Rajiv vs State of H.P. & Another

,

Vivek Singh Thakur, J",

These petitions, for involvement of common questions of law and facts to be appreciated for adjudication, are being decided by this common",

judgment.,

2 Petitioners namely Rajiv (petitioner in CWP No. 179 of 2017), Mukesh Kumar ( petitioner in CWP No. 180 of 2017) and Harish Kumar (petitioner",

in CWP No. 190 of 2017) are real brothers being sons of Joginder Singh.,

3 Separate proceedings against Joginder Singh for his eviction from forest land were also initiated and he had preferred CWP No.181 of 2017.,

However, after his death, during pendency of petition, none of his legal heirs, including the present petitioners, came forward and accordingly, the said",

writ petition was disposed of on 20th August, 2024.",

4 Petitioner Harish Kumar was also facing another eviction order against him to remove his unauthorized occupation from the forest land, against",

which petitioner Harish Kumar had preferred CWP No. 192 of 2017. The said writ petition has been dismissed on the basis of submissions made on,

behalf of Harish Kumar that area, referred in said eviction order, had already been vacated/surrendered to the Government by petitioner Harish",

Kumar.,

5 From the record, it appears that in another case No. 1677 of 2016 titled as State of HP vs. Mukesh, proceedings for eviction of Mukesh Kumar",

from the forest land, comprised in Khasra Nos. 36, 38, 591/11/1, measuring 0-48-84 hectares, situate in Mauza Bhali, Tehsil Rohru, District Shimla",

H.P., were initiated and eviction order therein was passed on 28.3.2016. Against the said order, Mukesh Kumar had preferred Appeal No.169 of 2016",

before the Divisional Commissioner, Shimla Division, Shimla on 21.4.2016. The said appeal was dismissed on 24.10.2016. In case, the said eviction",

order has not been assailed and no proceedings, including Writ Petition are pending adjudication with respect to said land, Mukesh Kumar is also liable",

to be evicted from the said land also, as per time schedule being directed for the said purpose herein-after in these petitions.",

CWP No. 179 of 2017 titled Rajiv vs. State of HP,

6 Petitioner, in present case, has assailed order dated 24.10.2016, passed by the Divisional Commissioner, Shimla in case No. 172 of 2016, titled as",

Rajiv Vs. The Collector-cum-DFO, whereby his eviction from the Government/Forest land in DPF/UPFs C.No.57, 60 in Khasra No. 124/1, 139/1,",

140, 141, 168, 170, 171 measuring 01-05-42 hectares situated in Mauja Chillala, Tehsil Chirgaon, District Shimla HP, as directed vide order dated",

28.3.2016 passed in Case No. 1691 of 2016, by Collector-cum-Divisional Forest Officer, Rohru, District Shimla, H.P., has been affirmed.",

CWP No. 180 of 2017 titled Mukesh Kumar vs. State of HP,

7 Petitioner, in present case, has assailed order dated 24.10.2016, passed by the Divisional Commissioner, Shimla in case No. 170 of 2016, titled as",

Mukesh Vs. The Collector- cum- DFO, whereby his eviction from the Government/Forest land in Khasra Nos. 148, 146, 152 measuring area 0-77-89",

hect., situated in Mauja Chillala, Tehsil Chirgaon, District Shimla HP, as directed vide order dated 28.3.2016 passed in Case No. 1681 of 2016, by",

Collector-cum-Divisional Forest Officer, Rohru, District Shimla, H.P., has been affirmed.",

CWP No. 190 of 2017 titled Harish Kumar vs. State of HP,

8 Petitioner, in present case, has assailed order dated 24.10.2016, passed by the Divisional Commissioner, Shimla in case No.168 of 2016, titled as",

Harish Vs. The Collector-cum-DFO, whereby his eviction from the Government/Forest land comprised Khasra No. 159, 161, 164 measuring area 0-",

91-48 hect., situated in Mauja Chillala, Tehsil Chirgaon, District Shimla HP, as directed vide order dated 28.3.2016, passed in Case No. 1682 of 2016,",

by Collector-cum-Divisional Forest Officer, Rohru, District Shimla, H.P., has been affirmed.",

CWP Nos. 179, 180 and 190 of 2017",

9 In these matters, proceedings by the Collector-cum-Divisional Forest Officer, Rohru were initiated against petitioners for removal of",

encroachment from the Forest land on the basis of challan presented by the Range Forest Officer, Khashadar, District Shimla under H.P. Public",

