Delhi District Court in Shakur Pur Jatav Samaj Kalyan Samiti vs. Surender Kumar Chadha & Ors. [13.10.2022]

IN THE COURT OF SH. VIKRAM, ADDL. SESSIONS 

JUDGE-02-CUM-SPECIAL JUDGE-NDPS ACT, NORTH 

WEST DISTRICT, ROHINI COURTS, DELHI 

Misc. Criminal No. 09/2019 

SHAKUR PUR JATAV SAMAJ KALYAN SAMITI 

(Through Sh. Jaipal Singh, Vice President 

& Authorized Representative) 

WZ-101, Shakurpur Village, 

Delhi-110034.                                                                                                                     .... Complainant 

Vs. 

1. Sh. SURENDER KUMAR CHADHA M/s. Shakti Timber 

2. Smt. GULSHAN CHADHA W/o Sh. Surender Kumar Chadha Sector-8, Rohini, Delhi-110085. 

3. Sh. RAVI ANAND S/o Late Sh. Ayodhaya Nath Anand Shakti Timber Store 

4. Sh. BRIJ MOHAN ANAND S/o Late Sh. Ayodhaya Nath Anand Shakti Timber Store 

All At : 

WZ-333, Shakurpur Village, 

Near Yadav Market, 

Delhi-110034.                                                                                                      .... Respondents/Accused

Date of Institution : 27.03.2019 

Date when judgment was reserved : 13.10.2022 

Date when judgment is pronounced : 13.10.2022 

ORDER ON SUMMONING

1. This is a complaint filed by the complainant under Section 200 Cr.P.C for summoning the accused persons namely Sh. Surender Kumar Chadha, Smt. Gulshan Chadha, Sh. Ravi Anand and Sh. Brij Mohan Anand for the commission of offence punishable under Section 3 (1) (iv) (v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Sections 420/506/34 IPC.

2. The allegations of the complainant are that the property/land bearing No. WZ-333, out of Khasra No. 30/4/11 measuring about 500 sq. yards, situated in the abadi of Lal Dora, Village Shakurpur, Delhi (land in question) was alloted to Harizan Gram Sabha in the year 1954 and after allotment of land to Gram Sabha, the said land remained under the physical possession and use of Harizan Gram Sabha duly represented by Harizan Sudhar Samiti Society. However, the accused persons through their associates wrongfully got a part of land in question transferred in their names in connivance with the then President of Society and thereby, grabbed the land of the complainant society. The complainant also submitted that some civil suits were also filed against the respondents/accused persons which were later on withdrawn and some other litigations are pending.

3. The main crux of the matter is that the accused persons by making false and fabricated documents had grabbed the land of Harizan Gram Sabha which had been specially alloted for SC members, therefore, the accused persons have committed an offence under Section 3 (1) (f) and (g) of SC/ST Act through forged and fabricated documents.

4. In the present complaint case, the complainant has examined only one witness in pre-summoning evidence and this witness is the AR of the complainant namely Sh. Jaipal Singh who has proved the resolution in his favour along with caste certificate and registration certificate of the society to represent Shakur Pur Jatav Samaj Kalayan Samiti.

The complainant has also brought on record the Khatauni for the year 2009-2010 issued on 07.02.2013 received through RTI application which shows that the land in question belongs to Harizan Sudhar Samiti, Shakurpur Village, Delhi.

5. I have heard Ld. Counsel for the complainant who has also placed reliance on the judgment of Hon'ble Supreme Court in Jagpal Singh & Ors. v. State of Punjab passed in Civil Appeal No. 1132/2011 dated 28.01.2011 as per which any land which is vested to Gram Sabha and is non-transferable, cannot be allowed to be un-authorizedly occupied by any means. Even if, there is long duration of such illegal occupation or huge expenditure in making constructions, it must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.

