Subhash Chand v. State of HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 344 of 2017

Date of decision: 13.08.2024

Subhash Chand

…Petitioner.

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 Petitioner : Mr. Manohar and Ms. Mamta K. Bhatwan, Advocates, vice Mr. B.N. Sharma, Advocate.

For the Respondents: Mr. Anup Rattan, Advocate General, alongwith Mr. Baldev Negi, Additional Advocate General.

Vivek Singh Thakur, Judge (Oral)

Petitioner, in present case, has assailed order dated

15.09.2016, passed by the Divisional Commissioner, in Appeal No. 108 of 2016, titled as Subhash Chand vs. State of H.P. and others, whereby his eviction from the Government/forest land comprising Khasra No. 247, 274/1, 246/1, 246/2 measuring 0-11-80 hactare in Mauja Chetnol, Tehsil Jubbal, District Shimla, H.P., as directed vide order dated 18.03.2016, passed by Collector-cum-DFO, Rohru Forest Division Rohru, H.P., in case No. 1619/2016, has been affirmed.

1Whether the reporters of the local papers may be allowed to see the Judgment? Yes

¶2Learned counsel for the petitioner has submitted that in present case land has not been properly identified by conducting valid demarcation.

¶3From the record, it is apparent that petitioner had submitted an application for regularisation of his unauthorized occupation on the land in reference and the said case/application was submitted by the Revenue Authorities to the office of Divisional Forest Officer for regularisation.

¶4From the record, it is apparent that the petitioner had submitted his case for regularization, wherein he had also filed an affidavit admitting that he had encroached upon the aforesaid land.

¶5During pendency of present petition, an affidavit dated

05.05.2017 was filed by the petitioner, stating therein that he was ready and willing to relinquish the encroached land in case he was found in possession of land more than 5 bighas.

¶6From the material on record, confession made by the petitioner before the Collector-cum-DFO and the affidavit submitted by the petitioner, it is apparent that he is in unauthorized possession of forest land.

¶7In view of order to be passed herein after, 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.

¶8As 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.

¶9After going through the record, impugned order and averments made in the petition and also considering the submissions made by learned counsel for the petitioner, we do not find any merit in the petition and accordingly the same is dismissed.

¶10Consequentially, 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.

¶11The 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.

¶12Improvements/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 15th December 2024 at his own cost.

¶13It 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 Non Objection/Clearance Certificate about complete removal of everything from the spot wherefupon illegal structure had been raised.

¶14In 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.

¶15Aforesaid extended time is applicable to immovable but 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.

¶16Any 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.

¶17Entire aforesaid proceedings shall be video graphed and copy of videography be placed on record with affidavit.

¶18Learned 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. 13th August, 2024 (tarun)