP No. 4588 of 2015 interminable power in point of time for exercising the powers of revision by not specifically providing for any period of .
limitation?
11. These issues are no longer res integra and have been elaborately dealt with by the Hon'ble Supreme Court in its recent decision in case titled Joint Collector Ranga Reddy of District & Another Vs. D.Narsing Rao and others (2015) 3 SCC 695, where Hon'ble Justice T.S. Thakur, J., in his Lordships rt separate, though concurring judgment has held that where no limitation period is prescribed under the statute, the power should be exercised within a reasonable period. It was further observed that reasonableness of the period is to be determined having regard to lapse of time between the knowledge of the order and exercise of power. It was held as under:
"25. The legal position is fairly well-settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
26. In one of the earlier decisions of this Court in S.B. Gurbaksh Singh v. Union of India1976 (2) SCC 181, this Court held that exercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 6 CWP No. 4588 of 2015 exercise may affect the validity. But what would constitute reasonable time would depend upon the facts of each case.
27. To the same effect is the decision of this Court in .
Ibrahimpatnam Taluk Vyavasaya Coolie Sangham V.K. Suresh Reddy and Ors. (2003) 7 SCC 667 where this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief sooner be denied of only on the ground of delay. The court said (SCC p.677, para 9) "9....In cases of fraud, this power could be exercised rt within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
28. To the same effect is the view taken by this Court in Sulochana Chandrakant Galande. v. Pune Municipal Transport and Others (2010) 8 SCC 467 where this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrarily and interminably. This Court observed: (SCC p.476, para 28) "28. The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders /allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute".
29. In State of H.P. and Ors. v. Rajkumar Brijender Singh and Ors. (2004) 10 SCC this Court held that in the absence of any special circumstances a delay of 15 years in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed (SCC pp.588-89, para-6) ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 7 CWP No. 4588 of 2015 "6.We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub- section (3) of Section 20. As indicated above, the .
Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that High Court of H.P. sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the of power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. rt For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and [pic]circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, maybe, by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub- section (3) of Section 20".
30. We may also refer to the decision of this Court in M/s Dehri Rohtas Light Railway Company Ltd. V. District Board, Bhojpur and Ors. (1992) 2 SCC 598 where the Court explained the legal position as under: (SCC pp.602-03, para 13) "13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own [pic] facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 8 CWP No. 4588 of 2015 that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in .
such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilok chand case relied on is distinguishable on the facts of the present of case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the rt pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed".
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
12. The aforesaid exposition of law makes it evidently clear that even when there is no period of limitation prescribed for exercise of any power revisional or otherwise such power must be exercised within a reasonable period. Delayed exercise of ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 9 CWP No. 4588 of 2015 revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean .
avoidable and endless uncertainty in human affairs, which is not the policy of law. Similar is the re-iteration of law in judgment rendered by this Bench in Saraswati Devi and others Vs. State of H.P. and others, Latest HLJ 2015 (HP) 1276.
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13. Adverting to the facts, it would be noticed that the Financial Commissioner has though noted the delay of about 9 rt years in filing of the Revision Petition, but thereafter no findings with respect to the maintainability or non-maintainability of the Revision Petition on the basis of such delay has been recorded. In such circumstances, we are clearly of the opinion that it was incumbent upon the Financial Commissioner to have firstly decided the question of delay, as there was clearly an embargo on his power to proceed further with the Revision. It was only after the delay had been condoned, could he have entertained and decided the Revision Petition on merits. There is no material placed on record by the petitioner, wherefrom it can be gathered that he diligently and promptly filed the Revision Petition. Rather the record clearly suggests that the petitioner not only adopted a cavalier, casual and lackadaisical approach in filing the Revision Petition, but was also negligent in doing so.
14. As regards the claim of adverse possession, we find that the petitioner has not chosen to place on record the reply filed by him before the Assistant Collector 1st Grade, so as to enable ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 10 CWP No. 4588 of 2015 this Court to gather and appreciate the exact nature of plea of adverse possession that may have been set up. After all physical .
fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature.
15. Plea of adverse possession is not a pure question of of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:-
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(a) On what date he came into possession;
(b) What was the nature of his possession;
(c) Whether the factum of possession was known to the other party;
(d) How long his possession has continued, and
(e) His possession was open and undisturbed.
16. Having failed to place on record the relevant pleadings, we are left with no other option but to drawn an adverse inference against the petitioner.
17. Now going by the evidence upon which much reliance has been placed by the learned counsel for the petitioner, we find that the petitioner in addition to himself had examined two witnesses. The petitioner while appearing as a witness has stated that he has been in possession of the encroached land for about 35 years and over which had planted 250-300 apple and almond trees. The age of apple trees was about 28 years and that of almond trees was 18 years. He had considered himself to be the owner of the land in dispute and had been cultivating the same ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 11 CWP No. 4588 of 2015 without any let or hindrance or interference from any side and that he has no intention to give up such possession. Similar is the .
statement of two other witnesses examined by him and notably none of the witnesses including the petitioner have been cross-
examined.
18. However, the moot question that still arises for of consideration is as to whether the possession of the petitioner over the land in dispute has ripened into an adverse possession.