6. The complainant has not produced any document on record to show through which document the accused persons had entered into the land in question, however, he has filed the copy of order of civil suit as Mark A. Along with that, complainant has also filed the copy of written statement of accused No.1, 3 and 4. As per written statement, this land was initially alloted to Harizan Gram Sabha in the year 1954 and was in possession and control of Harizan Sudhar Samiti Society who issued an SPA in favour of Sh. Kanhaiya Lal, President of the society on 25.01.1975 and thereafter, on the basis of said SPA, Sh. Kanhaiya Lal sold the said land to Sh. Raj Singh Malik and Sh. Ram Kumar Malik on 07.02.1975 vide registered documents. The accused No. 1, 3 and 4 purchased this property from Sh. Raj Singh and Sh. Ram Kumar Malik vide notorized documents on 05.04.1980 and since then they are in possession of that property.

The testimony of CW-1 Sh. Jaipal Singh in pre-

summoning evidence only shows that the land in question was initially alloted to Gram Sabha and it is alleged that the accused persons had illegally encroached upon the land in question and thereby they had committed an offence under Section 3 (I) (f) and (g) of SC/ST Act. However, this land was sold by Samiti itself not directly to the accused persons but to one Sh. Raj Singh Malik and Sh. Ram Kumar (as gathered from the written statement filed on record in the suit filed by the complainant/petitioner) and the accused persons came into possession of this property in the year 1980 through notorized documents executed in their favour by Sh. Raj Singh and Sh. Ram Kumar Malik.

7. The allegations against accused persons are of conspiracy with the President of Harizan Sudhar Samiti Society to grab the land in question. However, it is beyond any stretch of imagination to assume or accept that the alleged accused persons who came into land in 1980 could have conspired with the President to grab the land in 1975 when he sold the property to Sh. Raj Singh and Sh. Ram Kumar Malik. The accused persons are not the first one who had taken land from Sh. Kanhaiya Lal. This land was initially sold to Raj Singh Malik and Ram Kumar and it is not alleged that they were part of any conspiracy. If Raj Singh and Ram Kumar had not done any illegal act, as they are not made an accused in this case, the purchase of property by the respondents/accused persons from Raj Singh and Ram Kumar cannot be termed illegal to attract the offence under Section 3 (i), (f) and (g) of SC/ST Act.

It is true that as per the judgment of Hon'ble Supreme Court in Jagpal Singh Vs. State of Punjab, every claim/occupation over Gram Sabha land by any person through any means is illegal and they need to vest back to Gram Sabha and authorities must act in that respect, however, if all such transfers are held to be an offence under Section 3(i) (f) and (g) of SC/ST Act, thousands of purchasers who have purchased land in such manner will have to be prosecuted. The Act was passed not to be used as a tool to attack the transactions between innocent buyers and sellers but to defend the right of the people belonging to SC/ST community.

Therefore, I do not find any material in the complaint or in the testimony of CW-1 sufficient enough to summon the accused persons. As there is no sufficient ground to proceed, the present complaint, in view of Section 203 Cr.P.C, is dismissed.

File be consigned to record room.

Copy of the order be given dasti.

(Vikram) 

Announced in Open Court 

ASJ­02­cum­Special Judge (NDPS), on 13th Day of October, 2022 

North­West District, Rohini Courts, Delhi.

Bombay HC: Ensure no further encroachments or regularisations on grazing lands [06.10.2022]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SUO MOTU PUBLIC INTEREST LITIGATION NO. 2 OF 2022

High Court on its Own Motion                                                         } Petitioner

versus

The State of Maharashtra and Ors.                                                     } Respondents

Mr. Ashutosh M. Kulkarni, Amicus Curiae.

Mr. P. P. Kakade, Government Pleader with Mr. M. M. Pabale, AGP for State.

CORAM: DIPANKAR DATTA, CJ.

                 MADHAV J. JAMDAR, J.

DATE: OCTOBER 6, 2022

P.C.:

1. In deference to our order dated 15th September 2022, Mr. R. S. Chavan, Joint Secretary, Revenue and Forest Department, Government of Maharashtra has filed an affidavit.

