Himachal Pradesh High Court
Date Of Decision: 4.9.2024 vs State Of H.P. & Others on 4 September, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:8499
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1676 of 2023
.
Date of decision: 4.9.2024
Raghubir Singh & others. ...Petitioners.
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 Petitioners: Mr.Vinod Sharma and Ms.Mamta K. Bhatwan,
Advocate.
For the Respondents: Mr.Anup Rattan, Advocate General, alongwith
Mr.Pawan K. Nadda, Additional Advocate
General.
Vivek Singh Thakur, Judge (Oral)
Petitioner has approached this Court assailing order dated
9.11.2022 passed by Collector-cum-Divisional Forest Officer, Rohru in case
No. 23 of 2021, titled as State of H.P. Vs. Raghuvir Singh and others, whereby
Collector had directed immediate vacation of land comprised in Khasra No.
45/1, measuring 03-70-14 hectares, recorded as Jungal Mehfooza Mehdooda
i.e. Demarcated Protected Forests and in ownership of Government and land
comprised in Khasra No. 314 and 317, measuring 00-20-73 hectares, situate
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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in C. No.3 DPF Jakhi and UPF Giltari, Tehsil Jubbal, District Shimla, H.P., and
order dated 29.3.2023 issued by Deputy Conservator of Forests, whereby
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petitioners have been directed to be dispossessed from the aforesaid land
within 15 days from the issuance of order.
2. After going through the impugned order, it is apparent that
petitioners, on the basis of documentary as well as oral evidence, were found
to be in unauthorized occupation of the Government land in Chack No. 3 of
DPF Jakhi comprising Khasra No. 45/1 measuring 03-70-24 hectares and in
UPF Giltari Mohal Giltari land comprising Khasra No. 314 and 317 measuring
00-20-73 hectares.
3. Petitioners have not assailed the aforesaid order which was
passed on 9.11.2022 within limitation period available with them, before the
Divisional Commissioner/Appellate Authority.
4. Present petition has been preferred on 31.3.2023, wherein
referring the Policy of the State, it has been averred that petitioners are
owning less than 10 bighas of land and they are ready and wiling to surrender
encroached land in excess of 5 bighas and further that they are not having
more than 10 bighas of land and thus are entitled for 5 bighas of land for
cultivation or for orchard etc. Nothing on record has been placed to justify the
possession of the petitioners on the Government/Forest land, except by
stating that they are in possession since long.
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5. It is a case where the petitioners have admitted their
unauthorised possession on the Government/Forest land, but have failed to
.
establish their entitlement to have such possession on the said Forest land
and, therefore, we do not find any merit in the grounds averred in the petition
for setting aside the impugned eviction order passed by the Collector.
6. 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.
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7. After going through the record, impugned order and averments
made in the petition and also considering the submissions made by learned
.
counsel for the petitioners, we do not find any merit in the petition and
accordingly the same is dismissed.
8. 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
15th October, 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.
9. 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.
10. 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
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that in writing, but in that eventuality he shall take away the material of the
structure before 15th December, 2024 at his own cost.
.
11. 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.
12. 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.
13. 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.
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14. 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.
15. Entire aforesaid proceedings shall be video graphed and copy of
videography be placed on record with affidavit.
16. 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.
The petition is disposed of, so also pending application(s), if any,
in aforesaid terms.
List for compliance on 5th November, 2024.
(Vivek Singh Thakur),
Judge.
(Bipin C. Negi),
Judge.
4th September, 2024
(Keshav)