Premises and Land (Eviction & Rent Recovery) Act, 1971 (in short ‘PP Act’).",

10 It is also matter of record that on filing application by petitioners the encroachment cases were submitted by the Revenue Authorities to the Office,

of Collector- cum- Divisional Forest Officer, for regularization because land, in reference, belonged to the Forest Department. Therefore, challan",

against the petitioner(s) for unauthorized occupation of Government/Forest land was presented before the Collector-cum-Divisional Forest Officer.,

11 On initiation of eviction proceedings, separate notices under Section 4 of PP Act were issued to petitioners. In response thereto, petitioner(s) had",

filed detailed reply(ies) stating therein that proceedings under PP Act could not have been initiated because criminal proceedings against them under,

Sections 447, 434, 120 IPC and Sections 32 and 33 of Indian Forest Act were pending before the Judicial Magistrate at Rohru, for registration of FIR",

against them by the Forest Department’s Officers, and also for the reason that damage reports had already been prepared in the name of Joginder",

Singh (father of petitioners) on 17.06.2006 and 03.07.2008.,

12 It has been further stated in reply that Missals Nos. 12 and 13 for encroachment had been prepared during the settlement operation because land,

comprised in Khasra Nos. 140, 141, 148, 152, 154, 161, 164, 170 and 171 had been verified and measured by the Agency at that time and therefore,",

for removal of encroachment, only Settlement Collector of the District could have proceeded against them. It has been alleged that petitioners were",

not associated in demarcation proceedings.,

13 In reply as well as during proceedings, petitioners confessed their possession on the respective pieces of Forest land, in reference, in the respective",

cases. They have claimed the possession upon the land since very long time.,

14 Learned counsel for petitioner(s) has submitted that challan/notice issued to petitioner(s) in proceedings under PP Act recorded by the Collector,

does not speak about any opinion of Collector formed before issuing notice under Section 4 of PP Act and therefore, entire proceedings have been",

vitiated.,

15 To substantiate his claim, he has placed reliance upon the judgment in Ravinder Singh & others vs. State of HP & others reported in Latest",

HLJ 2004(HP) 935. He has submitted that though satisfaction has been recorded only in the notice, but there is no material on record before the",

Collector for forming such opinion.,

16 Original record has been produced by the respondents/State. In the record, in all cases, challans were presented by the Range Officer along with",

documents. Along with challan, damage reports with respect to unauthorized occupation of forest land prepared by the Forest Officer/officials dated",

3.7.2007, 3.7.2008, 8.8.2008, 4.8.2008, 5.8.2008 and 6.8.2008, tatima, report of Patwari and application(s) filed by petitioners for regularization along",

with jamabandis were also available with Divisional Forest Officer before forming the opinion for issuing the notices and in the notices issued under,

Section 4 of PP Act, Divisional Forest Officer had recorded that he was of the opinion for the grounds stated below the petitioners were in",

unauthorized occupation of the public premises mentioned in Schedule. In the grounds, the Khasra Numbers, with respect to which petitioners have",

submitted the application(s) for regularization and regarding which damage reports were prepared by the Forest Officer, have been mentioned clearly",

with the statement that illegal encroachment as pointed out by the Range Forest Officer was basis for forming the opinion and petitioners were asked,

to show cause that as to why they should not be evicted from the land in reference.,

17 In Ravinder Singh’s case the facts were entirely different as evident from the following paras of said judgment:-,

“8. A bare perusal of the provisions contained in Section 4(1) of the Act, quoted above, shows that before ordering the issuance of notice to show cause, the",

Collector has to form an opinion that the persons(s) to whom the notice (s) are to be issued is/are is unauthorized occupation of public premises situated within his,

jurisdiction and he/they should be evicted.,

A perusal of the record shows that on a petition having been laid between the collector for the eviction of the petitioners No.2 to 4, the Collector on 6.9.1986 had",

called for the office report in the following terms:,

“Presented today by Distt. Welfare Officer, Hamirpur, a case under Public Premises Act, kept for office report. Ahlmad to give detail also whether the court has",

power under the said Act or not. After office report the case to be come up for further proceedings on 16.9.86â€​,

The requisite report was made by the office on 15.9.1986 and the case was taken up on 17.9.1986 when the Collector directed the issuance of notices by an order,",

which reads:,

“Case taken up today instead of 16.9.1986. Supdt. on behalf of District Welfare Officer, Hamirpur. The respondents be summoned on payment of P.F. and the case",

to come up on 4.11.86.â€​,

From the two orders dated 6.9.1986 and 17.9.1986, quoted above, it is apparent that while directing the issuance of notices to the petitioners No.2 to 4 under",

