Himachal Pradesh High Court
Cwp No.1649/2018 vs State Of Hp & Ors on 29 July, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:6776
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.1649/2018.
Date of Decision:.29.07.2024
.
Pardeep Singh .....Petitioner
Versus
State of HP & Ors. .....Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. Vikrant Thakur, Advocate.
For the Respondents: Mr. Baldev Singh Negi, Addl. Advocate
r General.
Vivek Singh Thakur, Judge (oral).
Petitioner has approached this Court for following
substantive reliefs:-
i. That writ in the nature of mandamus
may kindly be issued to the respondents
not to evict the petitioner from his
agricultural land in Khasra No.39.
ii. That writ in the nature of mandamus
may kindly be issued to the respondents
to issue the present petitioner a fresh
show cause notice being a legal heir of
late Sh. Mast Ram.
2. Along with the present petition, copy of order dated
21.03.2018, passed by Collector-cum-Divisional Forest officer in
case No.61/Ch/2015-16, titled State of HP Vs. Kuldeep Singh, has
been placed on record, whereby exercising the power under HP
Public Premises and Land (Eviction and Rent Recovery) Act, 1971,
Whether reporters of Local Papers may be allowed to see the judgment?
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Collector-cum-Divisional Forest Officer has ordered to evict Sh.
Kuldeep Singh s/o Sh. Mast Ram, r/o Village Ghareen Pag. Punder,
.
Tehsil Chopal, District Shimla, HP and all persons from the Forest
Land comprised in Khata/Khatoni No.110/121 min khasra Nos.36,
39, 42, 43, 45, 58, 303, 304, 305, 613 and 629, measuring 02-75-
50 hectares in UPF Marog.
3. It has been argued on behalf of the petitioner that land
referred in the order of Collector was in unauthorized occupation of
Mast Ram, who was father of Kuldeep Singh as well as petitioner-
Pradeep Singh, and in the first round of proceedings initiated on
19.11.20015, order of eviction dated 23.03.2016 was passed
against Mast Ram, who had already expired before passing of the
said order.
4.
In Appeal No.144 of 2016, preferred by Kuldeep Singh
(brother of the petitioner). Divisional Commissioner vide order
dated 15.09.2016 had remanded the case back to the Collector for
passing an order afresh.
5. Thereafter, Kuldeep Singh joined the proceedings before
the Collector and submitted in writing that he was in possession of
Khasra Nos.36, 39, 42, 43, 45, 58, 303, 304, 305, 613 and 629
measuring 02-72-50 hectares in UPF Marog which was demarcated
in his presence. He had further submitted that in sequel to order
dated 20.12.2017 passed by the High Court in CWPIL No.17/14,
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he had retained possession on 5 bigha of land out of the aforesaid
encroached land and rest of the land measuring 2-34-90 hectare
.
had been handed over by him to the Forest Department and he
would not make any kind of interference in the surrendered forest
land. In his inviting submissions Kuldeep Singh had retained
possession up Khasra No.39.
6. On the basis of material available before him including
admissions and submissions of Kuldeep Singh, Collector(DFO) had
passed Eviction Order dated 21.03.2018.
7.
There is nothing on record to indicate that order of eviction
dated 21.03.2018 was ever assailed by Kuldeep Singh or Pradeep
Singh.
8. Now, petitioner is claiming that the above referred land,
comprising in khasra No.39, was not in possession of Kuldeep Singh
but in possession of the petitioner(Pradeep Singh) as the families of
both brother i.e. Kuldeep Singh and Pradeep Singh, had separated
in the year 2013 before death of their father-Mast Ram on
16.07.2014 and there are no proceedings initiated or conducted
against petitioner-Pradeep Singh. Further that despite request of
Pradeep Singh (Petitioner) to issue notice to him, no notice was
issued by Collector to him whereas he was and is also owning and
possessing the land in reference. Therefore, it has been submitted
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that the eviction order passed by the Collector deserves to be set
aside.
.
9. It is apt to record that after passing of the eviction order
against late Sh. Mast Ram, his son Kuldeep Singh had come
forward claiming that he was in possession of the above referred
forest land, whereas Pradeep Singh never came forward claiming
his possession on the aforesaid land. Had he been in possession of
the aforesaid land, definitely he would have been aggrieved by the
order of eviction passed against late Mast Ram in the first round of
litigation. It is also apt to record that, as evident from prayer of
present petitioner, petitioner has not even assailed order of eviction
dated 21.03.2018 in present petition rather he has prayed for
direction to respondents not to evict him from Khasra No.39.
10.