2. Under paragraph 6 of such affidavit are 3 (three) tables. The first table refers to the number of encroachments on Gairan/Government lands that have been removed between 12th July 2011 and 15th September 2022. The number is 24,513. The second table refers to the extent of regularization of encroached area till 12th July 2011. The number indicated is 12,652. However, the most alarming feature is found in the third table, which suggests that there are 2,22,153 illegal constructions on Gairan lands and the approximate encroached area measures 10,089 hectares.

3. Mr. Kulkarni, learned Amicus Curiae is right in pointing out that neither the basis for regularization of 12,652 encroachments till 12th July 2011 has been indicated in the affidavit nor has the deponent indicated with any degree of clarity what step/measure is in the contemplation of the Government of Maharashtra to remove the high number of encroachments, i.e., 2,22,153, and make 10,089 hectares land free from encroachments.

4. Having perused the affidavit of the Joint Secretary and bearing in mind the submissions advanced by Mr. Kulkarni, learned Amicus Curiae and Mr. Kakade, learned Government Pleader appearing for the respondents, we are of the considered opinion that there has only been a partial compliance of the directions issued by the Supreme Court in its decision in Jagpal Singh and Ors. vs. State of Punjab and Ors., reported in (2011) 11 SCC 396. 

5. In view of the aforesaid satisfaction reached by us, we make the following order: -

(i) There shall be no further regularization of any encroachment by any authority/officer of the Government until further orders of this Court, except in the manner directed by the Supreme Court in Jagpal Singh (supra). 

(ii) The Government of Maharashtra shall file a further affidavit indicating therein the basis for regularization of 12,652 encroachments till 12th July 2011 within 4 (four) weeks from date. 

(iii) In such affidavit, the Government of Maharashtra shall refer to the policy taken by it for removal of 2,22,153 encroachments on Gairan together with the road-map which it proposes to draw so as to facilitate removal of all encroachments by the end of this year. 

(iv) The Government of Maharashtra shall ensure that no further encroachments on Gairan lands take place, failing which this Court may be constrained to take appropriate steps against the persons responsible for checking that such encroachments do not take place. 

(v) It would desirable if a notice is issued by the Government of Maharashtra informing all its officers posted in the appropriate departments to keep a check on further encroachments on Gairan lands. 

6. List the PIL petition on 17th November 2022 for reporting compliance of this order

(MADHAV J. JAMDAR, J.)                                                         (CHIEF JUSTICE)

Bombay HC: Remove encroachment from gairan land [21.09.2022]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

NAGPUR BENCH, NAGPUR. 

CIVIL WRIT PETITION NO. 4498 OF 2022 

Anandrao Mahadeo Wankhede and ors. 

 -Vs- 

 The State of Maharashtra and ors.

Mr.R.H.Kamble, counsel for the petitioners. 

Mr.K.L.Dharmadhikari, A.G.P for respondent Nos.1 to 3. 

CORAM : SUNIL B.SHUKRE & G.A.SANAP, JJ.
DATE : 21.09.2022. 

1. Heard.

2. The petitioners are occupying e-class gairan land by making an encroachment upon it. It appears that the petitioners have made some construction on a portion of land and on the remaining part of the land, the petitioners have been making cultivation. According to the learned counsel for the petitioners, the petitioners are entitled for retention of land and also it's regularization as their case would be covered by section 2 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, (for short the Act, 2013). They submit that there is a provision made in Section 22A of Maharashtra Land Revenue Code, 1966 (for Short the "MLR Code") for diversion of any land for public purpose and the public purpose would only mean any of the purposes mentioned in section 2 of the Act of 2013. Learned counsel for the petitioners further submit that tree plantation is not a public purpose, while allotment of land to the petitioners, being in the nature of rehabilitation is a public purpose and, therefore, the gairan land can be diverted for that purpose under Section 22A of the MLR Code. He also submits that till it is done, the possession of the petitioners in respect of the gairan land, which is peaceful would have to be protected by this Court.