Section 4 of the Act, the Collector had failed to form an opinion or record its satisfaction that such petitioners were in unauthorized occupation of public premises",

and that they should be evicted. …..,

Therefore, on the failure of the Collector to form an opinion or to record his satisfaction that petitioners No.2 to 4 are in unauthorized occupation of public",

premises and that they should be evicted therefrom, the notices issued under Section 4 of the Act are bad thereby the entire proceedings stood vitiated.â€​",

18 Contrary to the facts of Ravinder Singh’s case, in present case, there is a challan presented by the Range Forest Officer before the Collector",

along with documents, referred supra, including the application(s) filed by the petitioners for regularization of their encroachment upon land in",

reference and the identity of land in unauthorized occupation of each petitioner was specifically mentioned in the notice.,

19 It is also noticeable that after receiving the notices, petitioners had filed reply(ies) to notices stating the facts related to land and claiming their right",

thereon in detail. Therefore, it is not a case where the Collector had no material before him to form the opinion and no details of premises were given",

in notices or petitioners were not able to know about the subject matter of eviction proceedings or wherefrom notices were issued against them.,

20 In present case, there is more than sufficient material to form the opinion by the Collector for issuing the notice under Section 4 of PP Act and",

notice contains the entire sufficient detail with respect to forming the opinion as well as details of land in unauthorized occupation of petitioners.,

Therefore, judgment in Ravinder Singh’s case is of no help to petitioners.",

21 It has been contended on behalf of petitioners that confession/concession recorded on behalf of petitioners is of no value because oral consent,",

assent or admission of land owners or occupants is not known to law and therefore, not admissible and, thus such consent/assent/admission cannot be",

made the basis for evicting the occupants. To substantiate this claim, reliance has been placed on judgment dated 28th June, 2023 passed in CWP No.",

7710 of 2021 titled Balwant Singh vs. Sate of HP, wherein Division Bench of this High Court had allowed the petition filed seeking direction to",

acquire the land by State for utilizing the same for public purpose on the ground that there is no concept of oral consent for taking and utilizing the land,

of citizen.,

22 Referring judgment of the Supreme Court in Sukh Dutt Ratra vs. State of HP and others, reported in (2022)7 SCC 508, especially para",

22 thereof, it has been contended that absence of written consent to voluntarily give up the land in possession, on the basis of oral confession,",

petitioners could not have been deemed to have consented for his ejectment from the land in reference and therefore, the fact with respect to",

confession/concession recorded by Collector is not only known to law but also legally impermissible. It has been contended that the Supreme Court,

has rejected the contention of oral consent to be baseless and responsibility of the State has been outlined to prove its case on the basis of written,

document.,

23 The aforesaid plea on behalf of petitioners is misconceived because in Balwant Singh’s case and in Sukh Dutt Ratra’s case issue involved,

was regarding the consent by owner for voluntarily giving up the title upon the land by surrendering the same to the State for utilization for public,

purpose and in those cases, the land owners were being deprived from the property without any written consent on record and in that context it was",

observed that there was and is need for written consent in matters of land acquisition proceedings. Whereas, in present matters, issued involved is",

unauthorized possession on the Government/forest land and admission of such unauthorized possession by the possessors including the petitioners.,

Thus, aforesaid judgments are of no help to the petitioners.",

24 The aforesaid plea of petitioners is also not sustainable because in present case, the confession is not a concession recorded on the basis of oral",

deposition but there are applications filed by petitioners for regularization of their encroachment on the land under reference, and, therefore, it is wrong",

to say that confession recorded by Divisional Forest Officer is based on oral submissions. The confession or admission of unauthorized occupation is,

based upon applications submitted by petitioners.,

25 In present petitions also, petitioners are claiming right on the land in reference by admitting their possession thereon but without having any material",

to substantiate their right, title or interest in the same.",

26 It has been contended on behalf of petitioners that as, for long standing adverse possession, petitioners were claiming title over the land in",

reference and there is no provision for determining the said question of title raised during the proceedings under PP Act, therefore, the eviction",

proceedings, if at all are/were maintainable, would have been initiated under Section 163 of HP Land Revenue Act 1971 (HPLR) so as to enable the",

petitioners to raise the question of title before the concerned Revenue Officer for determination of their ownership right thereon by way of adverse,

possession. Therefore, it has been contended that a valuable right of the petitioners to defend their possession on the basis of acquired title has been",

deprived on account of initiation of eviction process under PP Act.,

27 Learned counsel for the petitioners has also submitted that benefit in terms of judgment of a Division Bench of this High Court in case titled,

