Himachal Pradesh High Court

Date Of Decision: October 3 vs State Of H.P. & Others on 3 October, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

                                          1                              ( 2024:HHC:9696 )



    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                 CWP No.1596 of 2019
                                 Date of Decision: October 3, 2024


Guman Singh                                                               ...Petitioner.

                                          Versus

State of H.P. & others                                                 ..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 Petitioners:              Mr.Vinod Sharma & Ms.Mamta Bhatwan,
                                  Advocates,   vice  Mr.B.N.  Sharma,
                                  Advocate.

For the Respondents:              Mr.Baldev   Singh                 Negi,           Additional
                                  Advocate General.

Vivek Singh Thakur, J (Oral)

Petitioner, in the present case, has assailed order

dated 01.11.2018, passed by the Divisional Commissioner,

Shimla Division, Shimla, H.P., in Appeal No.21 of 2017, titled as

Guman Singh vs. State of H.P. & another, whereby his eviction

from Mauja U.F. Mandal, in Khasra Nos.1691 and 1692,

measuring 0-75-50 hectare, Tehsil Jubbal, District Shimla, H.P.,

as directed vide order dated 20.12.2016, passed by Collector-

cum-Divisional Forest Officer, Rohru Forest Division, Rohru,

District Shimla, H.P., in Case No.1735 of 2016, titled as State of

H.P. vs. Guman Singh, has been affirmed.

Whether reporters of the local papers may be allowed to see the judgment?

2 ( 2024:HHC:9696 )

2. As per record petitioner had applied for

regularization of his encroachment on the forest land by filing an

application to the Revenue Authorities. Since the land in

question was forest land, therefore, challan against the petitioner

was presented before the Collector-cum-DFO for removal of

unauthorized occupation of the Government/forest land.

3. Earlier order dated 30.03.2016 was passed by the

Collector directing eviction of the petitioner from the land in

reference which was assailed by the petitioner by filing Appeal

No.307 of 2016, titled as Guman Singh vs. The Collector-cum-

Divisional Forest Officer, before the Divisional Commissioner,

Shimla Division. The said appeal was allowed on 21.09.2016 and

case was remanded to the DFO for deciding afresh.

4. Thereafter, proceedings were decided afresh by the

Collector by passing order dated 20.12.2016. The said order was

assailed by the petitioner unsuccessfully in Appeal No.21 of

2017. Thereafter, petitioner has preferred the present petition.

5. As per record, petitioner himself had applied for

regularization of encroachment upon the land in reference.

Therefore, it is an admitted fact that petitioner is in unauthorized

occupation of Government/forest land.

6. It is contended on behalf of the petitioner that no

proper demarcation was conducted for removal of his

encroachment from the land in reference.

7. Grievance of the petitioner with respect to

demarcation shall be redressed by the concerned authorities, for 3 ( 2024:HHC:9696 )

the order being passed hereinafter, as the concerned authorities

are being directed to dispossess the encroacher(s) after

identifying the land properly and which entails that there would

be a proper demarcation of the land before dispossessing the

encroachers from it.

8. 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 for 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, clarify 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.

9. Taking into consideration the material on record,

going through the impugned order and also the statements

made by the petitioners before the concerned authority, we do 4 ( 2024:HHC:9696 )

not find any merit in the present petition and, accordingly, the

same is dismissed.

10. 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

21.11.2024 and compliance affidavit with respect to taking of

possession on the spot, be filed by the concerned Divisional

Forest Officer on or before 28.11.2024.

11. The concerned authorities are also directed to

remove other encroachment(s) from the Government/Forest land

detected/ found on the spot during demarcation/identification on

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.

12. 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 petitioners/encroachers intend to take away the

fixtures/ building material/debris for their own use, they may opt

for that in writing, but in that eventuality they shall take away

the material of the structure before 21.01.2025 at their own cost.

5 ( 2024:HHC:9696 )

13. 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 has been raised.

14. 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.

15. Aforesaid extended time is applicable to immovable

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.

16. 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.

6 ( 2024:HHC:9696 )

17. Entire aforesaid proceedings shall be videographed

and copy of videography be placed on record with compliance

affidavit.

18. 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 05.12.2024.

(Vivek Singh Thakur), Judge.

(Bipin Chander Negi), Judge.

October 3, 2024 (Purohit)

SUBHASH DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU= HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3418061207364d8c002725dfc58ff116f678c3d39289db29b992cc e875905119, PostalCode=171001, S=Himachal Pradesh,

CHAND SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10edc4e6cd2ed5d4 a8c30134c1b, CN=SUBHASH CHAND DHIMAN Reason: I am the author of this document

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