Himachal Pradesh High Court
Lahori Singh vs State Of H.P. & Others on 27 August, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 309 of 2017
.
Date of decision: 27.08.2024
Lahori Singh ...Petitioner.
Versus
State of H.P. & others ...Respondents.
Corum
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin C. Negi, Judge.
Whether approved for reporting?1
For the Petitioner : Mr. Vinod Sharma and Ms. Mamta Bhatwan,
Advocates
For the Respondents: Mr. Anup Rattan, Advocate General,
alongwith Mr. Baldev Negi, Additional
Advocate General.
Vivek Singh Thakur, Judge (Oral)
Petitioner, in present case, has assailed order dated 06.10.2016,
passed by the Divisional Commissioner, Shimla in Appeal No. 86 of 2016,
titled as Lahori Singh Vs. State of H.P and another, whereby his eviction
from the Government/Forest Land comprising Khasra Nos.2003/2
measuring 1-01-69 and 1996/3 0-09-84 hectare, situate in Mauza UF
Badhal, Revenue Village Bhdhal, Tehsil Jubbal, District Shimla, as directed
vide order dated 18.09.2008, passed by Collector-cum-DFO, Rohru Forest
Division Rohru, H.P., in case No. 25/99, has been affirmed.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
2. The Forest Guard of Bhadhal had chalked the damage report and
Range Forest Officer, Jubbal had submitted the challan in the Court of
.
Collector-cum-Divisional forest Officer, on the basis of which notice was
issued to the petitioner with respect to the encroachment on Forest Land.
The petitioner had submitted that he had sown agricultural crop and had
raised Apple orchards over the encroached land but he did not submit the
proof of long/adverse possession and he also did not agree to vacate the
forest land voluntarily and considering the material on record, Collector-
cum-DFO has passed the eviction order against him from the above
mentioned Forest Land.
3. Learned counsel for the petitioner has submitted that by invoking
provisions of H.P. Public Premises & land (Eviction & Rent Recovery) Act,
1971, petitioner has been deprived of his right to raise a question of title as
provided under Section 163 of H.P. Land Revenue Act.
4. In the present case, petitioner, before initiation of eviction
proceedings or thereafter, has not invoked jurisdiction of competent Court
for declaration of his title based on adverse possession or any other legal
right upon the land in reference.
5. Learned counsel for the petitioner has also submitted that the land
has not been properly demarcated before passing the eviction order.
6. During pendency of present petition, an affidavit dated 20.10.2018
had been filed by the petitioner, stating therein that he was ready and
willing to relinquish the encroached land in case he was found in
possession of land more than 5 bighas and that excess land had already
been surrendered by him.
.
7. From the material on record and the affidavit submitted by the
petitioner, it is apparent that the he is unauthorized possession of forest
land.
8. In view of the order to be passed herein after, grievance of the
petitioner with respect to demarcation would be redressed as the
concerned Authority, for proper identification of the land in reference, shall
have to demarcate the land in accordance with law.
9. As observed by this Court in its order dated 17.7.2024, passed in
CWP No. 1028 of 2002 and connected petitions including present petition,
adjudication of CWP No. 1028 of 2002 regarding validity of Section 163(A)
of the Himachal Pradesh Land Revenue Act, 1953 and Himachal Pradesh
Regulation and Encroachment (in certain cases) of Government Land and
Disposal of Government Land Rules, 2002, shall have no impact in the
present matter, because in the absence of approval of the Central
Government or for want of pendency of any request for such approval of
the Central Government, the forest land cannot be put to a use, which is a
non-forest purpose, as also has been defined and explained in Section 2 of
Forest Conservation Act, 1980, clarifying that breaking up or clearing of any
forest land or portion thereof for the cultivation of tea, coffee, spices,
rubber, palms, oil bearing plants, horticulture crops or medical plants and
even any purpose other than reafforestation, shall amount to using such
land for non-forest purpose.
.
10. After going through the record, impugned order and averments
made in the petition and also considering the submissions made by learned
counsel for the petitioner, we do not find any merit in the petition and
accordingly the same is dismissed.
11. Consequentially, concerned Revenue Officers, including Tehsildar
concerned and Forest Authorities, including DFO concerned, are directed to
identify the Government/forest land encroached by the petitioner properly
and take possession of the encroached Government/forest land by fixing
permanent boundary marks of the Government land on or before
31st August, 2024 and compliance affidavit with respect to taking of
possession on the spot, be filed by the concerned Divisional Forest Officer
on or before 30th October 2024.
12. The concerned authorities are also directed to remove other
encroachment(s) from the Government/Forest land detected/found on the
spot during demarcation/identification of the land in reference by taking
appropriate action in accordance with law in time bound manner, to the
maximum within six months from the date on which such encroachment is
found/detected.
13. Improvements/structures, if any, made on the encroached land shall
vest in the State of Himachal Pradesh/Department and shall be utilized by
the State/Department for its use. In case petitioner/encroacher intends to
take away the fixtures/building material/debris for his own use, he may opt
for that in writing, but in that eventuality he shall take away the material of
the structure before 15th December 2024 at his own cost.
.
14. It is made clear that in case petitioner/encroacher opts to take away
the fixtures/building material/debris for his own use, apart from movable
articles, it will not give him right to continue with the possession of the
encroached land and/or structure/ building raised on the said land. On
exercising such option, petitioner/encroacher has to remove entire material,
including debris, to hand over the vacant possession of the land and,
thereafter, he shall have to obtain No Objection/Clearance Certificate about
complete removal of everything from the spot whereupon illegal structure
had been raised.
15. In case, he removes fixtures/material only leaving behind the
debris/remains of the building on the spot, in the Government land, the
same shall be removed by the Department but on the expenses of the
petitioner/encroacher, and on failure to pay such costs/ expenditure, the
same shall be recovered from the petitioner/encroacher/successor-in-
interest as arrears of land revenue.
16. Aforesaid extended time is applicable to immovable but property,
but not to movable articles. However, in special circumstances, movable
articles may be taken within reasonable time, say 5 to 7 days, after initial
last date of vacation/taking over possession of the land/property.
17. Any dereliction in performing compliance of aforesaid direction or
laxity to remove encroachment from Government/Forest land shall be taken
.
seriously and consequential adverse action/proceedings shall ensue.
18. Entire aforesaid proceedings shall be video graphed and copy of
videography be placed on record with affidavit.
19. Learned Advocate General is directed to bring this order in the
notice of the Chief Secretary to the Government of Himachal Pradesh, for
ensuring timely compliance.
20. The petition is disposed of, so also pending application(s), if any, in
aforesaid terms.
List for compliance on 05th November, 2024.
(Vivek Singh Thakur),
Judge
(Bipin C. Negi),
Judge.
27th August, 2024
(tarun)