Chamaru Ram vs. Additional Commissioner (Appeal) & others, decided on 7.3.2002 in CWP No. 1207 of 2001, reported in Latest HLJ 2002",

(HP) 466, be extended to the petitioners whereby the encroacher therein was granted six weeks time to initiate appropriate proceedings to prove his",

title over the land encroached by him.,

28 In Chamaru Ram’s case, judgment of the Supreme Court inS tate of Rajasthan v. Harphool Singh (dead) through his LRs, (2000) 5 SCC",

652, and pronouncement of a Division Bench of this High Court in Kaka Ram alias Ram Lal v. The Financial Commissioner, H.P. and others,",

ILR 1984 HP 8, have been referred.",

29 In Harphool Singh’s case, the Supreme Court has observed as under:",

“11. The learned Counsel for the appellant strongly relied upon Sections 22 and Section 25 of the Act to contend that the order passed by the A.D.M. in exercise,

of his powers under Section 22 of the Act has become final and the jurisdiction of the Civil Court stand ousted in respect of such matters by virtue of Section 25 and,

therefore the suit could not have been entertained at all by the Civil Court. Section 25 of the Act stipulates that a Civil Court shall not have jurisdiction in any matter,

which the Collector is empowered by that Act to dispose of and shall not take cognisance of the matter in which the State Government or Collector or any officer,

exercises any power vested in it or in him by or under the said Act. Section 22 provides for a summary eviction of any person who occupies or continues to occupy,

any land in a colony to which he has no right or title or without lawful authority by treating such person as a trespasser in the manner and after following the,

procedure prescribed therefor. Reliance has been placed by the respondents on the decisions reported in Abdul Waheed Khan v. Bhawani and Ors. {(1966) 3 SCR,

617 : AIR 1966 SC 1718} ; and Firm of Illuri Subbayya Chetty & Sons v. The State of A.P. {AIR 1964 SC 322: (1964) 1 SCR 352} to substantiate his claim that the bar of,

suit will not be attracted to a case of this nature. In our view, the principles laid down in Abdul Waheed Khan's case (supra) while considering a provision like the",

one before us, that the bar is with reference to any matter which a Revenue Officer is empowered by the Act to determine and the question of title is foreign to the",

scope of proceedings under the Act, would apply to this case also with all force, that is on the provisions of Section 25 of the Act, as it stands. Even that apart in",

State of Tamil Nadu v. Ramalinga Samigal Madam {AIR 1986 SC 794} this Court, after adverting to Dhulabhai v. State of M.P. case {AIR 1969 SC 78 : (1968) SCR 662}",

held that questions relating to disputed claims of parties for title to an immovable property could be decided only by the competent Civil Court and that in the,

absence of a machinery in the special enactment to determine disputes relating to title between two rival claimants, the jurisdiction of the Civil Court cannot be said to",

have been ousted. In the case on hand, a citizen is asserting a claim of acquisition of title by adverse possession in derogation of the rights and interests of the State",

in the property in question. In our view, determination of such claims are not only outside the purview of Section 22 which only provide for a summary mode of",

eviction but in respect of such disputes relating to title to immovable property the jurisdiction of ordinary civil courts to adjudicate them cannot be said to have been,

ousted. The powers and procedure under Section 22 of the Act, in our view, is no substitute for the civil courts jurisdiction and powers to try and adjudicate disputes",

of title relating to immovable property.â€​,

30 In Kaka Ram’s case, Division Bench of this High Court has observed as under:",

“5. Mr. Chhabil Dass, learned counsel appearing on behalf of the petitioner, however, urged that no civil suit lies having regard to the provisions of Section 163",

read with Section 171, Himachal Pradesh Land Revenue Act, 1953. The submission, in our opinion, is ill-founded. The opening words of Section 163 clearly indicate",

that before any action could be taken thereunder, the land in question should be Government land or land which has been reserved for the site of a village or for the",

common purpose of the co-sharers therein. Therefore, there should be no dispute on the question of title before an action is initiated under Section 163. If there is a",

dispute, then the dispute will have to be first resolved by a court of competent jurisdiction, especially if the dispute is of a serious nature and then only the power",

under Section 163 of the Act can be legitimately exercised. Section 171, which creates a bar on the jurisdiction of the civil courts, has to be read in the light of this",

legal position. Section 171, Sub-section (2), Clause (xxv) relates to an order of ejectment passed pursuant to the valid exercise of the powers under Section 163, If a",

revenue authority acting under Section 163 determines the question of title when it is seriously in dispute between the parties and consequently passes orders in the,

purported exercise of the power under the said section, such a determination would not oust the jurisdiction of the civil courts. It is well settled that even if the",

statute gives finality to the orders of special tribunals, such a provision does not exclude those cases where the provisions of the particular Act have not been",

complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.,

Under the circumstances, in a case like the present, the jurisdiction of the civil court to entertain the suit for clearing the cloud, if any, created on the title, if any, of",

the petitioner to the disputed land, is not barred.â€​",

31 Judgment in Kaka Ram’s case pertains to the period before amendment was carried in Sections 163 and 171 of HPLR Act in the year 1989.,

