Himachal Pradesh High Court
Date Of Decision: 10.9.2024 vs State Of H.P. & Another on 10 September, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:8915-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 272 of 2017
.
Date of decision: 10.9.2024
Sandoop. ...Petitioner.
Versus
State of H.P. & Another. ...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: None.
For the Respondents: Mr.Baldev Singh Negi, Additional Advocate
General.
Vivek Singh Thakur, Judge (Oral)
This matter is on Board since 4 th July, 2024, but till date despite
calling the matter repeatedly no one has come forward to represent the
petitioner, despite being represented by Advocate. However, in the interest of
justice, instead of dismissing the petition in default, the matter is being decided
on merits.
2. Petitioner, in present case, has assailed order dated 29.10.2016,
passed by the Divisional Commissioner, in Case No. 197 of 2016, titled as
Sandup Thakur Vs. State of H.P., whereby his eviction from the IIIrd Class
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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(UPF) forest land comprising Khasra 1245, measuring 0-17-0 bigha, out of
which 0-7 bigha is awadi, 0-9 bigha is ground/lawn and rest 0-1 bigha
.
comprises toilet and some plum trees, as directed vide order dated 3.6.2016,
passed by Collector-cum-Assistant Conservator of Forests, Parvati Forest
Division, District Kullu, H.P., in case No. 47/BTR/2006-07, has been affirmed.
3. The eviction proceedings were initiated under the H.P. Public
Premises and Land (Eviction and Rent Recovery) Act, 1971 (for short "PP
Act") by issuing Show Cause Notice under Section 4 of the PP Act on the
basis of challan presented by Range Officer, in pursuance to encroachment
case prepared by Revenue Officer.
4. In response to the notice, affidavit was filed on behalf of
petitioner, stating therein that land comprised in Khasra No. 1245 had been
purchased by his father during the year 1963 and, thus, he was owner of the
land and further that land was in peaceful possession of the petitioner. He
admitted construction of house, cowshed, bathroom, garage and store on the
disputed land and fencing done around the land in reference.
5. 14 Defence witnesses examined by the petitioner had made
common statement that disputed land was situated around Khasra No. 1245
and was in possession of petitioner and earlier it was in possession of his
father. But the petitioner could not produce any document or any conclusive
proof to substantiate his claim of ownership upon the land. In revenue record,
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land in reference has been recorded as "Ajbanjar bila paimuda", whereupon
orchard has been grown, construction has been made and ground/lawn has
.
been developed by the petitioner and land is IIIrd class (UPF) forest.
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.
7. After going through the record, impugned order and averments
made in the petition and also considering the submissions made by learned
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counsel for the petitioner, 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
30th 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 14th November, 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
that in writing, but in that eventuality he shall take away the material of the
structure before 30th December, 2024 at his own cost.
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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
12.
r to
complete removal of everything from the spot whereupon illegal structure had
been raised.
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 21st November, 2024.
(Vivek Singh Thakur),
Judge.
(Bipin C. Negi),
Judge.
10th September, 2024
(Keshav)