3. While, it is true that under Section 22A(2) of the MLR Code gairan land can be diverted for any public purpose or public project, the analogy being made by the learned counsel for the petitioners between the public purpose contemplated under the MLR Code and the public purpose contemplated under the Act of 2013, is skewed. The Act of 2013 regulates acquisition of private lands for public purpose and compensation to be paid for such acquisition, while Section 22A of the MLR Code does not deal with the acquisition of private lands, but deals with diversion of the public lands like the gairan land for public purpose. It does not contemplate granting of any compensation to anyone, even to an encroacher, for such diversion. Therefore, the provisions made in Section 2 of the Act of 2013 cannot be taken recourse to, to raise an objection that the gairan land cannot be diverted for the purpose of tree plantation on the ground that tree plantation is not a public purpose. In fact, we must say it here that it defies logic to say that plantation of trees on any public land, which achieves greater public interest and public welfare, is not a public purpose and therefore, the tree plantation must not be allowed and the possession of encroachers like the petitioners be protected.

4. There is a law settled long back by the Supreme Court in the Case of Jagpal Singh and ors .Vs. State of Punjab and ors. reported in 2011(11) SCC 396, wherein the Supreme Court has held that the lands like gairan lands are public utility lands of the villages and are used for the common benefit of the villagers of the village such as ponds, storage of harvested grain, grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, public festivals, recreational purposes, cart stands, water bodies, passages, cremation ground or graveyards, and so on and so forth.

5. It has further held that these lands were generally treated as inalienable in order that their status as community land was preserved. The Apex Court has also noted that after the independence, unfortunately, such gairan lands became object of illegal use by some unscrupulous persons using muscle power, money power or political clout and the result was that large chunks of these lands were converted into private use. It was because of such illegal activities being carried out on these gairan lands, that the Apex Court gave directions to all the State Governments in the country that they shall prepare schemes for eviction of illegal/unauthorised occupants of these lands and their regularisation be not permitted save in exceptional cases as for e.g, where lease is already granted under some Government notification to a landless labourer or any member of the Scheduled Castes/Scheduled Tribes but this was only to be done in exceptional cases or where there is already a school, dispensary or other public utility on the land.

6. The petitioners are private persons, who are by making encroachments on the gairan land, are illegally cultivating the gairan land. Admittedly, they have not been granted any lease, under any Government notification. The petitioners also do not fall under any other eligible categories or persons for seeking regularisation of their illegal possession of the gairan land. As such, none of the petitioners is entitled to any relief as claimed in this petition. This is not a fit case for making any intervention. The petition stands summarily dismissed.

                        (G.A.SANAP,J)                                                  (SUNIL B. SHUKRE,J) 

Supreme Court grants 'breathing time' to remove encroachment by hospital from water body [26.09.2022]

ITEM NO.27 

COURT NO.9 

SECTION XII 

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS 

Petition(s) for Special Leave to Appeal (C) No(s). 16298/2022 

(Arising out of impugned final judgment and order dated 06-09-2022 in WP No. 23977/2022 

passed by the High Court Of Judicature At Madras) 

KOPPERUNDEVI                                                                                 Petitioner(s) 

VERSUS 

THE DISTRICT COLLECTOR & ORS.                                           Respondent(s) 

(FOR ADMISSION and I.R. and IA No.136614/2022-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ) 

Date : 26-09-2022 

This petition was called on for hearing today. 

CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI 

HON'BLE MS. JUSTICE BELA M. TRIVEDI 

For Petitioner(s) Dr. Nanda Kishore, AOR 

For Respondent(s) 

UPON hearing the counsel the Court made the following 

O R D E R

The High Court of Judicature at Madras had expected in its order dated 30.11.2017 in W.P. No. 31168 of 2017, that the respondents shall take appropriate action for removal of encroachments in the watercourse, which included the land comprising Survey No. 134 at Virudhachalam Town. There had also been a contempt petition filed in the High Court bearing No. 1635 of 2022, alleging non-compliance of the order so passed by the High Court.