Therefore, on facts, it is not applicable now, except the observation that it is well settled that even if the statute gives finality to the orders of special",

tribunals, such a provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory",

tribunal has not acted in conformity with the fundamental principles of judicial procedure. (Also see: Dhulabhai etc. v. State of Madhya Pradesh,

and antoher, AIR 1969 SC 78).",

32 The Privy Council in Secretary of State vs. Mask & Co., AIR 1940 P.C. 105, has observed as under:",

“…..It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed",

or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act",

have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure…………â€​",

33 In Chuhniya Devi v. Jindu Ram, ILR 1990 (2) HP 391, this High Court had concluded that the Civil Court has no jurisdiction to go into any",

question connected with the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, except in a case",

where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure,

or where the provisions of the Act had not been complied with.,

34 Section 15 of the PP Act reads as under:,

“15. Bar of jurisdiction.-No Court shall have jurisdiction to entertain any suit or proceeding in respect of-,

(a) the eviction of any person who is in unauthorised occupation of any public premises, or",

(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5A, or",

(c) the demolition of any building or other structure made, or ordered to be made, under section 5B, or",

(cc)the sealing of any erection or work or of any public premises under section 5C, or",

(d) the arrears of rent payable under sub-section (1) of section 7 or damages payable under subsection (2), or interest payable under sub-section (2A); of that section,",

or,

(e) the recovery of--,

(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5A, or",

(ii) expenses of demolition under section 5B, or",

(iii) costs awarded to the Central Government or statutory authority under sub-section (5) of section 9, or",

(iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.â€​",

Section 15 of PP Act creates bar to the jurisdiction of Civil Court with respect to cases on the subject matter enumerated in the said Section, which creates bar to",

entertain a Civil Suit against the proceedings of eviction under PP Act. However, right of a person to protect his possession and claim of ownership on the",

premises/land on valid grounds cannot be taken away, as observed by the Division Bench of this Court in Chamaru Ram’s case, stating therein that there is no",

provision in the PP Act, which provides for summary proceedings for eviction from Government premises, to adjudicate the question of title raised by the occupant",

and, therefore, such occupant has to file a Civil Suit as or if permissible under law.",

35 It is apt to record that Section 46 of Himachal Pradesh Land Revenue Act permits filing of suit for declaratory decree by a person aggrieved by,

entry in record, which reads as under:",

“46 Suit for declaratory decree by person aggrieved by an entry in a record.- If any person considers himself aggrieved as to any right of which he is in possession,

by an entry in a record -of-rights or in a periodical record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1963 (Act",

No.47 of 1963).â€​,

36 Competent Revenue Officer, in terms of Section 163 of Himachal Pradesh Land Revenue Act, is empowered to initiate proceedings for eviction of",

unauthorized occupants from the encroached Government land. In this Section, a complete procedure has been provided to determine the question of",

title. Section 163 of HPLR Act reads as under:,

“163. Prevention of encroachment on lands.-(1) Where Government land or land which has been reserved for the site of the village or for common purposes or uses,

of the estate right holders or of the co-sharers therein, has been encroached upon by any person or co-sharers for any purpose including the construction of a",

building or other structures or by planting trees therein, then-",

(a) the Revenue Officer may of his own motion or on the report of the patwari of the circle duly verified by the Kanungo of the Circle or on the application of any,

estate right holder or co-sharers, after giving reasonable opportunity of being heard, shall eject him from such land by order within six months from the date of taking",

of cognizance or from the date of receipt of such report or from the date of filing of such application, as the case may be, however, the period may further be extended",

upto three months for the reasons to be recorded in writing, in the manner prescribed;",

(b) if the encroacher has erected any building or other structure or has planted trees on the encroached land, the same shall, in the prescribed manner, vest in the",

State Government free from all encumbrances:,

Provided that if the building or structure and attachments thereto are situated partly in the owned land of the encroacher and partly on the encroached land, the",

