Kirpa Ram vs State Of HP & Others

Vivek Singh Thakur, J

Petitioner, in the present case, has assailed order dated 15.12.2016, passed by the Divisional Commissioner, Shimla in case No.523 of 2016, titled Kirpa Ram vs. State of H.P.,whereby his eviction from the forest land, comprising Khasra No. 60/1 measuring 0-21-71 hac. Mauza Dheemi Tehsil Jubbal, District Shimla, HP, as directed vide order dated 11.07.2016 passed in case No. 581 of 2009 by Collector-cum-Divisional Forest Officer, Rohru, Forest Division at Rohru District Shimla HP. has been affirmed.

The petitioner had applied for regularization of the land in reference in the year 2002.

On the basis of report submitted by the Forest Guard, Range Forest Officer had filed the encroachment case before the Collector-cum-Divisional Forest Officer, Rohru, wherein show cause notice was issued under Section 4 of the Public Premises & land (Eviction & Rent Recovery) Act, 1971 (P.P. Act).

As per record, petitioner had defended himself personally by stating that he had sown agricultural crop and raised apple orchard over the encroached land and he was in possession since long and he did not agree to vacate the land voluntarily. The petitioner had also confessed before the Collector that he was in unauthorised possession of forest land. Evidence was also led on behalf of department.

It is submitted on behalf of the petitioner that he was not granted sufficient time to file a reply to the notice issued by the DFO-cum-Collector and, therefore, there is breach of Principles of Natural Justice (PNJ)

The eviction order was passed in the year 2016. Petitioner had preferred appeal against the said order in the year 2016 itself on various grounds, which was dismissed as referred (supra) on 15.12.2016, and thereafter petitioner has preferred present writ petition in May, 2017.

Even if petitioner was not given sufficient time by the Collector for filing reply, it is apparent from the record that he remained associated in the eviction proceedings and had admitted his possession on the land in reference with stand that he shall not vacate the possession from the land in reference.

In an appeal preferred before the Divisional Commissioner and also as argued by the learned counsel for the petitioner in present writ petition, it has been claimed that had the petitioner been given time to file reply, he would have set up the claim for adverse possession on the land on account of long possession and further that the land abutting to the land in reference belongs to the petitioner, which had been allotted to him under the Special Policy and that the land had not been identified properly by conducting a proper demarcation.

Learned counsel for the petitioner referring notification dated 18.04.2022 issued by the Department of Forest, Himachal Pradesh, has contended that there is proposal of Revenue Department to consider the Government lands other than lands declared as protected forest in surveyed (settled) area out of purview of Chapter IV of Indian Forest Act 1927. He has further submitted that a committee has been constituted by the Forest Department to examine the aforesaid proposal of Revenue Department. Learned counsel further contended that when the Revenue Department in Forest Department itself is considering to bring the land not falling in the Demarcated Protected Forest out of purview of the Indian Forest Act, therefore, present proceedings would not have been initiated against the petitioner and further in any case possession of the petitioners deserves to be protected on this count.

Alongwith the aforesaid notification, petitioner has also produced a letter dated 31st March, 2022, sent by Principal Secretary-cum-FC (Revenue) to the Additional Chief Secretary (Forest) to the Government of Himachal Pradesh, stating therein that since it is a forest land related issue, it would be difficult to take any decision by the departments without concurrence/permission of Government of India by raising the issue with Ministry of Environment and MoEF&CC, Government of India.

So far as long possession is concerned, it is settled that only long possession cannot entitle anyone to claim for continuing the unauthorized possession on any property including the forest land. The ingredients of adverse possession have neither been pleaded in appeal nor in petition. In any case, if the petitioner was claiming the right on the basis of adverse possession then remedy would have lied somewhere else but not under the P.P. Act.

12 So far as proposal of Revenue Department and constitution of Committee by the Forest Department, referred supra, are concerned, it does not give any right to any person to continue in unauthorized possession on Government/Forest land, as no such decision has been brought in our notice so as to entitle the petitioner to continue with unauthorized possessing on the forest land.

The grievance of the petitioner with respect to proper demarcation shall be redressed by the concerned authorities, for the order being passed hereinafter, as the concerned authorities are being directed to dispossess the encroachers after identifying the land properly and which would definitely ensue that there would be a proper demarcation of the government land for dispossessing the encroachers from it.

In view of the material on record, plea taken by the petitioner and confession made by the petitioner before the Collector, it is apparent that the petitioner is in unauthorized possession of the Forest land.

During the pendency of the appeal before the Divisional Commissioner, petitioner had made statement to offer to vacate the possession of the encroached land in case he was found in possession on the forest land after demarcation.

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.

Nothing has been placed on record before the DFO Collector and Divisional Commissioner to establish that land in reference was not the forest land, therefore, we do not find any illegality or infirmity in the conclusion arrived at by the Courts below that land in reference is forest land.

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 not find any merit in the present petition and accordingly the same is dismissed.

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 respect to taking of possession on the spot, be filed by the concerned Divisional Forest Officer on or before 30.10.2024.

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.

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.

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.

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.

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.

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.

Entire aforesaid proceedings shall be video graphed and copy of videography be placed on record with affidavit.

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 .