The authorities concerned having, thus, been jolted into action, the building in question, said to be housing a multi-speciality hospital, also came to be marked for removal, for being an encroachment over the land of watercourse/water body. As against this action, the petitioner attempted to invoke writ jurisdiction of the High Court while suggesting entitlement over the building in question, with reference to a property tax receipt of the year 2021-22. However, the petitioner essentially made the submissions before the High Court that she was ready to move to the alternative arrangement but required some breathing time for the same.

In the impugned order dated 06.09.2022, the High Court referred to the requirements of removal of encroachments with reference to the various decisions of this Court including that in Jagpal Singh v. State of Punjab: (2011) 11 SCC 396; and found no reason to grant any indulgence. Hence, the petitioner seeks special leave to appeal.

While seeking some relaxation/leniency, the petitioner has essentially stated as under: -

“The petitioner herein beg before this Hon’ble Court some time to vacate the Hospital run by the Petitioner in the name and style of “Deivam hospital” at Ulundurpet Road, Vridhachalam. The said hospital in running with 15 beds, upto 15 visiting doctors, 10 para medics such Nurses, lab technicians, ANMS and 15 non technical staff such as helpers, cashier, accountant, receptionist etc. Further, it is respectfully submitted that at present 15 in-patients taking treatment in the hospital and regularly 50 to 100 patients visit the hospital as out-patients. Further, the hospital has operation theater, ICU and lab facilities available and also wards such as common words, Special rooms and delivery wards etc. are available with the hospital.”  Learned senior counsel for the petitioner has also made a fervent plea for granting some time to vacate, particularly in view of the services being rendered in the hospital in question.

While rendering the health care services could be a laudable objective, establishment of a hospital for that purpose in the land of watercourse or water body cannot be countenanced. The reference to in-patients and other visiting patients is also seriously questionable, where a sympathy is sought to be gained with reference to their requirements.

We have no doubt that if the genuine case of a needy patient is before the revenue authorities, which include the District Collector, Cuddalore, they would take appropriate steps for ensuring alternative health care facilities to the patient concerned.

Though no relaxation as such appears available to the petitioner but, only for the purpose of extending some breathing time to the petitioner for removal of the moveables and making alternative arrangements, we are inclined to grant some time to the petitioner even without issuing notice to the respondents but, only until 10.10.2022.

Such a relaxation would be available to the petitioner only if she submits a specific undertaking to this Court supported by her affidavit within three days from today, that the building in question shall be vacated on or before 10.10.2022 and no hindrance would be caused in its removal after 10.10.2022; and further that she would not claim any compensation in regard to the removal of the encroachment as also shifting of movables. While removing the encroachment in question, the authorities shall, obviously, be expected to take appropriate care of the bona fide need of patients and provide them alternative medical support, if so required.

Having regard to the circumstances of the case, we are not disposing of this petition but would keep the same pending, while awaiting compliance from the petitioner as also from the respondents.

To avoid any ambiguity, we make it clear that another attempt to obstruct removal of encroachment was not countenanced by this Court, when we dismissed SLP(Civil) No. 15945 of 2022 on 19.09.2022, which was filed by Indra Nagar Residents Welfare Association while leaving it open for that petitioner to make appropriate request before the High Court as regards the prayer for alternative reliefs to its members, including that of rehabilitation. So far the present matter is concerned, a little breathing time is being provided to the petitioner subject to the undertaking as aforesaid only because of the reference to the likely difficulties of the patients, particularly indoor patients, who may require alternative arrangements. However, this order, in no way, absolve the authorities concerned from carrying out earnestly the task of removal of encroachments, as expected under the orders of the High Court.

List this matter on 17.10.2022.

 A copy of this order be forwarded to the District Collector, Cuddalore, for appropriate compliance and then, for submission of compliance report.