Revenue Officer shall be competent to demolish the portion of the building or structure on the encroached land if the encroacher fails to demolish it himself as,

ordered by the Revenue Officer; and,

(a) the Revenue Officer shall impose upon the encroacher a fine upto Rs.20,000/- or the prevalent market value of the land, whichever is higher per bigha or part",

thereof, which shall be recoverable, as if it were an arrear of land revenue.",

(2) If a person who has been evicted from any land under this section again occupies the land without authority for such occupation, he shall be punished with",

imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees or double the prevalent market value of the land,",

whichever is higher or with both:,

Provided that no court shall take cognizance under this sub-section of an offence unless a report in writing is made by a Revenue Officer not below the rank of,

Assistant Collector First Grade.,

(3) When there is a question as to title or to the adverse possession, wherein the possession is claimed by an encroacher for a period beyond thirty years in relation",

to the land from which ejectment is made or is to be made under this section, the Revenue Officer, not below the rank of an Assistant Collector of the First Grade, may",

proceed to determine the question, as if he were a civil court and shall exercise all such powers as are exercisable by a civil court.",

(4) For the determination of the question under sub-section,

(3), the Revenue Officer shall follow the same procedure as is applicable to the trial of an original suit by a civil court, and he shall record a judgement and decree",

containing the particulars required by the Code of Civil Procedure, 1908 (5 of 1908) to be specified therein.",

(5) An appeal from the decree of the Revenue Officer made under sub-section (4) shall lie to the District Judge as if that decree were a decree of a Subordinate Judge,

in an original suit.,

(6) A further appeal from the appellate decree of a District Judge upon an appeal under subsection (5), shall lie to the High Court only if the High Court is satisfied",

that a substantial question of law is involved.,

(7) No suit or other legal proceeding shall lie against the Revenue Officer or any person acting under this section in respect of anything in good faith done or,

purported to have been done under the provisions thereof or the rules made thereunder.,

Explanation.- For the purposes of this section, any person who holds land under a lease granted by the Government for a fixed term and continues to be in",

possession of the land beyond the expiry of the period of lease shall be deemed to be an encroacher unless such person gets the lease extended or renewed.â€​,

37 Section 171 of HPLR Act creates bar to invoke jurisdiction of Civil Court in matters within jurisdiction of Revenue Officer and with respect to,

matters related to encroachment as specific bar is there. Relevant provisions are as under:,

“171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- Except as otherwise provided by this Act-,

(1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take",

cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and in particular-,

(2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely-",

……….,

(xxv) any question, as to any land or any right to, or title or interest in, the land which is an encroached land or in relation to which any person claims that it has",

vested or is deemed to have vested in him and that he cannot be ejected therefrom under subsection (1) of section 163; and,

(xxvi)the ejectment of any person under section 163 of the recovery of damages or fine payable under sub-section (1) of that section.â€​,

38 Contrary to PP Act, Section 163(3) of HPLR Act provides that on raising question of title by the party against whom proceedings for eviction are",

initiated under Section 163 of the HPLR Act, the authority adjudicating the eviction proceedings shall convert into Civil Court to decide the question of",

title like a Civil Suit. For this reason, though under Section 46 of the HPLR Act, it has been provided that a Civil Suit for declaration, under Chapter VI",

of the Specific Relief Act, 1963, shall be maintainable if any person considers himself aggrieved as to any right of which he is possession by an entry",

in record-of-rights or in a periodical record, but, under Section 171(2)(xxv) of HPLR Act, a bar has been created from filing any Civil Suit, providing",

that a Civil Court shall not exercise jurisdiction over any question, as to any land or any right to, or title or interest in, the land which is an encroached",

land or in relation to which any person claims that it has vested or is deemed to have been vested in him and that he cannot be ejected therefrom,

under sub-section (1) of Section 163 of HPLR Act and similarly Section 172(2)(xxvi) of HPLR Act provides that Civil Court shall not exercise its,

jurisdiction with respect to matters with respect to the ejectment of any person under section 163 of the recovery of damages or fine payable under,

sub-section (1) of that section.,

39 Sub-sections (3) to (6) of Section 163 and Clauses (xxv) and (xxvi) of sub-section (2) of Section 171 as existing on date have been incorporated,

vide HP Act No.15 of 1989.,

40 Suit for declaratory decree, provided under Section 46 of HPLR Act, can be instituted on ripening or having title in the land at any time subject to",

law of limitation and before initiation of proceedings under Section 163(1) of HPLR Act. Bar to invoke jurisdiction of Civil Court provided under,