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19. 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 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 ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 12 CWP No. 4588 of 2015 possible for the Government to protect or safeguard its properties from encroachments.
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20. 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 of declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings, that the rt 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.
21. Similar issue came up before the Hon'ble Supreme Court in R. Hanumaiah and another vs. Secretary to Government of Karnataka, Revenue Department and others (2010) 5 SCC 203 and it is apt to reproduce the relevant observations which reads 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 ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 13 CWP No. 4588 of 2015 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.
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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 of 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 rt 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 the 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 ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 14 CWP No. 4588 of 2015 of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.
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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 of 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 rt 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 collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 15 CWP No. 4588 of 2015 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."
22. Reverting back to the facts, it would be noticed that the of specific case of the petitioner while appearing as a witness before Assistant Collector 1st Grade was that the land in dispute was in his rt possession and earlier to that in his predecessor's possession for last about 35 years. Notably, the statement of the petitioner and his two witnesses had been recorded on 30.4.1997 and even if the same in absence of any cross-examination is taken to be a gospel truth, would at best prove his possession from the year 1962 onwards. Admittedly, the eviction proceedings against the petitioner as per his own showing were already initiated on 4.10.1990 i.e. well before the completion of the statutory period of 30 years and therefore, no fault can be found with the orders passed by the authorities below whereby they negated the plea of adverse possession set up by the petitioner.
23. 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.
24. 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 has been held by the Hon'ble Supreme Court in Mandal ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 16 CWP No. 4588 of 2015 Revenue Officer vs. Goundla Venkaiah and another (2010)2 SCC 461 in the following terms:-
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"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 of 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 rt apparatus for getting their occupation/possession construction regularized. It is our considered view that where an and 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, 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 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 ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 17 CWP No. 4588 of 2015 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 of 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 rt 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, 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 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."
::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 18 CWP No. 4588 of 201525. As observed earlier, the petitioner is a rank-encroacher and after making large scale encroachments has turned the .
litigation into 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. Therefore, it is the of duty of the court to see that such wrongdoer is discouraged at every stage and even if he has succeeded in prolonging the rt litigation, then he must suffer the costs of all these years and also bear the expenses of such unwanted and otherwise avoidable litigation.
26. 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 encroacher who has cut down the forests to pave way for apple orchards should not be made to cough up the extra buck which he has earned over a long period of time.
27. People have long referred to the trees as 'Earth's lungs' as they play a crucial role in our existence, consuming large quantities of carbon dioxide and producing oxygen which enables us to breathe. Apart from providing oxygen, they also cleanse the air and improve its quality, control climate, protect soil and support vast varieties of wildlife. It is universally accepted that deforestation is major contributing factor of climate change and that is why it is ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 19 CWP No. 4588 of 2015 so important to protect trees and secure our natural landscapes for future generations.
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28. 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 of inevitable obligations which are to be respected when the theory of 'sustainable development' is put into operation. What is required is rt the insistence for 'gun and guard' approach in day-to-day supervisory functions of the Government.
29. 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 liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction."
30. In view of the above declaration, the State is under obligation to safeguard and compensate not only the victims of pollution but also liable to compensate for the adverse effects of an environmental damage. The 'Polluters Pays Principle' as interpreted by the Hon'ble Supreme Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 20 CWP No. 4588 of 201531. 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.
32. The 'Polluter Pays Principle' can appropriately be of applied to the cases of encroachers because it is the injury caused by each of the occupier/encroacher to the pristine forest wealth and rt is, therefore, liable to compensate for the same.
33. 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.
34. The activities of the occupiers/encroachers in the forest land for the last so many years have had its antagonistic effectiveness in the environmental premise. Therefore, all those responsible for environmental degradation cannot be exculpated.
35. It is therefore the duty of this court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of keeping the litigation alive.
36. In Indian Council for Enviro- Legal-Action vs. Union of India and others (2011) 8 SCC 161, it is noticed that conduct of ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 21 CWP No. 4588 of 2015 the parties is to be taken into consideration and it was held as follows:-
.
"197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view:
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain of made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from rt 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.
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."
37. It is not only high time, but it is necessary to arrest and curb immediately such unlawful activity of encroachment over the government lands as the public order is adversely affected by such unlawful activity. It is probably on account of the higher returns from agricultural and horticultural pursuits from the encroached lands that unscrupulous persons have occupied without any semblance of right, vast extends of land belonging to the ::: Downloaded on - 15/04/2017 21:10:17 :::HCHP 22 CWP No. 4588 of 2015 Government. Therefore, unless all such cases of illegal encroachments are dealt with sternly and swiftly, the evil cannot .
subside and social injustice will continue to be perpetrated with impunity.
38. It is evidently clear from the aforesaid discussion that this petition not only sans merit, but the intent behind filing this of petition is not also bonafide as the only endeavour of the petitioner appears to be to prolong the litigation so as to enable him to reap rt the benefits from the large tract of government land illegally encroached by him and thereby convert this litigation into a fruitful industry.
39. Accordingly, this petition is dismissed. The pending applications, if any, are also disposed of.
40. However, before parting, 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 law.
(Mansoor Ahmad Mir) Chief Justice.
(Tarlok Singh Chauhan),
6th September, 2016 Judge.
(KRS)
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