Petitioner has prayed for protection from eviction from the
agricultural land comprising Khasra No.39 only but not from the
other Khasra Nos. referred in the eviction order dated 21.03.2018
as well as in the pleadings of the writ petition.
11. It is also noticeable that at the time of demarcation, which
was admitted by Kuldeep Singh to be correct, Pradeep Singh or any
other family members never came forward to register their claim
regarding possession upon the aforesaid land. Either Pradeep
Singh or his family members were playing hide and seek in order to
avoid the eviction order against them by name or they were
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deliberately preferring back seat driving keeping Kuldeep Singh in
front in the litigation. In both the situations and also for the prayer
.
made in the petition, petitioner has no right to pray for setting
aside the eviction order dated 21.03.2018 passed against Kuldeep
Singh and all persons along with him found in possession of above
referred land.
12. Otherwise also petitioner is claiming that notice for eviction
was required to be issued to both sons of late Mast Ram being his
legal heirs. Admittedly, Kuldeep Singh is brother of Pradeep Sigh
and separation of family does not mean that land in occupation of
their father Mast Ram was also partitioned. Otherwise also,
Pradeep Singh and Kuldeep Singh, both are asserting and praying
for protection of possession on Khasra No.39. Therefore, Kuldeep
Singh and Pradeep Singh, at the most are having status of joint
possession of the aforesaid land after the death of his father late
Mast Ram, which may be equated to status of joint owner. Firstly,
such claim was never asserted by the petitioner before or after
passing of eviction order in the first round or even thereafter at any
time, when proceedings were again conducted by the Collector,
joining Kuldeep Singh in the proceedings, who had expressed his
interest and right in the aforesaid land by filing appeal before the
Divisional Commissioner. In any case, even if petitioner is
considered to be joint owner with Kuldeep Singh, then also he is
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bound to vacate the forest land on account of order passed in the
proceedings contested by his real brother, particularly when the
.
undertaking and statement given by Kuldeep Singh have never
been challenged by Pradeep Singh (petitioner) during the
proceedings or otherwise.
13. In reply filed to the petition, State has placed on record
revenue record wherein Khasra No.39 has been recorded as
Charagah Billa Darktan in Jamabandi Misal Haquiat for the year
2010-11, whereas petitioner is claiming it to be an agricultural land
in his possession. Nothing has been placed on record to rebut the
aforesaid revenue entry with respect to nature of land to which a
presumption of truth is attached.
14. It is settled principle of law that when a joint owner dies,
his interest can be represented only by his own legal
representations and not by other surviving owners. It is not
necessary to implead every owner in the proceedings particularly
when others are in the knowledge of the proceedings pending
before the Court/Authority. In present case, petitioner is none else
but the real brother of Kuldeep Singh, claiming his possession on
the same property upon which Kuldeep Singh was claiming his
possession. (See: 1992 (1) Shm. L.C. 28, paragraph-7, also
See: ILR 1978 HP 158 (DB)
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15. It has been stated in reply that in view of direction of this
High Court in 20.12.2017, 5 bigha land was allowed to be retained.
.
This action of respondents is misconceived. Petitioner as well as
Kuldeep Singh along with others, who may be found in possession
of Govt/Forest land, are liable to be evicted from such entire land.
16. As observed by this Court in its order dated 17.07.2024,
passed in CWP No.1028 of 2002 and connected petitions including
present petition, adjudication of CWP No.1028/2002 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 of portion thereof for the
cultivation of tea, coffee, spices, rubber, palms, oil bearing plants,
horticulture crops or medicinal plants and even any purpose other
than reafforestation, shall amount to using such land for non-forest
purpose.
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17. Taking into consideration the material on record, we do not
find any merits in the petition and thus Kuldeep Singh as well as
.
other persons including the petitioner, who are in possession of
forest land preferred supra are liable to be evicted from the same
accordingly the same is dismissed.
18. Consequently, 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 16.09.2024 and
compliance affidavit with respect to taking of possession on the
spot, be filed by the concerned Divisional Forest Officer on or
before 30.09.2024.
19. 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.
20. 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
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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 15.11.2024 at his own cost.
21. Any dereliction in performing compliance of aforesaid
direction or laxity to remove encroachment from
Government/Forest land shall be taken seriously and consequential
22. to
adverse action/proceedings shall ensue.
Entire aforesaid proceedings shall be video graphed and
copy of videography be placed on record with affidavit.
23. 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.
Petition is disposed of in aforesaid terms along with
pending application(s), if any.
List for compliance on 30.09.2024.
(Vivek Singh Thakur)
Judge
(Bipin Chander Negi)
Judge
29th July, 2024
(Gaurav Rawat)