Section 171 of HPLR Act shall be applicable after initiation of proceedings under Section 163 but not before that, because there may be a situation",

where either for laxity or incompetency or otherwise, even for extraneous reasons, proceedings for eviction may not be initiated but possessor may",

have acquired title by afflux of time. After initiation of proceedings under Section 163(1) the encroacher has right to raise question of title before the,

concerned authority as provided under Section 163(3) and, in that eventuality, procedure provided under sub-sections (3) to (6) of Section 163 shall be",

followed. After initiation of proceedings under Section 163, there shall be Bar, as provided under Section 171(2)(xxv) & 171(2)(xxvi) of HPLR Act, to",

exercise jurisdiction by the Civil Court.,

41 We are of the considered opinion that on initiation of proceedings under Section 163 of HPLR Act for eviction, to remove the unauthorized",

occupation/encroachment, there is complete bar on filing a separate suit, for providing complete mechanism and vestment of power in the concerned",

authority to decide the question of title as a Civil Court, if raised during eviction proceedings. However, for having no such provision in the PP Act,",

aggrieved party definitely has a right to take recourse to separate remedy, for protection of his possession on claiming ownership right therein, as",

available and permissible under law.,

42 Before initiation of eviction proceedings under HPLR Act or PP Act, the encroacher can file a suit as provided under Section 46 of HPLR Act or",

otherwise as provided in any relevant law for declaration of title on culmination of such right upon the encroached land. However, after institution of",

proceedings under PP Act, any suit or proceeding before Civil Court may be permissible but subject to bar of jurisdiction provided under Section 15 of",

PP Act.,

43 Observations of the Supreme Court in Harphool Singh’s case, with respect to perfection of title by way of adverse possession, are also",

relevant, which read as under:",

“12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be",

considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a,

third party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy {(1957)1 SCR 195 : AIR 1957 SC 314} adverted to the ordinary,

classical requirement - that it should be nec vi, nec clam nec precario - that is the possession required must be adequate in continuity, in publicity and in extent to",

show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title,

by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus. In the decision reported in Secy. of",

State for India in Council v. Debendra Lal Khan {(1993) 61 IA 78 : 1934 All LJ 153 (PC)} strongly relied for the respondents, the Court laid down further that it is",

sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance,",

to be aware of what is happening and if the rights of the crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice. In,

Annasaheb Bapusaheb Patil v. Balwant {(1995) 2 SCC 543 : AIR 1995 SC 895} it was observed that a claim of adverse possession being a hostile assertion involving,

expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence",

that his possession was hostile to the real owner and in deciding such claim, the Courts must have regard to the animus of the person doing those acts.â€​",

44 It is relevant to consider that no question of title was raised in the reply filed by the petitioner before Collector/DFO and further that proceedings,

were initiated against the petitioner in the year 2016 and we are in 2024. But, till date, petitioner has not taken any steps to prove his title, if any, on the",

suit land by approaching competent court having jurisdiction to adjudicate the issue, whereas in affidavit filed in present petition, he has accepted the",

ownership of the State on the encroached land which renders the possession of petitioner a permissive possession nagating the plea of acquiring title,

of the land in reference by adverse possession. Therefore, we do not find any merit in the submissions made by learned counsel in this regard to grant",

interim protection in terms of Chamaru’s case.,

45 Moreover, petitioners are not precluded from availing appropriate remedy for redressal of their grievance, if any, as permissible under law and, for",

that, we are of the opinion that no such protection, as was granted in Chamaru’s case, is required. It is also apt to record that in Chamaru’s",

case, writ petition preferred by Chamaru against his eviction was dismissed by a Division Bench of this High Court. With reservation to agree with",

respect to the concession/liberty granted thereafter, which was extended in peculiar facts and circumstances of the case, we are of the opinion that",

concession/ interim protection granted after dismissal of the petition was and is not ratio of the judgment in the said case but was and is an observation,

made by the said Bench which is not a binding precedent.,

46 In case, petitioners have a legal remedy permissible under law, the same cannot be declined for non-grant of concession or interim protection to the",

petitioner, and in case no legal remedy is available to the petitioner, such remedy cannot be conferred for grant of concession or interim protection to",

the petitioner.,

47 Proceedings against the petitioners were initiated in March, 2016. The eviction orders were passed on 28.03.2016, which were assailed by",

petitioners by filing appeals and those appeals were decided on 24th October, 2016. Thereafter, present petitions were filed in January 2017. Neither",

at the time of proceedings pending under PP Act nor thereafter or even during the pendency of present petitions, petitioners have not chosen to take",

appropriate recourse of law for claiming their title, if any at all, was and is maintainable.",

