Himachal Pradesh High Court
Murtu Devi vs State Of Hp & Others on 2 September, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Date of Decision:02.09.2024
Murtu Devi
.....Petitioner.
Versus
State of HP & 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 Petitioner: Mr. Vinod Sharma, Advocate & Ms.
Mamta Bhatwan, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General,
with Mr. Pawan K. Nadda, Addl.
Advocate General.
Vivek Singh Thakur, Judge (oral).
Petitioner, in the present case, has assailed
order dated 15.12.2016, passed by the Divisional
Commissioner, Shimla in case No.238 of 2016, titled Murtu
Devi versus The State of H.P. through District Collector,
Shimla, HP. whereby his eviction from the forest land,
Whether reporters of Local Papers may be allowed to see the judgment?
2Neutral Citation No. ( 2024:HHC:8150-DB )
comprising in Khasra No.1086 measuring 0-94-94 hat Mauza
Giltari, The Jubbal, District Shimla H.P. as directed vide order
.
dated 29.3.2016 passed in case No. 1714 of 2016 by
Collector-cum-Divisional Forest Officer, Rohru, Forest Division
at Rohru District Shimla HP, has been affirmed.
2. As per available record petitioner had applied
for regularization of the land encroached by him and his case
was submitted by the revenue authority to the office of DFO
for regularization since the land belonged for forest
department, case was processed against the petitioner for
unauthorized occupation of government/forest land in
reference. During pendency before the DFO. petitioner had
confessed the unauthorized occupation. Otherwise also,
application filed for regularization of un-authorized
occupation indicates that there is admission on the part of
petitioner in this regard.
3. During pendency of the petition, petitioner had
filed affidavit dated 5.5.2017, admitting the encroachment
with undertaking that she was willing to relinquish the
encroachment in favour of State Government, in case she
was found in possession of more than 5 bighas.
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4. It has been submitted on behalf of the petitioner
that demarcation of the land has not been conducted
.
properly.
5. From the material on record, confession made
before the Collector-cum-DFO and affidavit filed during
pendency of the present petition, it is apparent that petitioner
is in unauthorised possession of the forest land.
6. In view of the order to be passed hereinafter,
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.
7. 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
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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.
8. Taking into consideration the material on record,
going through the impugned order and also the statements
made by the petitioner before the concerned authority, we do
not find any merit in the present petition and accordingly the
same is dismissed.
9. 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 15.10.2024 and compliance affidavit with
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respect to taking of possession on the spot, be filed by the
concerned Divisional Forest Officer on or before 30.10.2024.
.
10. 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.
11. 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 15.12.2024 at his own cost.
12. 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
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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.
13. 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.
14. 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.
15. 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.
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16. Entire aforesaid proceedings shall be video
graphed and copy of videography be placed on record with
.
affidavit.
17. 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 05.11.2024.
(Vivek Singh Thakur)
Judge
(Bipin Chander Negi)
Judge
2nd September, 2024
(veena).