48 Learned counsel for petitioners has submitted that reasons as well as documentary evidence for findings returned by the Collector that petitioners,

have encroached upon forest land are missing and, though, Collector has mentioned about demarcation report, report of Kanungo and confession of",

petitioners but there is no report or statement on record to substantiate the claim of Department about identity of land, encroachment thereon and",

confession of petitioners.,

49 Referring judgment of the Supreme Court in M/s Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay,r eported in",

(1989)3 SCC 293, especially paras 18 and 28 thereof, it has been contended that onus to prove the case of Department was entirely on the",

Department and further that petitioners were also having right to lead evidence to Show Cause Notices issued against them to prove contrary to the,

contention of Department regarding encroachment upon the forest land. It has been further contended that land in reference may be Government land,

but not the forest land, as there is no document to establish on record that land in reference is forest land and, therefore, Collector was not empowered",

to initiate the proceedings under PP Act, rather, if any proceedings were to be initiated, the same ought to have been initiated under H.P. Land",

Revenue Act for encroachment upon the Government land.,

50 It has been further submitted that requirement for initiation of proceedings by Collector-cum-Divisional Forest Officer is that State had to establish,

that the land in reference is forest land. Referring the order of the Supreme Court in T.N. Godavarman Thirumulkpad vs. Union of India and,

others, reported in (1997)2 SCC 267 (para 4), and judgment of the Supreme Court in said case reported in (2024)3 SCC 438 (paras 5, 6, and 70), it",

has been contended that land in reference in present case does not fall in the category of forest. In our view, the paras of aforesaid judgments,",

referred on behalf of petitioners, speak contrary to what has been contended on behalf of petitioners.",

51 Above referred para 4 of the order of T.N. Godavarman’s case (1997)2 SCC 267 is as under:-,

“4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the",

provisions made therein for the conservation of forests and fore matters connected therewith, must apply to all forests irrespective of the nature of ownership or",

classification thereof. The word ""forest: must be understood according to its dictionary meaning. This description cover all statutorily recognised forests, whether",

designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term ""forest land"", occurring in Section 2, will not",

only include ""forest"" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how",

it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the",

matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made,

abundantly clear in the decisions of this Court in Ambica Quarry Works and ors. versus State of Gujarat and ors. (1987 (1) SCC 213), Rural Litigation and Entitlement",

Kendra versus State of U.P. (1989 Suppl. (1) SCC 504), and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun",

Development Authority) in WP(C) No.749 of 95. The earlier decision of this Court in State of Bihar Vs. BanshiRam Modi and ors. (1985 (3) SCC 643 has, therefore, to",

be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this court to,

dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of",

Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this court. It is reasonable to",

assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial",

measures without any further delay.â€​,

52 Above referred paras 5, 6, and 70 in second order in T.N. Godavarman’s case [(2024)3 SCC 438] are as under:-",

“5. By an order dated 12-12-1996 in T.N. Godavarman Thirumulpad vs. Union of India (1997)2 SCC 267, this Court explained that the word “forest†for the",

purpose of Section 2(i) of the FCA, 1980 must be understood according to its dictionary meaning, and would cover “all statutorily recognized forests, whether",

designated as reserved, protected or otherwiseâ€. This Court further explained that the term “forest landâ€, occurring in Section 2 would include not only",

“forestâ€​as understood in the dictionary sense, but also “any area recorded as forest in the government record irrespective of the ownership.",

Further, this Court vide order dated 12.12.1996 in T.N. Godavarman Thirumulpad vs. Union of India, (1997)2 SCC 267 directed all the States to constitute an expert",

committee for the following tasks: (SCC p. 271, para 5)",

…..5….(i) Identify areas which are “forestsâ€, irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the",

ownership of the land of such forest;,

(ii) identify areas which were earlier forests but stand degraded denuded or cleared; and,

(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.,

.…….,

It is necessary to mention at this juncture, the application of criteria cannot be universally standardized across the country, as it is contingent upon the specific",

geography and geographical conditions prevalent in each State. Each State possesses its distinctive geographical features, and as a result, the criteria may vary from",

State,Description of the criteria/parameters

Himachal Pradesh,Compact blocks of wooded land above ha 1n extent.

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.,

68 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.",

69 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 14.11.2024 and compliance affidavit with respect to taking of possession on the spot,",

be filed by the concerned Divisional Forest Officer on or before 21.11.2024.,

70 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.,

71 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 14.01.2025 at his own cost.",

72 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.,

73 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.,

74 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.",

75 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.,

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

77 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 28.11.2024.",